Assets that generally do not go through probate are 1) jointly owned assets that transfer to the surviving owner; 2) assets that have a valid beneficiary designation; and 3) assets that are in a trust. However, these assets do not always avoid probate.

Jointly Owned Assets.

Jointly owned assets that transfer to the surviving owner do not go through probate. (This kind of joint ownership is “joint ownership (or joint tenants) with right of survivorship.”) But if the surviving owner dies without adding another owner, or if both owners die at the same time, the asset must be probated before it can go to the heirs.

You should be aware that transfer of this ownership happens immediately upon the first owner’s death. So, even if your will says you want someone else to receive your share (like your children from a previous marriage) and you die first, the asset will still go to the surviving owner who can then do whatever he/she wants with it—and your children would likely be disinherited.

Another kind of joint ownership is tenants-in-common. With this kind of joint ownership, if you die first, your share will be distributed as directed in your will (or to your heirs if there is no will); it will not go to the other owner unless your will says so. This lets you control who receives your share, but the asset will have to go through probate.

Beneficiary Designations

Some assets—including insurance policies, IRAs, retirement plans and some bank accounts—let you name a beneficiary. When you die, these assets will be paid directly to the person(s) you have named as beneficiary without probate. Well, that is the way it is supposed to work, but it doesn’t always happen that way.

  • If your beneficiary dies before you or at the same time as you, the proceeds will have to go through probate so they can be distributed with your other assets.
  • If your beneficiary is incapacitated, the probate court will probably take control of the funds through a guardianship/conservatorship. This is because the institution will not knowingly pay to an incompetent person and will usually insist on court supervision.
  • If you list “my estate” as beneficiary, the court will have to determine who “my estate” is. The funds will go through probate and be distributed with your other assets.
  • If you name a minor as beneficiary, a probate court will probably have to establish a guardianship for the child. Most institutions will not pay directly to a minor or to another person for the child’s benefit; they do not want the potential legal liabilities and will usually require proof of a court-supervised guardianship.

Trust Assets

Assets in a trust, like a revocable living trust, avoid probate. However, if you have a trust in your will (called a testamentary trust), your assets will not avoid probate. The will and your assets will have to go through probate before the trust can go into effect. Any assets you leave out of your living trust will probably also have to go through probate.

Vickie Schumacher

Can we avoid probate if the estate is small?

In Utah there is a time limit for filing a probate.  The Utah probate code requires a probate to be filed within three years after the death of the person.  (See Utah Code section 75-3-107) After that time, an action to declare heirs under the Utah laws of intestacy may be filed, but the will cannot be probated and followed.  

How long does a Utah probate take?

In an emergency, we can file the documents and have a Personal Representative appointed in one week day if the courts are open. A non-emergency probate can be completed in as little as three weeks if all of the creditors are known, property does not need to be sold, and the family and heirs agree on everything.

Probates will take much longer if the Personal Representative needs to advertise for heirs, if property needs to be sold, or if the heirs do not agree to everything. Disputes among the heirs can lengthen a probate by months or years.

Who is an “interested person” under Utah Probate Law?

Interested persons have special rights in a Utah probate. An “interested person” includes heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent, ward, or protected person.” (Utah Code Ann. §75-1-201(24))  Businesses, trusts and other entities are persons under this definition.

Let us at Ruesch and Reeve Legal help you today

At Ruesch and Reeve we work to understand your estate planning goals and develop the strategy to implement those to protect your family’s success. We provide standard estate planning for smaller estates, including preparation of simple wills and trusts always providing expert advice. We also specialize in estate planning for large more complex estates including preparation of complex wills and trust agreements, tax planning advice, implementing probate avoidance techniques, initiating gifting programs and rearrangement of property ownership and beneficiary designations to achieve estate planning goals .