October 2000
Elder Law: Small Estates: A Probate Exception

Generally, an estate must be probated upon death, provided that the estate is not held by a trust. There is, however, an exception for “small estates.”

Under Utah Law, a “small estate” is one that does not exceed $25,000, after deducting all liens and encumbrances. For these small estates, all property other than real property can be collected by the heir or heirs of the estate by an affidavit.

In other words, if a person dies without owning any real estate and his or her estate does not exceed the small-estate limit of $25,000, then probate is not required. Any person claiming to be the rightful heir of the estate may present an affidavit to each and every holder of any property owned by the decedent’s estate.

The requirements for the contents of the affidavit are set forth in Part 12 of the Probate Code, specifically § 75-3-1201, Utah Code Annotated. While an attorney may be helpful in preparing such an affidavit, anyone can prepare their own affidavit by following the requirements in the foregoing statute.

The minimal requirements for the affidavit’s contents are to state that: (1) the value of the entire estate does not exceed $25,000; (2) thirty days have passed since the death of the decedent; (3) no application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction; and (4) the person claiming the property is entitled to the property.

Upon presentation of the required affidavit, the holder of decedent’s property is required to turnover such property to the person claiming it. That is, if the property consists of money in a bank account, the affidavit should be presented to the bank. Upon presentation, the bank should readily and expeditiously turnover all funds in the account of the decedent, less any charges due the bank by the decedent.

Similarly, assume the decedent owned stock which was held by a brokerage company. Upon presentation of a duly prepared affidavit, the brokerage company should transfer the stock to the person claiming it.

In both of the foregoing situations, no probate court is involved. The individual claiming the property only has to complete a single affidavit and present it to each of those institutions or persons holding the property claimed.

Title to no more than four vehicles, boats, trailers, and semitrailers is also covered. By presenting, along with the appropriate fees, to the Motor Vehicle Division a required affidavit, title may be transferred directly to the claimant. The contents of the required affidavit is similar but not identical to the contents detailed above. The required contents can be found in the same statute cited above.

With respect to real estate owned by the decedent, the simple affidavit process is not permitted. Rather, the claimant must apply for informal or formal probate. This is not a major problem in either time or costs.

The Probate Court approves the appointment of a personal representative. After that, the Probate Court is generally not involved in the sale or distribution of the real estate (or real property). All such administration of the estate of the decedent is handled by the personal representative.

The time generally required to appoint the personal representative is less than thirty days. If all the heirs of the estate are local, they can sign a waiver of notice and the appointment can be achieved in a single day. The costs may vary by attorney, but generally the costs will be $1,000 to $1,200, plus the filing fee of $120 paid to the Probate Court.

It should be noted that the $25,000 limit for small estates is, in today’s dollars, quite small. This amount has not been updated for many years. In contrast, our neighboring state Wyoming has a similar small estate provision of $75,000—three times Utah’s minimum. The readers are invited to contact their legislative representatives and ask that the minimum to qualify for small estates be increased. It is far less time consuming and costly to prepare an affidavit that to file and application or petition with the Probate Court.

In the meanwhile, Utah’s citizens should at least utilize the affidavit process for those estates which qualify. To assist in preparing an affidavit under the Small Estate Exception, it is best to consult with an Elder Law Attorney. To locate an Elder Law Attorney, check with the National Academy of Elder Law Attorneys at (520) 881-4005, or your local Yellow Pages.

YOUR QUESTIONS: Do you have a particular question that you would like answered? To better serve the readers of the Utah Spirit, please direct your questions in writing to Michael A. Jensen, Elder Law Attorney, PO Box 571708, Salt Lake City, Utah 84157-1708, or by e-mail at: mike-spirit@utahattorney.com. From time to time, I will attempt to answer some of those questions.