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Transfers of Real Property from an Estate: Utah

When a person dies, his or her assets become part of their estate. Probate is the process of settling and distributing the decedent's estate to the people entitled to receive it. The Utah Uniform Probate Code, which sets forth the state's rules for this process, is codified at Title 75 of the Utah Code.

An estate can be probated formally or informally. Formal probate (under 75-3-401 et seq.) involves more court supervision and is typically reserved for situations in which there are disputes. Informal probate (under 73-3-301 et seq.) requires less court involvement and is the typical method of probate when there are no disagreements about who should serve as personal representative and the manner of administering the estate.

The extent to which the decedent's property is subject to administration in probate depends on the way assets are titled. In general, property that the decedent owns with one or more others with a survivorship right, property with a beneficiary designation, and property held in a trust are not subject to probate. For more information on nonprobate transfers, see 75-6-101 et seq.

In Utah, property devolves upon death to the people indicated by a decedent's will as devisees, or, in the absence of a will, to the person's heirs in accordance with 75-3-101. To transfer real property by devise, the will must first be declared valid by an order of informal probate by the registrar (75-3-102). When the decedent dies intestate (without a will), Utah's laws of intestate succession determine who inherits the decedent's property.

Administration of the estate begins with the court's issuance of letters to the personal representative (75-3-103). The personal representative (PR) is the fiduciary authorized by the court to administer the estate. Once appointed, the PR "is under a duty to settle and distribute the estate of the decedent...as expeditiously and efficiently as is consistent with the best interests of the estate" according to the provisions set forth in the decedent's will and in compliance with the Probate Code (75-3-703(1)).

The person asking to be appointed personal representative files an application with the district court of the county where the decedent resided at the time of death (75-3-201). A court-issued document, called either Letters Testamentary or Letters of Administration (depending on the testacy status of the decedent), formally appoints the PR and evidences the PR's authority to act on the estate's behalf. Anyone may apply for probate, but certain persons have priority to receive letters under 75-3-203. Along with the application for probate and appointment and the decedent's will (if applicable), the applicant should also file the decedent's death certificate.

Once equipped with letters, the PR may settle and distribute the estate without order or direction of the court (75-3-704). Common duties and responsibilities of the PR include taking inventory and making appraisal of the estate, contacting heirs and creditors, submitting accountings, filing the required legal documents, such as tax returns, and selling assets to pay debts and other expenses. Though property devolves to devisees or heirs upon the decedent's death by process of law, the PR reserves the right to recover property to pay unsecured debts (75-3-709).

After the time allotted for presentation of claims, the PR may begin to pay claims "after making provision for homestead, family, and support allowances" and costs and expenses of administration in the order set forth at 75-3-805 (75-3-807). Creditors' claims rank higher than those of distributees, so if the estate lacks the assets to pay creditors, then the distributees' shares are reduced (7-3-902).

Transactions that the PR is authorized to enter are outlined in 75-3-714, and include the sale of real property. To transfer title following a sale of real property, the PR executes a deed. A personal representative's deed is named after the executing officer, but typically carries the same covenants as a special warranty deed.

A special warranty deed is a statutory form under 57-1-12.5. By including the specific language that the grantor "conveys and warrants against all who claim by, through, or under the grantor," the PR covenants with the purchaser (grantee) that the property is free from encumbrances made by the grantor and that the grantor will defend the grantee's title against valid claims from persons arising from the time the grantor obtained title, but none other.

PR deeds name the personal representative as the granting party, reference the decedent, and cite information about the probated estate, such as the district court in which probate is opened and the case number assigned to the estate. To properly convey fee simple title, include the grantee's name, mailing address, and vesting information.

PR deeds have the same content requirements as any deed affecting title to real property, including a consideration statement of the value exchanged for the transfer, a legal description of the subject parcel, the tax identification number assigned by the taxing authority, and a recitation of the grantor's source of title. Any restrictions on the property should also be noted on the face of the deed. The PR must sign the deed in the presence of a notary public before recording in the appropriate county.

After the PR pays the estate's debts, he or she may proceed to distribute the estate in the manner established at 75-3-906. When a distribution of real property is made, the PR executes a deed of distribution "as evidence of the distributee's title to the property" (75-3-907). A recorded deed of distribution is "conclusive evidence that the distributee has succeeded to the interest" in the property "as against all persons interested in the estate" (75-3-908).

Because distributees automatically succeed to the decedent's interest by operation of law, a deed of distribution under 75-3-907 functions less as an instrument of transfer than as a release of the PR's power over the property and to establish marketable title. The deed of distribution functionally resembles a quitclaim deed, with the same contents noted above for transfers of real property.

In addition to meeting all standards for recorded documents, a water rights addendum under 57-3-109 is required. This form must be completed and signed by the grantor. Additional documentation, such as a copy of letters and an official death certificate, may be required, depending on the specific transaction. Submit the deed and supporting documents to the recording office of the county where the real property is situated.

This article is not exhaustive; it does not address more complex probate circumstances and does not address all informal probate procedures and requirements. It is important to seek legal advice to ensure compliance with the Probate Code. Consult a lawyer with questions about personal representative's deeds, deeds of distribution, and probate procedures in the State of Utah, as each situation is unique.

Related Topics: | Personal Representative | Probate | Utah |

July 4, 2018, Deeds.com - Information deemed reliable but not guaranteed, you should always confirm this information with the proper agency prior to acting. The materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. These materials are intended, but not promised or guaranteed to be current, complete, or up-to-date.

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