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title-75•Title 75 — Utah Uniform Probate Code
This title shall be known and may be cited as the "Utah Uniform Probate Code."
(1) This title shall be liberally construed and applied to promote its underlying purposes and policies.
(2) The underlying purposes and policies of this title are:
(a) to simplify and clarify the law concerning the affairs of decedents, missing persons, protected persons, minors, and incapacitated persons;
(b) to discover and make effective the intent of a decedent in distribution of the decedent's property;
(c) to promote a speedy and efficient system for administering the estate of the decedent and making distribution to the decedent's successors;
(d) to facilitate use and enforcement of certain trusts; and
(e) to make uniform the law among the various jurisdictions.
Unless displaced by the particular provisions of this title, the principles of law and equity supplement the provisions of this title.
If any provision of this title or the application of this title to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of this title that can be given effect without the invalid provision or application, and to this end the provisions of this title are declared to be severable.
This title is a general act intended as a unified coverage of the title's subject matter, and no part of this title shall be deemed impliedly repealed by subsequent legislation if it can reasonably be avoided.
(1) Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this title or if fraud is used to avoid or circumvent the provisions or purposes of this title, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person, other than a bona fide purchaser, benefitting from the fraud, whether innocent or not.
(2) Any proceeding must be commenced within three years after the discovery of the fraud, but no proceeding may be brought against one not a perpetrator of the fraud later than five years after the time of commission of the fraud.
(3) This section has no bearing on remedies relating to fraud practiced on a decedent during the decedent's lifetime which affects the succession of the decedent's estate.
(1) In addition to the rules of evidence in courts of general jurisdiction, the following rules relating to a determination of death and status apply:
(a) Death occurs when an individual is determined to be dead as provided in Section 26B-8-132.
(b) A certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred is prima facie evidence of the fact, place, date, and time of death and the identity of the decedent.
(c) A certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, that an individual is missing, detained, dead, or alive is prima facie evidence of the status and of the dates, circumstances, and places disclosed by the record or report.
(d) In the absence of prima facie evidence of death under Subsection (1)(b) or (c), the fact of death may be established by clear and convincing evidence, including circumstantial evidence.
(e) An individual whose death is not established under Subsection (1)(a), (b), (c) or (d) who is absent for a continuous period of five years, during which the individual has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead. The individual's death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier.
(f) In the absence of evidence disputing the time of death stated on a document described in Subsection (1)(b) or (c), a document described in Subsection (1)(b) or (c) that states a time of death 120 hours or more after the time of death of another individual, however the time of death of the other individual is determined, establishes by clear and convincing evidence that the individual survived the other individual by 120 hours.
(2) The right and duty to control the disposition of a deceased person shall be governed by Sections 58-9-601 through 58-9-604.
For the purpose of granting consent or approval with regard to the acts or accounts of a personal representative or trustee, including relief from liability or penalty for failure to post bond, or to perform other duties, and for purposes of consenting to modification or termination of a trust or to deviation from its terms, the sole holder or all co-holders of a presently exercisable general power of appointment, including one in the form of a power of amendment or revocation, are deemed to act for beneficiaries to the extent their interests (as objects, takers in default, or otherwise) are subject to the power.
(1) From the inception of the trust or estate, a fiduciary shall have the following powers, without court authorization, which it may use in its sole discretion to comply with environmental law:
(a) to inspect and monitor property held by the fiduciary, including interests in sole proprietorships, partnerships, or corporations and any assets owned by any such business enterprise, for the purpose of determining compliance with environmental law affecting the property and to respond to any actual or threatened violation of any environmental law affecting the property held by the fiduciary;
(b) to take, on behalf of the estate or trust, any action necessary to prevent, abate, or otherwise remedy any actual or threatened violation of any environmental law affecting property held by the fiduciary, either before or after the initiation of an enforcement action by any governmental body;
(c) to refuse to accept property if the fiduciary determines that any property to be donated to the trust or estate either is contaminated by any hazardous substance or is being used or has been used for any activity directly or indirectly involving hazardous substance which could result in liability to the trust or estate or otherwise impair the value of the assets held in the trust or estate;
(d) to settle or compromise at any time any and all claims against the trust or estate which may be asserted by any governmental body or private party involving the alleged violation of any environmental law affecting property held in trust or in an estate;
(e) to disclaim any power granted by any document, statute, or rule of law which, in the sole discretion of the fiduciary, may cause the fiduciary to incur personal liability under any environmental law; or
(f) to decline to serve as a fiduciary if the fiduciary reasonably believes that there is or may be a conflict of interest between it in its fiduciary capacity and in its individual capacity because of potential claims or liabilities which may be asserted against it on behalf of the trust or estate because of the type or condition of assets held in the trust or estate.
(2) For purposes of this section "environmental law" means any federal, state, or local law, rule, regulation or ordinance relating to protection of the environment or human health. For purposes of this section, "hazardous substances" means any substance defined as hazardous or toxic or which is otherwise regulated by any environmental law.
(3) The fiduciary is entitled to charge the cost of any inspection, review, abatement, response, cleanup, or remedial action authorized in this section against the income or principal of the trust or estate. A fiduciary shall not be personally liable to any beneficiary or other party for any decrease in value of assets in trust or in an estate by reason of the fiduciary's compliance with any environmental law, specifically including any reporting requirement under the law. Neither the acceptance by the fiduciary of property or a failure by the fiduciary to inspect property shall be considered to create any inference as to whether or not there is or may be any liability under any environmental law with respect to the property.
(4) This section applies to all estates and trusts in existence upon and created after July 1, 1991.
(5) No exercise by a fiduciary of any of the powers granted in this section shall constitute a transaction which is affected by a substantial conflict of interest on the part of the fiduciary.
(1) In this section:
(a) "CPI" means the Consumer Price Index (Annual Average) for All Urban Consumers (CPI-U), U.S. City Average, reported by the Bureau of Labor Statistics, United States Department of Labor or its successor or, if the index is discontinued, an equivalent index reported by a federal authority. If no such index is reported, the term means the substitute index adopted by the Administrative Office of the Courts.
(b) "Reference base index" means the CPI for calendar year 2009.
(2) The dollar amounts stated in Subsection 75-2-202(2) and Sections 75-2-102, 75-2-402, 75-2-403, and 75-2-405 apply to the estate of a decedent who died in or after 2010, but for the estate of a decedent who died after 2011, these dollar amounts shall be increased or decreased if the CPI for the calendar year immediately preceding the year of death exceeds or is less than the reference base index. The amount of any increase or decrease is computed by multiplying each dollar amount by the percentage by which the CPI for the calendar year immediately preceding the year of death exceeds or is less than the reference base index. If any increase or decrease produced by the computation is not a multiple of $100, the increase or decrease is rounded down, if an increase, or up, if a decrease, to the next multiple of $100, but for the purpose of Section 75-2-405, the periodic installment amount is the lump sum amount divided by 12. If the CPI for 2009 is changed by the Bureau of Labor Statistics, the reference base index shall be revised using the rebasing factor reported by the Bureau of Labor Statistics, or other comparable data if a rebasing factor is not reported.
(3) Before February 1, 2011, and before February 1 of each succeeding year, the Administrative Office of the Courts shall publish a cumulative list, beginning with the dollar amounts effective for the estate of a decedent who died in 2011, of each dollar amount as increased or decreased under this section.
(1) This title takes effect on July 1, 1977.
(2) Except as otherwise provided by this title:
(a) this title applies to any wills of decedents dying on or after July 1, 1977;
(b) the title applies to any proceedings in court that are pending or commenced on or after July 1, 1977, regardless of the time of the death of decedent except to the extent that in the opinion of the court the former procedure should be made applicable in a particular case in the interest of justice or because of infeasibility of application of the procedure of this title;
(c) every personal representative including a person administering an estate of a minor or incompetent holding an appointment on July 1, 1977, continues to hold the appointment but has only the powers conferred by this title and is subject to the duties imposed with respect to any act occurring or done on or after July 1, 1977;
(d)
(i) an act done before July 1, 1977, in any proceeding and any accrued right is not impaired by this title; and
(ii) if a right is acquired, extinguished or barred upon the expiration of a prescribed period of time which has commenced to run by the provisions of any statute before July 1, 1977, the provisions shall remain in force with respect to that right; and
(e) any rule of construction or presumption provided in this title applies to instruments executed and multiple-party accounts opened before July 1, 1977, unless there is a clear indication of a contrary intent.
As used in this title:
(1) "Agent" includes an attorney-in-fact under a durable or nondurable power of attorney, an individual authorized to make decisions concerning another's health care, and an individual authorized to make decisions for another under a natural death act.
(2) "Application" means a written request to the registrar for an order of informal probate or appointment under Chapter 3, Part 3, Informal Probate and Appointment Proceedings.
(3)
(a) "Beneficiary," as it relates to trust beneficiaries, includes:
(i) a person who has any present or future interest, vested or contingent; and
(ii) the owner of an interest by assignment or other transfer.
(b) "Beneficiary," as it relates to a charitable trust, includes any person entitled to enforce the trust.
(c) "Beneficiary," as it relates to a beneficiary of a beneficiary designation, means a beneficiary of:
(i) an insurance or annuity policy;
(ii) an account with POD designation;
(iii) a security registered in beneficiary form (TOD);
(iv) a pension, profit-sharing, retirement, or similar benefit plan; or
(v) other nonprobate transfer at death.
(d) "Beneficiary," as it relates to a beneficiary designated in a governing instrument, includes:
(i) a grantee of a deed, a devisee, a trust beneficiary, a beneficiary of a beneficiary designation, a donee, appointee, or taker in default of a power of appointment; and
(ii) a person in whose favor a power of attorney or a power held in any individual, fiduciary, or representative capacity is exercised.
(4) "Beneficiary designation" means a governing instrument naming a beneficiary of an insurance or annuity policy, of an account with POD designation, of a security registered in beneficiary form (TOD), or of a pension, profit-sharing, retirement, or similar benefit plan, or other nonprobate transfer at death.
(5)
(a) "Child" includes any individual entitled to take as a child under this title by intestate succession from the parent whose relationship is involved.
(b) "Child" does not include an individual who is only a stepchild, a foster child, a grandchild, or any more remote descendant.
(6)
(a) "Claims," in respect to estates of decedents and protected persons, includes liabilities of the decedent or protected person, whether arising in contract, in tort, or otherwise, and liabilities of the estate which arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration.
(b) "Claims" does not include estate or inheritance taxes, or demands or disputes regarding title of a decedent or protected person to specific assets alleged to be included in the estate.
(7) "Community property with a right of survivorship" means joint tenants with the right of survivorship.
(8) "Conservator" means a person who is appointed by a court to manage the estate of a protected person.
(9) "Court" means any of the courts of record in this state having jurisdiction in matters relating to the affairs of decedents.
(10) "Descendant" means all of an individual's descendants of all generations, with the relationship of parent and child at each generation being determined by the definition of child and parent contained in this title.
(11) "Devise," when used as a noun, means a testamentary disposition of real or personal property and, when used as a verb, means to dispose of real or personal property by will.
(12) "Devisee" means any person designated in a will to receive a devise. For the purposes of Chapter 3, Probate of Wills and Administration, in the case of a devise to an existing trust or trustee, or to a trustee in trust described by will, the trust or trustee is the devisee, and the beneficiaries are not devisees.
(13) "Disability" means cause for a protective order as described by Section 75-5-401.
(14) "Distributee" means any person who has received property of a decedent from his personal representative other than as a creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increment thereto remaining in his hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee of the personal representative. For purposes of this provision, "testamentary trustee" includes a trustee to whom assets are transferred by will, to the extent of the devised assets.
(15) "Estate" includes the property of the decedent, trust, or other person whose affairs are subject to this title as originally constituted and as it exists from time to time during administration.
(16) "Exempt property" means that property of a decedent's estate which is described in Section 75-2-403.
(17) "Fiduciary" includes a personal representative, guardian, conservator, and trustee.
(18) "Foreign personal representative" means a personal representative of another jurisdiction.
(19) "Formal proceedings" means proceedings conducted before a judge with notice to interested persons.
(20) "General personal representative" does not include a special administrator.
(21) "General power of appointment" means the same as that term is defined in Section 75A-4-102.
(22) "Governing instrument" means a deed, will, trust, insurance or annuity policy, account with POD designation, security registered in beneficiary form (TOD), pension, profit-sharing, retirement, or similar benefit plan, instrument creating or exercising a power of appointment or a power of attorney, a supported decision-making agreement, or a dispositive, appointive, or nominative instrument of any similar type.
(23)
(a) "Guardian" means a person appointed by the court to make decisions with respect to the personal affairs of an individual.
(b) "Guardian" includes a coguardian.
(c) "Guardian" does not include a guardian ad litem.
(24) "Heirs," except as controlled by Section 75-2-711, means persons, including the surviving spouse and state, who are entitled under the statutes of intestate succession to the property of a decedent.
(25) "Incapacitated" means an adult's ability to do the following is functionally impaired to the extent that the individual lacks the ability, even with appropriate technological assistance, to meet the essential requirements for financial protection or physical health, safety, or self-care:
(a) receive and evaluate information;
(b) make and communicate decisions; or
(c) provide for necessities such as food, shelter, clothing, health care, or safety.
(26) "Incapacity" means the state of being incapacitated.
(27) "Informal proceedings" mean a proceeding conducted without notice to interested persons by an officer of the court acting as a registrar for probate of a will or appointment of a personal representative.
(28)
(a) "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. The meaning of interested person as it relates to particular persons may vary from time to time and is determined according to the particular purposes of, and matter involved in, any proceeding.
(b) "Interested person" includes persons having priority for appointment as personal representative, other fiduciaries representing interested persons, a settlor of a trust, if living, or the settlor's legal representative, if any, if the settlor is living but incapacitated.
(29) "Issue" means a descendant of an individual.
(30)
(a) "Joint tenants with the right of survivorship" includes coowners of property held under circumstances that entitle one or more to the whole of the property on the death of the other.
(b) "Joint tenants with the right of survivorship" does not include forms of coownership registration in which the underlying ownership of each party is in proportion to that party's contribution.
(31) "Lease" includes an oil, gas, or other mineral lease.
(32) "Letters" includes letters testamentary, letters of guardianship, letters of administration, and letters of conservatorship.
(33) "Minor" means an individual who is under 18 years old.
(34) "Minor protected person" means a minor for whom a conservator has been appointed because of minority.
(35) "Minor ward" means a minor for whom a guardian has been appointed solely because of minority.
(36) "Mortgage" means any conveyance, agreement, or arrangement in which property is used as security.
(37) "Nongeneral power of appointment" means the same as that term is defined in Section 75A-4-102.
(38) "Nonresident decedent" means a decedent who was domiciled in another jurisdiction at the time of the decedent's death.
(39) "Organization" means an association, a business trust, a corporation, a partnership, a government or governmental subdivision, agency, or instrumentality, an estate, a limited liability company, a joint venture, a trust, or any other legal or commercial entity.
(40)
(a) "Parent" includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent under this title by intestate succession from the child whose relationship is in question.
(b) "Parent" does not include any person who is only a stepparent, foster parent, or grandparent.
(41) "Payor" means a trustee, insurer, business entity, employer, government, governmental agency or subdivision, or any other person authorized or obligated by law or a governing instrument to make payments.
(42) "Person" means an individual or an organization.
(43) "Personal representative" means an executor, an administrator, a successor personal representative, a special administrator, or a person who performs substantially the same function under the law governing the person's status.
(44) "Petition" means a written request to the court for an order after notice.
(45) "Power of appointment" means the same as that term is defined in Section 75A-4-102.
(46) "Proceeding" includes action at law and suit in equity.
(47) "Property" means anything that may be the subject of ownership, whether real or personal, legal or equitable, or any interest in anything that may be the subject of ownership.
(48) "Protected person" means a person for whom a conservator has been appointed.
(49) "Protective proceeding" means a proceeding described in Section 75-5-401.
(50) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(51) "Registrar" means the official of the court designated to perform the functions of registrar as provided in Section 75-1-307.
(52) "Security" includes any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest, or participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease, collateral trust certificate, transferable share, voting trust certificate, and, in general, any interest or instrument commonly known as a security, or any certificate of interest or participation, any temporary or interim certificate, receipt, or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of the foregoing.
(53) "Settlement," in reference to a decedent's estate, includes the full process of administration, distribution, and closing.
(54) "Settlor" means the same as that term is defined in Section 75B-1-101.
(55) "Sign" means, with present intent to authenticate or adopt a record other than a will that is not an electronic will as defined in Section 75-2-1402:
(a) to execute or adopt a tangible symbol; or
(b) to attach to or logically associate with the record an electronic symbol, sound, or process.
(56) "Special administrator" means a personal representative as described in Sections 75-3-614 through 75-3-618.
(57) "State" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, any territory or insular possession subject to the jurisdiction of the United States, or a Native American tribe or band recognized by federal law or formally acknowledged by a state.
(58) "Successor personal representative" means a personal representative, other than a special administrator, who is appointed to succeed a previously appointed personal representative.
(59) "Successors" means persons, other than creditors, who are entitled to property of a decedent under the decedent's will or this title.
(60) "Supervised administration" means the proceedings described in Chapter 3, Part 5, Supervised Administration.
(61)
(a) "Survive" means, except for Chapter 6, Part 3, Uniform Transfer on Death Security Registration Act, that an individual has neither predeceased an event, including the death of another individual, nor is considered to have predeceased an event under Section 75-2-104 or 75-2-702.
(b) "Survive" includes its derivatives, such as "survives," "survived," "survivor," and "surviving."
(62) "Testacy proceeding" means a proceeding to establish a will or determine intestacy.
(63) "Testator" means an individual, of either sex, who has made a will.
(64) "Trust" means the same as that term is defined in Section 75B-1-101.
(65) "Trustee" means the same as that term is defined in Section 75B-1-101.
(66) "Ward" means an individual for whom a guardian has been appointed.
(67)
(a) "Will" means a writing or other record:
(i) by which an individual directs the disposition of the individual's estate upon the individual's death; and
(ii) only effective upon the death of the individual.
(b) "Will" includes a writing or the other record described in Subsection (67)(a) that is:
(i) a codicil; or
(ii) an instrument that merely:
(A) appoints a personal representative;
(B) nominates a guardian for a minor or an individual who is incapacitated;
(C) revokes or revises a prior writing or other record described in Subsection (67)(a); or
(D) expressly limits or excludes the right of an individual or class to succeed to property by interstate succession.
Except as otherwise provided in this title, this title applies to:
(1) the affairs and estates of decedents, missing persons, and persons to be protected, domiciled in this state;
(2) the property of nonresidents located in this state or property coming into the control of a fiduciary who is subject to the laws of this state;
(3) incapacitated persons and minors in this state;
(4) survivorship and related accounts in this state; and
(5) trusts subject to administration in this state.
(1) To the full extent permitted by the Constitution of Utah, the court has jurisdiction over all subject matter relating to:
(a) estates of decedents, including construction of wills and determination of heirs and successors of decedents, and estates of protected persons;
(b) protection of minors and incapacitated persons; and
(c) trusts.
(2) The court has full power to make orders, judgments, and decrees and take all other action necessary and proper to administer justice in the matters which come before it.
(1) Where a proceeding under this title could be maintained in more than one place in this state, the court in which the proceeding is first commenced has the exclusive right to proceed.
(2)
(a) If proceedings concerning the same estate, protected person, ward, or trust are commenced in more than one court of this state:
(i) the court in which the proceeding was first commenced shall continue to hear the matter; and
(ii) the other court shall hold the matter in abeyance until the question of venue is decided.
(b) If the ruling court determines that venue is properly in another court, the ruling court shall transfer the proceeding to the other court.
(3) If a court finds that in the interest of justice a proceeding or a file should be located in another court of this state, the court making the finding may transfer the proceeding or file to the other court.
(4)
(a) The court in which any proceeding under this title is pending may make any order relating to the proceeding in chambers at any place in the court's district, and the order shall have the same force and effect as if made by the court sitting in the proper county.
(b) The hearing of any matter requiring notice shall be had at the time and place appointed or at the time to which the same may be postponed, except that where there is no contest or where all the parties consent, the hearing may be had at any place within the judicial district in which the matter is pending.
Unless specifically provided to the contrary in this title or unless inconsistent with this title's provisions, the Utah Rules of Civil Procedure, including the rules concerning vacation of orders and appellate review, govern formal proceedings under this title.
(1) The clerk of the court shall keep a record for each decedent, ward, protected person, or trust involved in any document which may be filed with the court under this title, including petitions and applications, demands for notices or bonds, and of any orders or responses relating thereto by the registrar or court, and establish and maintain a system for indexing, filing, or recording which is sufficient to enable users of the records to obtain adequate information.
(2) Upon payment of the fees required by law the clerk must issue certified copies of any probated wills, letters issued to personal representatives, or any other record or paper filed or recorded.
(3) Certificates relating to probated wills must indicate whether the decedent was domiciled in this state and whether the probate was formal or informal.
(4) Certificates relating to letters must show the date of appointment.
(1) If duly demanded, a party is entitled to trial by jury in a formal testacy proceeding and any proceeding in which any controverted question of fact arises as to which any party has a statutory or constitutional right to trial by jury.
(2) If there is no right to trial by jury under Subsection (1) of this section or the right is waived, the court in its discretion may call a jury to decide any issue of fact, in which case the verdict is advisory only.
The registrar shall be a judge of the court.
Appellate review, including the right to appellate review, interlocutory appeal, provisions as to time, manner, notice, appeal bond, stays, scope of review, record on appeal, briefs, arguments and power of the appellate court, is governed by the rules applicable to the appeals to the Supreme Court in equity cases from the court of general jurisdiction, except that in proceedings where jury trial has been had as a matter of right, the rules applicable to the scope of review in jury cases apply.
(1) Except as otherwise specifically provided in this title or by rule, every document filed with the court under this code, including applications, petitions, and demands for notice, shall be deemed to include an oath, affirmation, or statement to the effect that its representations are true as far as the person executing or filing it knows or is informed.
(2) Penalties for perjury may follow deliberate falsification therein.
When not otherwise prescribed in this title, the court, or an appellate court on appeal from the court, may in the court's discretion, order costs to be paid by any party to the proceedings or out of the assets of the estate as justice may require.
(1) By submitting an application for informal probate or appointment or a petition for formal probate, adjudication of intestacy, or appointment the applicant or petitioner subjects himself to the jurisdiction of the court in all matters arising under this title.
(2) Notice of any proceeding sought to be maintained against the applicant or petitioner pursuant to his submission to jurisdiction shall be delivered to him or mailed to him by ordinary first-class mail at his address as it is known to the moving party or as listed in the application or petition or as thereafter reported to the court.
(1) A will, trust, or power of attorney may include a provision, enforceable by a court, that requires the resolution of disputes between or among beneficiaries and fiduciaries of the will, trust, or power of attorney, or any combination of those persons or entities, outside of a court of record.
(2) The resolution of disputes outside the court may include any procedure, writing, or agreement, not contrary to or prohibited by law, found or referred to in a will, trust, or power of attorney, the purpose of which is to resolve disputes between or among the beneficiaries and fiduciaries of a will, trust, or power of attorney, or any combination of those persons or entities, outside of a court of record.
(3) Unless terms in a dispute resolution procedure, writing, or agreement require binding arbitration, nothing in the writing or agreement shall prevent beneficiaries or fiduciaries, upon satisfaction of the required terms of the dispute resolution procedure, writing, or agreement, from seeking resolution of unresolved disputes in a court of record.
(1) If notice of a hearing on any petition is required and except for specific notice requirements as otherwise provided, the petitioner shall cause notice of the time and place of hearing of any petition to be given to any interested person or the person's attorney if the person has appeared by attorney or requested that notice be sent to the person's attorney. Notice shall be given by the clerk posting a copy of the notice for the 10 consecutive days immediately preceding the time set for the hearing in at least three public places in the county, one of which must be at the courthouse of the county and:
(a)
(i) by the clerk mailing a copy thereof at least 10 days before the time set for the hearing by certified, registered, or ordinary first class mail addressed to the person being notified at the post-office address given in the demand for notice, if any, or at the person's office or place of residence, if known; or
(ii) by delivering a copy thereof to the person being notified personally at least 10 days before the time set for the hearing; and
(b) if the address, or identity of any person is not known and cannot be ascertained with reasonable diligence, by publishing for the county where the hearing is to be held, as a class A notice under Section 63G-30-102, for at least 10 days before the day of the hearing.
(2) The court for good cause shown may provide for a different method or time of giving notice for any hearing.
(3) Proof of the giving of notice shall be made on or before the hearing and filed in the proceeding.
A person, including a guardian ad litem, conservator, or other fiduciary, may waive notice by a writing signed by him or his attorney and filed in the proceeding. If there is no conflict of interest and no conservator or guardian has been appointed, a parent may waive notice for his minor child.
In formal proceedings involving inter vivos or testamentary trusts, including proceedings to modify or terminate a trust, estates of decedents, minors, protected persons, or incapacitated persons, and in judicially supervised settlements, the following apply:
(1) Interests to be affected shall be described in pleadings which give reasonable information to owners by name or class, by reference to the instrument creating the interests, or in any other appropriate manner.
(2) Notice is required as follows:
(a) Notice as prescribed by Section 75-1-401 shall be given to every interested person. Notice may be given both to a person and to another who may bind him.
(b) Whenever notice to a person is required or permitted under this chapter, notice to another person who may represent and bind the person represented under this section constitutes notice to the person represented.
(3) Persons are bound by orders binding others in the following cases:
(a) To the extent there is no conflict of interest between the holder of a general testamentary power of appointment and the persons represented with respect to a particular question or dispute, the holder may represent and bind persons whose interests, as permissible appointees, takers in default, or otherwise, are subject to the power.
(b) To the extent there is no conflict of interest between the representative and the person represented with respect to a particular question or dispute:
(i) a conservator may represent and bind the person whose estate he controls;
(ii) a guardian may represent and bind the ward if no conservator of the ward's estate has been appointed;
(iii) an agent having authority to do so may represent and bind the principal;
(iv) a trustee may represent and bind the beneficiaries of the trust;
(v) a personal representative of a decedent's estate may represent and bind persons interested in the estate; and
(vi) if no conservator or guardian has been appointed, a parent may represent and bind the parent's minor or unborn child.
(c) Unless otherwise represented, a minor, incapacitated or unborn person, or a person whose identity or location is unknown and not reasonably ascertainable, may be represented and bound by another person having a substantially identical interest with respect to the particular question or dispute, but only to the extent there is no conflict of interest between the representative and the person represented.
(4) Even if there is representation under this section, if the court determines that representation of the interest might otherwise be inadequate, the court may appoint a guardian ad litem to represent the interest of, and approve an agreement on behalf of, a minor, incapacitated or unborn person, or a person whose identity or location is unknown.
(5) If not precluded by conflict of interest, a guardian ad litem may be appointed to represent several persons or interests. In approving an agreement, a guardian ad litem may consider the general family benefit accruing to the living members of the family of the person represented.
(6) Whenever consent may be given by a person pursuant to this chapter, the consent of a person who may represent and bind the person represented under this section is the consent of, and is binding on, the person represented unless the person represented objects to the representation before the consent would otherwise become effective.
(1) Newspapers shall publish all notices of proceedings under this title under the heading "Probate, Guardianship, Conservator and Trust Notices. Consult clerk of the court or the respective signers for further information."
(2) The notices under Subsection (1) shall be published as often during the prescribed period as the paper is regularly issued, unless otherwise provided by law or directed by the court, and as far as possible in one column in the alphabetical order of the surnames of decedents, wards, incapacitated persons, and creators of trusts.
(1) Any part of a decedent's estate not effectively disposed of by will passes by intestate succession to the decedent's heirs as provided in this title, except as modified by the decedent's will.
(2) A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent's intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his intestate share.
(1) The intestate share of a decedent's surviving spouse is:
(a) the entire intestate estate if:
(i) no descendant of the decedent survives the decedent; or
(ii) all of the decedent's surviving descendants are also descendants of the surviving spouse;
(b) the first $75,000, plus 1/2 of any balance of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse.
(2) For purposes of Subsection (1)(b), if the intestate estate passes to both the decedent's surviving spouse and to other heirs, then any nonprobate transfer, as defined in Section 75-2-206, received by the surviving spouse is added to the probate estate in calculating the intestate heirs' shares and is conclusively treated as an advancement under Section 75-2-109 in determining the spouse's share.
(1) Any part of the intestate estate not passing to a decedent's surviving spouse under Section 75-2-102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals who survive the decedent:
(a) to the decedent's descendants per capita at each generation as defined in Subsection 75-2-106(2);
(b) if there is no surviving descendant, to the decedent's parents equally if both survive, or to the surviving parent if only one survives;
(c) if there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them per capita at each generation as defined in Subsection 75-2-106(3);
(d) if there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived on both the paternal and maternal sides by one or more grandparents or descendants of grandparents:
(i) half to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent if only one survives, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendants taking per capita at each generation as defined in Subsection 75-2-106(3); and
(ii) half to the decedent's maternal grandparents equally if both survive, to the surviving maternal grandparent if only one survives, or to the descendants of the decedent's maternal grandparents or either of them if both are deceased, the descendants taking per capita at each generation as defined in Subsection 75-2-106(3);
(e) if there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents on the paternal but not the maternal side, or on the maternal but not the paternal side, to the decedent's relatives on the side with one or more surviving members in the same manner as the half described in Subsection (1)(d);
(f) if there is no taker under Subsection (1)(a), (b), (c), (d), or (e), but the decedent has:
(i) one deceased spouse who has one or more descendants who survive the decedent, the estate or part of the estate passes to that spouse's descendants who survive the decedent, the descendants taking per capita at each generation as defined in Subsection 75-2-106(4); or
(ii) more than one deceased spouse who has one or more descendants who survive the decedent, an equal share of the estate or part of the estate passes to each set of descendants, the descendants taking per capita at each generation as defined in Subsection 75-2-106(4).
(2) For purposes of Subsections (1)(a), (b), (c), (d), (e), and (f) any nonprobate transfer, as defined in Section 75-2-205, received by an heir is added to the probate estate in calculating the intestate heirs' shares and is conclusively treated as an advancement under Section 75-2-109 to the heir in determining the heir's share.
(1) For purposes of intestate succession, homestead allowance, and exempt property, and except as otherwise provided in Subsection (2), the following rules apply:
(a) An individual born before a decedent's death who fails to survive the decedent by 120 hours is considered to have predeceased the decedent. If it is not established by clear and convincing evidence that an individual born before the decedent's death survived the decedent by 120 hours, it is considered that the individual failed to survive for the required period.
(b) An individual in gestation at a decedent's death is considered to be living at the decedent's death if the individual lives 120 hours after birth. If it is not established by clear and convincing evidence that an individual in gestation at the decedent's death lived 120 hours after birth, it is considered that the individual failed to survive for the required period.
(2) This section does not apply if its application would cause the estate to pass to the state under Section 75-2-105.
(1) As used in this section:
(a) "Mineral" means the same as that term is defined in Section 67-4a-102.
(b) "Mineral proceeds" means the same as that term is defined in Section 67-4a-102.
(c) "Operator" means the same as that term is defined in Section 40-6-2, 40-8-4, or 40-10-3, and includes any other person holding mineral proceeds of an owner.
(d) "Owner" means the same as that term is defined in Section 38-10-101, 40-6-2, or 40-8-4.
(e) "Payor" means the same as that term is defined in Section 40-6-2, and includes a person who undertakes or has a legal obligation to distribute any mineral proceeds.
(2) If there is no taker under this chapter, the intestate estate passes upon the decedent's death to the state for the benefit of the permanent state school fund.
(3) When minerals or mineral proceeds pass to the state pursuant to Subsection (2), the Utah School and Institutional Trust Lands Administration shall administer the interests in the minerals or mineral proceeds for the support of the common schools pursuant to Sections 53C-1-102 and 53C-1-302, but may exercise its discretion to abandon or decline to administer property of no value or of insufficient value to justify its collection or continued administration.
(4)
(a) If a probate or other proceeding has not adjudicated the state's rights under Subsection (2), the state, and the Utah School and Institutional Trust Lands Administration with respect to any minerals or mineral proceeds referenced in Subsection (3), may bring an action in a court with jurisdiction under Title 78A, Judiciary and Judicial Administration, to quiet title the minerals, mineral proceeds, or property.
(b) Notwithstanding Title 78B, Chapter 3a, Venue for Civil Actions, the state or the Utah School and Institutional Trust Lands Administration, shall bring an action described in Subsection (4)(a) in the county in which the property related to the minerals or mineral process is located if the action is brought in the district court.
(5) In an action brought under Subsection (4), the court shall quiet title to the minerals, mineral proceeds, or property in the state if:
(a) no interested person appears in the action and demonstrates entitlement to the minerals, mineral proceeds, or property after notice has been given pursuant to Section 78B-6-1303 and in the manner described in Section 75-1-401; and
(b) the requirements of Section 78B-6-1315 are met.
(6)
(a) If an operator, owner, or payor determines that minerals or mineral proceeds form part of a decedent's intestate estate, and has not located an heir of the decedent, the operator, owner, or payor shall submit to the Utah School and Institutional Trust Lands Administration the information in the operator's, owner's, or payor's possession concerning the identity of the decedent, the results of a good faith search for heirs specified in Section 75-2-103, the property interest from which the minerals or mineral proceeds derive, and any potential heir.
(b) The operator, owner, or payor shall submit the information described in Subsection (6)(a) within 180 days of acquiring the information.
(1) As used in this section:
(a) "Deceased descendant," "deceased parent," or "deceased grandparent" means a descendant, parent, or grandparent who either predeceased the decedent or is considered to have predeceased the decedent under Section 75-2-104.
(b) "Surviving descendant" means a descendant who neither predeceased the decedent nor is considered to have predeceased the decedent under Section 75-2-104.
(2)
(a) If, under Subsection 75-2-103(1)(a), a decedent's intestate estate or a part thereof passes "per capita at each generation" to the decedent's descendants, the estate or part thereof is divided into as many equal shares as there are:
(i) surviving descendants in the generation nearest to the decedent which contains one or more surviving descendants; and
(ii) deceased descendants in the same generation who left surviving descendants, if any.
(b) Each surviving descendant in the nearest generation is allocated one share.
(c) The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.
(3)
(a) If, under Subsection 75-2-103(1)(c) or (d), a decedent's intestate estate or a part thereof passes "per capita at each generation" to the descendants of the decedent's deceased parents or either of them or to the descendants of the decedent's deceased paternal or maternal grandparents or either of them, the estate or part thereof is divided into as many equal shares as there are:
(i) surviving descendants in the generation nearest the deceased parents or either of them, or the deceased grandparents or either of them, that contains one or more surviving descendants; and
(ii) deceased descendants in the same generation who left surviving descendants, if any.
(b) Each surviving descendant in the nearest generation is allocated one share.
(c) The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.
(4)
(a) If, under Subsection 75-2-103(1)(e), a decedent's intestate estate or a part of the estate passes "per capita at each generation" to the descendants of the decedent's deceased spouse, the estate or part of the estate is divided into as many equal shares as there are:
(i) surviving descendants in the generation nearest the deceased spouse that contains one or more surviving descendants; and
(ii) deceased descendants in the same generation who left surviving descendants, if any.
(b) Each surviving descendant in the nearest generation is allocated one share.
(c) The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the decedent.
(5) Any reference to this section found in a governing instrument for the definitions of "per capita," "per stirpes," "by representation," "share and share alike," "to the survivor of them," or "by right of representation" shall be considered a reference to Section 75-2-709.
Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
(1) If an individual dies intestate as to all or a portion of his estate, property the decedent gave during the decedent's lifetime to an individual who, at the decedent's death, is an heir is treated as an advancement against the heir's intestate share only if:
(a) the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement; or
(b) the decedent's contemporaneous writing or the heir's written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent's intestate estate.
(2) For purposes of Subsection (1), property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of the decedent's death, whichever first occurs.
(3)
(a) If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the division and distribution of the decedent's intestate estate, unless the decedent's contemporaneous writing provides otherwise.
(b) If the amount of the advancement exceeds the share of the heir receiving the same, the heir is not required to refund any part of the advancement.
A debt owed to a decedent is not charged against the intestate share of any individual except the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in computing the intestate share of the debtor's descendants.
No individual is disqualified to take as an heir because the individual or an individual through whom he claims is or has been an alien.
The estates of dower and curtesy are abolished.
An individual who is related to the decedent through two lines of relationship is entitled to only a single share based on the relationship that would entitle the individual to the larger share.
(1) As used in this section, "pre-existing parent" means the same as that term is defined in Section 81-13-101.
(2)
(a) Except as provided in Subsections (3) and (4), for purposes of intestate succession by, through, or from a person, an individual is the child of the individual's parents, regardless of the individual's parent's marital status.
(b) The parent and child relationship may be established as provided in Title 81, Chapter 5, Uniform Parentage Act.
(3) An adopted individual is the child of the adopting parent or parents and not of the adopted individual's pre-existing parent, except that the adoption of a child by the spouse of a child's pre-existing parent has no effect on the relationship between the child and that pre-existing parent.
(4) Inheritance from or through a child by the child's parent or the child's kindred is precluded unless that parent has openly treated the child as the parent's and has not refused to support the child.
As used in this part:
(1) "Decedent's nonprobate transfers to others," as used in sections other than Section 75-2-205, means the amounts that are included in the augmented estate under Section 75-2-205.
(2) "Fractional interest in property held in joint tenancy with the right of survivorship," whether the fractional interest is unilaterally severable or not, means the fraction, the numerator of which is one and the denominator of which, if the decedent was a joint tenant, is one plus the number of joint tenants who survive the decedent and which, if the decedent was not a joint tenant, is the number of joint tenants.
(3) "Marriage," as it relates to a transfer by the decedent during marriage, means any marriage of the decedent to the decedent's surviving spouse.
(4) "Nonadverse party" means a person who does not have a substantial beneficial interest in the trust or other property arrangement that would be adversely affected by the exercise or nonexercise of the power that the person possesses respecting the trust or other property arrangement. A person having a general power of appointment over property is considered to have a beneficial interest in the property.
(5) "Power" or "power of appointment" includes a power to designate the beneficiary of a beneficiary designation.
(6) "Presently exercisable general power of appointment" means a power of appointment under which, at the time in question, the decedent, whether or not the decedent then had the capacity to exercise the power, held a power to create a present or future interest in himself, his creditors, his estate, or creditors of his estate, and includes a power to revoke or invade the principal of a trust or other property arrangement.
(7) "Probate estate" means property that would pass by intestate succession if the decedent died without a valid will.
(8) "Property" includes values subject to a beneficiary designation.
(9) "Right to income" includes a right to payments under a commercial or private annuity, an annuity trust, a unitrust, or a similar arrangement.
(10) "Transfer," as it relates to a transfer by or of the decedent, includes:
(a) an exercise or release of a presently exercisable general power of appointment held by the decedent;
(b) a lapse at death of a presently exercisable general power of appointment held by the decedent; and
(c) an exercise, release, or lapse of a general power of appointment that the decedent created in himself and of a power described in Subsection 75-2-205(2)(b) that the decedent conferred on a nonadverse party.
(1) The surviving spouse of a decedent who dies domiciled in Utah has a right of election, under the limitations and conditions stated in this part, to take an elective-share amount equal to the value of 1/3 of the augmented estate.
(2) If the sum of the amounts described in Subsection 75-2-209(1), and that part of the elective-share amount payable from the decedent's probate estate and nonprobate transfers to others under Subsections 75-2-209(2) and (3) is less than $75,000, the surviving spouse is entitled to a supplemental elective-share amount equal to $75,000, minus the sum of the amounts described in those sections. The supplemental elective-share amount is payable from the decedent's probate estate and from recipients of the decedent's nonprobate transfers to others in the order of priority set forth in Subsections 75-2-209(2) and (3).
(3) If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse's homestead allowance, exempt property, and family allowance, if any, are charged against, and are not in addition to, the elective-share and supplemental elective-share amounts.
(4) The right, if any, of the surviving spouse of a decedent who dies domiciled outside Utah to take an elective share in property in Utah is governed by the law of the decedent's domicile at death.
Subject to Section 75-2-208 which provides for exclusions, valuation, and overlapping application, the value of the augmented estate, to the extent provided in Sections 75-2-204, 75-2-205, 75-2-206, and 75-2-207, consists of the sum of the values of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitute the decedent's net probate estate, the decedent's nonprobate transfers to others, the decedent's nonprobate transfers to the surviving spouse, and the surviving spouse's property and nonprobate transfers to others.
Unless excluded under Section 75-2-208, the value of the augmented estate includes the value of the decedent's probate estate, reduced by funeral and administration expenses, homestead allowance, family allowances, exempt property, and enforceable claims.
Unless excluded under Section 75-2-208, the value of the augmented estate includes the value of the decedent's nonprobate transfers to others, not included under Section 75-2-204, of any of the types described in this section, in the amount provided respectively for each type of transfer:
(1) Property owned or owned in substance by the decedent immediately before death that passed outside probate at the decedent's death. Property included under this category consists of the property described in this Subsection (1).
(a)
(i) Property over which the decedent alone, immediately before death, held a presently exercisable general power of appointment.
(ii) The amount included is the value of the property subject to the power, to the extent the property passed at the decedent's death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent's estate or surviving spouse.
(b)
(i) The decedent's fractional interest in property held by the decedent in joint tenancy with the right of survivorship.
(ii) The amount included is the value of the decedent's fractional interest, to the extent the fractional interest passed by right of survivorship at the decedent's death to a surviving joint tenant other than the decedent's surviving spouse.
(c)
(i) The decedent's ownership interest in property or accounts held in POD, TOD, or co-ownership registration with the right of survivorship.
(ii) The amount included is the value of the decedent's ownership interest, to the extent the decedent's ownership interest passed at the decedent's death to or for the benefit of any person other than the decedent's estate or surviving spouse.
(d)
(i) Proceeds of insurance, including accidental death benefits, on the life of the decedent, if the decedent owned the insurance policy immediately before death or if and to the extent the decedent alone and immediately before death held a presently exercisable general power of appointment over the policy or its proceeds.
(ii) The amount included:
(A) is the value of the proceeds, to the extent they were payable at the decedent's death to or for the benefit of any person other than the decedent's estate or surviving spouse; and
(B) may not exceed the greater of the cash surrender value of the policy immediately prior to the death of the decedent or the amount of premiums paid on the policy during the decedent's life.
(2) Property transferred in any of the forms described in this Subsection (2) by the decedent during marriage:
(a)
(i) Any irrevocable transfer in which the decedent retained the right to the possession or enjoyment of, or to the income from, the property if and to the extent the decedent's right terminated at or continued beyond the decedent's death.
(ii) An irrevocable transfer in trust which includes a restriction on transfer of the decedent's interest as settlor and beneficiary as described in Section 75B-1-303.
(iii) The amount included is the value of the fraction of the property to which the right or restriction related, to the extent the fraction of the property passed outside probate to or for the benefit of any person other than the decedent's estate or surviving spouse.
(b)
(i) Any transfer in which the decedent created a power over income or property, exercisable by the decedent alone or in conjunction with any other person, or exercisable by a nonadverse party, to or for the benefit of the decedent, creditors of the decedent, the decedent's estate, or creditors of the decedent's estate.
(ii) The amount included with respect to a power over property is the value of the property subject to the power, and the amount included with respect to a power over income is the value of the property that produces or produced the income, to the extent the power in either case was exercisable at the decedent's death to or for the benefit of any person other than the decedent's surviving spouse or to the extent the property passed at the decedent's death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent's estate or surviving spouse.
(iii) If the power is a power over both income and property and Subsection (2)(b)(ii) produces different amounts, the amount included is the greater amount.
(3) Property that passed during marriage and during the two-year period next preceding the decedent's death as a result of a transfer by the decedent if the transfer was of any of the types described in this Subsection (3).
(a)
(i) Any property that passed as a result of the termination of a right or interest in, or power over, property that would have been included in the augmented estate under Subsection (1)(a), (b), or (c), or under Subsection (2), if the right, interest, or power had not terminated until the decedent's death.
(ii) The amount included is the value of the property that would have been included under Subsection (1)(a), (b), (c), or Subsection (2) if the property were valued at the time the right, interest, or power terminated, and is included only to the extent the property passed upon termination to or for the benefit of any person other than the decedent or the decedent's estate, spouse, or surviving spouse.
(iii)
(A) As used in this Subsection (3)(a), "termination," with respect to a right or interest in property, occurs when the right or interest terminated by the terms of the governing instrument or the decedent transferred or relinquished the right or interest, and, with respect to a power over property, occurs when the power terminated by exercise, release, lapse, default, or otherwise.
(B) With respect to a power described in Subsection (1)(a), "termination" occurs when the power terminated by exercise or release, but not otherwise.
(b)
(i) Any transfer of or relating to an insurance policy on the life of the decedent if the proceeds would have been included in the augmented estate under Subsection (1)(d) had the transfer not occurred.
(ii) The amount included:
(A) is the value of the insurance proceeds to the extent the proceeds were payable at the decedent's death to or for the benefit of any person other than the decedent's estate or surviving spouse; and
(B) may not exceed the greater of the cash surrender value of the policy immediately prior to the death of the decedent or the amount of premiums paid on the policy during the decedent's life.
(c)
(i) Any transfer of property, to the extent not otherwise included in the augmented estate, made to or for the benefit of a person other than the decedent's surviving spouse.
(ii) The amount included is the value of the transferred property to the extent the aggregate transfers to any one donee in either of the two years exceeded $10,000.
Excluding property passing to the surviving spouse under the federal Social Security system, any death benefits paid to the surviving spouse under any state workers' compensation law, and property excluded under Section 75-2-208, the value of the augmented estate includes the value of the decedent's nonprobate transfers to the decedent's surviving spouse, which consist of all property that passed outside probate at the decedent's death from the decedent to the surviving spouse by reason of the decedent's death, including:
(1) the decedent's fractional interest in property held as a joint tenant with the right of survivorship, to the extent that the decedent's fractional interest passed to the surviving spouse as surviving joint tenant;
(2) the decedent's ownership interest in property or accounts held in co-ownership registration with the right of survivorship, to the extent the decedent's ownership interest passed to the surviving spouse as surviving co-owner; and
(3) all other property that would have been included in the augmented estate under Subsection 75-2-205(1) or (2) had it passed to or for the benefit of a person other than the decedent's spouse, surviving spouse, the decedent, or the decedent's creditors, estate, or estate creditors.
(1) Except to the extent included in the augmented estate under Section 75-2-204 or 75-2-206 or excluded under Section 75-2-208, the value of the augmented estate includes the value of:
(a) property that was owned by the decedent's surviving spouse at the decedent's death, including:
(i) the surviving spouse's fractional interest in property held in joint tenancy with the right of survivorship;
(ii) the surviving spouse's ownership interest in property or accounts held in co-ownership registration with the right of survivorship; and
(iii) property that passed to the surviving spouse by reason of the decedent's death, but not including the spouse's right to homestead allowance, family allowance, exempt property, or payments under the federal Social Security system; and
(b) property that would have been included in the surviving spouse's nonprobate transfers to others, other than the spouse's fractional and ownership interests included under Subsection (1)(a)(i) or (ii), had the spouse been the decedent.
(2) Property included under this section is valued at the decedent's death, taking the fact that the decedent predeceased the spouse into account, but, for purposes of Subsections (1)(a)(i) and (ii), the values of the spouse's fractional and ownership interests are determined immediately before the decedent's death if the decedent was then a joint tenant or a co-owner of the property or accounts. For purposes of Subsection (1)(b), proceeds of insurance that would have been included in the spouse's nonprobate transfers to others under Subsection 75-2-205(1)(d) are not valued as if the spouse were deceased.
(3) The value of property included under this section is reduced by enforceable claims against the surviving spouse.
(1) The value of any separate property of the decedent or the decedent's surviving spouse is excluded from the augmented estate even if it otherwise would be included in the augmented estate under Sections 75-2-204, 75-2-205, 75-2-206, and 75-2-207. Property is separate property if it was:
(a) owned at the date of the most recent marriage of the decedent and the decedent's surviving spouse;
(b) acquired by gift or disposition at death from a person other than the decedent or the decedent's surviving spouse;
(c) subject to a presently exercisable power of appointment not created by the decedent or the decedent's spouse that is exempt under Section 75-10-502;
(d) acquired in exchange for or with the proceeds of other separate property;
(e) designated as separate property by written waiver under Section 75-2-213; or
(f) acquired as a recovery for personal injury but only to the extent attributable to expenses paid or otherwise satisfied from separate property.
(2) Income attributable to investment, rental, licensing or other use of separate property during the most recent marriage of the decedent and the decedent's surviving spouse is separate property.
(3) Appreciation in the value of separate property during the most recent marriage of the decedent and the decedent's surviving spouse is separate property.
(4) Except as provided in this Subsection (4), any increase in the value of separate property due to improvements to or the reduction in debt owed against separate property during the most recent marriage of the decedent and the decedent's surviving spouse is separate property. An amount equal to any payment for improvements to or the reduction in debt owed against separate property of the decedent made during the most recent marriage of the decedent and the decedent's surviving spouse from the joint or commingled funds of the decedent and the decedent's surviving spouse, or from the separate property of the surviving spouse, shall not be separate property to the extent of the amount actually paid for the improvements or the amount actually paid for the reduction in debt, including principal, interest, and other payments under the note, owed against separate property. The amount that is determined not to be separate property may not exceed the value of the separate property.
(5) All property of the decedent or the decedent's surviving spouse, whether or not commingled, is rebuttably presumed not to be separate property.
(6) The value of any property is excluded from the decedent's nonprobate transfers to others:
(a) to the extent the decedent received adequate and full consideration in money or money's worth for a transfer of the property; or
(b) if the property was transferred with the written joinder of, or if the transfer was consented to in writing by, the surviving spouse.
(7) The value of property:
(a) included in the augmented estate under Section 75-2-205, 75-2-206, or 75-2-207 is reduced in each category by enforceable claims against the included property; and
(b) includes the commuted value of any present or future interest and the commuted value of amounts payable under any trust, life insurance settlement option, annuity contract, public or private pension, disability compensation, death benefit or retirement plan, or any similar arrangement, exclusive of the federal Social Security system.
(8) In case of overlapping application to the same property of the section or subsections of Section 75-2-205, 75-2-206, or 75-2-207, the property is included in the augmented estate under the provision yielding the greatest value, and under only one overlapping provision if they all yield the same value.
(1) In a proceeding for an elective share, the following are applied first to satisfy the elective-share amount and to reduce or eliminate any contributions due from the decedent's probate estate and recipients of the decedent's nonprobate transfers to others:
(a) amounts included in the augmented estate under Section 75-2-204 that pass or have passed to the surviving spouse by testate or intestate succession and amounts included in the augmented estate under Section 75-2-206;
(b) amounts included in the augmented estate under Section 75-2-207;
(c) the value at the decedent's death of the decedent's separate property, as defined in Section 75-2-208, that passes or has passed from the decedent to the decedent's surviving spouse by reason of the decedent's death, whether by testate or intestate succession or by nonprobate transfer at the decedent's death; and
(d) the surviving spouse's homestead allowance, exempt property, and family allowance, if any.
(2) If, after the application of Subsection (1), the elective-share amount is not fully satisfied or the surviving spouse is entitled to a supplemental elective-share amount, amounts included in the decedent's probate estate and in the decedent's nonprobate transfers to others, other than amounts included under Subsection 75-2-205(3)(a) or (c), are applied first to satisfy the unsatisfied balance of the elective-share amount or the supplemental elective-share amount. The decedent's probate estate and that portion of the decedent's nonprobate transfers to others are so applied that liability for the unsatisfied balance of the elective-share amount or for the supplemental elective-share amount is equitably apportioned among the recipients of the decedent's probate estate and of that portion of the decedent's nonprobate transfers to others in proportion to the value of their interests therein.
(3) If, after the application of Subsections (1) and (2), the elective-share or supplemental elective-share amount is not fully satisfied, the remaining portion of the decedent's nonprobate transfers to others is so applied that liability for the unsatisfied balance of the elective-share or supplemental elective-share amount is equitably apportioned among the recipients of the remaining portion of the decedent's nonprobate transfers to others in proportion to the value of their interests therein.
(1) Only original recipients of the decedent's nonprobate transfers to others, and the donees of the recipients of the decedent's nonprobate transfers to others, to the extent the donees have the property or its proceeds, are liable to make a proportional contribution toward satisfaction of the surviving spouse's elective-share or supplemental elective-share amount. A person liable to make contribution may choose to give up the proportional part of the decedent's nonprobate transfers to him or to pay the value of the amount for which he is liable.
(2) If any section or subsection of this part is preempted by federal law with respect to a payment, an item of property, or any other benefit included in the decedent's nonprobate transfers to others, a person who, not for value, receives the payment, item of property, or any other benefit is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of that item of property or benefit, as provided in Section 75-2-209, to the person who would have been entitled to it were that section or subsection not preempted.
(1) Except as provided in Subsection (2), the election shall be made by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within nine months after the date of the decedent's death, or within six months after the probate of the decedent's will, whichever limitation later expires. The surviving spouse shall give notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share. Except as provided in Subsection (2), the decedent's nonprobate transfers to others are not included within the augmented estate for the purpose of computing the elective-share, if the petition is filed more than nine months after the decedent's death.
(2) Within nine months after the decedent's death, the surviving spouse may petition the court for an extension of time for making an election. If, within nine months after the decedent's death, the spouse gives notice of the petition to all persons interested in the decedent's nonprobate transfers to others, the court for cause shown by the surviving spouse may extend the time for election. If the court grants the spouse's petition for an extension, the decedent's nonprobate transfers to others are not excluded from the augmented estate for the purpose of computing the elective-share and supplemental elective-share amounts, if the spouse makes an election by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within the time allowed by the extension.
(3) The surviving spouse may withdraw his demand for an elective share at any time before entry of a final determination by the court.
(4) After notice and hearing, the court shall determine the elective-share and supplemental elective-share amounts, and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate under Sections 75-2-209 and 75-2-210. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than he would have been under Sections 75-2-209 and 75-2-210 had relief been secured against all persons subject to contribution.
(5) An order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of Utah or other jurisdictions.
(1) The right of election may be exercised only by a surviving spouse who is living when the petition for the elective share is filed in the court under Subsection 75-2-211(1). If the election is not exercised by the surviving spouse personally, it may be exercised on the surviving spouse's behalf by his conservator, guardian, or agent under the authority of a power of attorney.
(2) If the election is exercised on behalf of a surviving spouse who is an incapacitated person, the court shall set aside that portion of the elective-share and supplemental elective-share amounts due from the decedent's probate estate and recipients of the decedent's nonprobate transfers to others under Subsections 75-2-209(2) and (3) and shall appoint a trustee to administer that property for the support of the surviving spouse. For the purposes of this subsection, an election on behalf of a surviving spouse by an agent under a durable power of attorney is presumed to be on behalf of a surviving spouse who is an incapacitated person. The trustee shall administer the trust in accordance with the following terms and such additional terms as the court determines appropriate:
(a) Expenditures of income and principal may be made in the manner, when, and to the extent that the trustee determines suitable and proper for the surviving spouse's support, without court order but with regard to other support, income, and property of the surviving spouse exclusive of benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the surviving spouse shall qualify on the basis of need.
(b) During the surviving spouse's incapacity, neither the surviving spouse nor anyone acting on behalf of the surviving spouse has a power to terminate the trust; but if the surviving spouse regains capacity, the surviving spouse then acquires the power to terminate the trust and acquire full ownership of the trust property free of trust, by delivering to the trustee a writing signed by the surviving spouse declaring the termination.
(c) Upon the surviving spouse's death, the trustee shall transfer the unexpended trust property in the following order:
(i) under the residuary clause, if any, of the will of the predeceased spouse against whom the elective share was taken, as if that predeceased spouse died immediately after the surviving spouse; or
(ii) to the predeceased spouse's heirs under Section 75-2-711.
(1) The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property, and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse.
(2) A surviving spouse's waiver is not enforceable if the surviving spouse proves that:
(a) he did not execute the waiver voluntarily; or
(b) the waiver was unconscionable when it was executed and, before execution of the waiver, he:
(i) was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent;
(ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided; and
(iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.
(3) An issue of unconscionability of a waiver is for decision by the court as a matter of law.
(4) Unless it provides to the contrary, a waiver of "all rights," or equivalent language, in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights of elective share, homestead allowance, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass to him from the other by intestate succession or by virtue of any will executed before the waiver or property settlement.
(1) Although under Section 75-2-205 a payment, item of property, or other benefit is included in the decedent's nonprobate transfers to others, a payor or other third party is not liable for having made a payment or transferred an item of property or other benefit to a beneficiary designated in a governing instrument, or for having taken any other action in good faith reliance on the validity of a governing instrument, upon request and satisfactory proof of the decedent's death, before the payor or other third party received written notice from the surviving spouse or spouse's representative of an intention to file a petition for the elective share or that a petition for the elective share has been filed. A payor or other third party is liable for payments made or other actions taken after the payor or other third party received written notice of an intention to file a petition for the elective share or that a petition for the elective share has been filed.
(2) A written notice of intention to file a petition for the elective share or that a petition for the elective share has been filed shall be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of intention to file a petition for the elective share or that a petition for the elective share has been filed, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. The court shall hold the funds or item of property, and, upon its determination under Subsection 75-2-211(4), shall order disbursement in accordance with the determination. If no petition is filed in the court within the specified time under Subsection 75-2-211(1) or, if filed, the demand for an elective share is withdrawn under Subsection 75-2-211(3), the court shall order disbursement to the designated beneficiary. Payments or transfers to the court or deposits made into court discharge the payor or other third party from all claims for amounts so paid or the value of property so transferred or deposited.
(3) Upon petition to the probate court by the beneficiary designated in a governing instrument, the court may order that all or part of the property be paid to the beneficiary in an amount and subject to conditions consistent with this part.
(1) If a testator's surviving spouse married the testator after the testator executed his will, the surviving spouse is entitled to receive, as an intestate share, no less than the value of the share of the estate he would have received if the testator had died intestate as to that portion of the testator's estate, if any, that neither is devised to a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse nor is devised to a descendant of such a child or passes under Section 75-2-603 or 75-2-604 to such a child or to a descendant of such a child, unless:
(a) it appears from the will or other evidence that the will was made in contemplation of the testator's marriage to the surviving spouse;
(b) the will expresses the intention that it is to be effective notwithstanding any subsequent marriage; or
(c) the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator's statements or is reasonably inferred from the amount of the transfer or other evidence.
(2) In satisfying the share provided by this section, devises made by the will to the testator's surviving spouse, if any, are applied first, and other devises, other than a devise to a child of the testator who was born before the testator married the surviving spouse and who is not a child of the surviving spouse or a devise or substitute gift under Section 75-2-603 or 75-2-604 to a descendant of such a child, abate as provided in Section 75-3-902.
(1) Except as provided in Subsection (2), if a testator fails to provide in his will for any of his children born or adopted after the execution of the will, the omitted after-born or after-adopted child receives a share in the estate as follows:
(a) If the testator had no child living when he executed the will, an omitted after-born or after-adopted child receives a share in the estate equal in value to that which the child would have received had the testator died intestate, unless the will devised all or substantially all of the estate to the other parent of the omitted child and that other parent survives the testator and is entitled to take under the will.
(b) If the testator had one or more children living when he executed the will, and the will devised property or an interest in property to one or more of the then-living children, an omitted after-born or after-adopted child is entitled to share in the testator's estate as follows:
(i) The portion of the testator's estate in which the omitted after-born or after-adopted child is entitled to share is limited to devises made to the testator's then-living children under the will.
(ii) The omitted after-born or after-adopted child is entitled to receive the share of the testator's estate, as limited in Subsection (1)(b)(i), that the child would have received had the testator included all omitted after-born and after-adopted children with the children to whom devises were made under the will and had given an equal share of the estate to each child.
(iii) To the extent feasible, the interest granted an omitted after-born or after-adopted child under this section shall be of the same character, whether equitable or legal, present or future, as that devised to the testator's then-living children under the will.
(iv) In satisfying a share provided by this section, devises to the testator's children who were living when the will was executed abate ratably. In abating the devises of the then-living children, the court shall preserve to the maximum extent possible the character of the testamentary plan adopted by the testator.
(2) Neither Subsection (1)(a) nor Subsection (1)(b) applies if:
(a) it appears from the will that the omission was intentional; or
(b) the testator provided for the omitted after-born or after-adopted child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator's statements or is reasonably inferred from the amount of the transfer or other evidence.
(3) If at the time of execution of the will the testator fails to provide in his will for a living child solely because he believes the child to be dead, the child is entitled to share in the estate as if the child were an omitted after-born or after-adopted child.
(4) In satisfying a share provided by Subsection (1)(a), devises made by the will abate under Section 75-3-902.
This part applies to the estate of a decedent who dies domiciled in Utah. Rights to homestead allowance, exempt property, and family allowance for a decedent who dies not domiciled in Utah are governed by the law of the decedent's domicile at death.
A decedent's surviving spouse is entitled to a homestead allowance of $22,500. If there is no surviving spouse, each minor child and each dependent child of the decedent is entitled to a homestead allowance amounting to $22,500 divided by the number of minor and dependent children of the decedent. The homestead allowance is exempt from and has priority over all claims of the estate. Unless otherwise provided by the will or governing instrument, the homestead allowance is chargeable against any benefit or share passing to the surviving spouse, minor, or dependent child, by the will of the decedent, by intestate succession, by way of elective share, and by way of nonprobate transfers as defined in Sections 75-2-205 and 75-2-206.
In addition to the homestead allowance, the decedent's surviving spouse is entitled from the estate to a value, not exceeding $15,000 in excess of any security interests therein, in household furniture, automobiles, furnishings, appliances, and personal effects. If there is no surviving spouse, the decedent's children are entitled jointly to the same value. If encumbered chattels are selected and the value in excess of security interests, plus that of other exempt property, is less than $15,000, or if there is not $15,000 worth of exempt property in the estate, the spouse or children are entitled to other assets of the estate, if any, to the extent necessary to make up the $15,000 value. Rights to exempt property and assets needed to make up a deficiency of exempt property have priority over all claims against the estate, but the right to any assets to make up a deficiency of exempt property abates as necessary to permit earlier payment of homestead allowance and family allowance. Unless otherwise provided by the will or governing instrument, the exempt property allowance is chargeable against any benefit or share passing to the surviving spouse, if any, or if there is no surviving spouse, to the decedent's children, by the will of the decedent, by intestate succession, by way of elective share, and by way of nonprobate transfers as defined in Sections 75-2-205 and 75-2-206.
(1) In addition to the right to homestead allowance and exempt property, the decedent's surviving spouse and minor children whom the decedent was obligated to support and children who were in fact being supported by the decedent are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance may not continue for longer than one year if the estate is inadequate to discharge allowed claims. The allowance may be paid as a lump sum or in periodic installments. It is payable to the surviving spouse, if living, for the use of the surviving spouse and minor and dependent children; otherwise to the children, or persons having their care and custody. If a minor child or dependent child is not living with the surviving spouse, the allowance may be made partially to the child or his guardian or other person having the child's care and custody, and partially to the spouse, as their needs may appear. The family allowance is exempt from and has priority over all claims except the homestead allowance.
(2) Unless otherwise provided by the will or governing instrument, the family allowance is chargeable against any benefit or share passing to the surviving spouse or minor children, by the will of the decedent, by intestate succession, by way of elective share, and by way of nonprobate transfers as defined in Sections 75-2-205 and 75-2-206. The death of any person entitled to family allowance terminates the right to allowances not yet paid.
(1) If the estate is otherwise sufficient, property specifically devised may not be used to satisfy rights to homestead allowance or exempt property. Subject to this restriction, the surviving spouse, guardians of minor children, or children who are adults may select property of the estate as homestead allowance and exempt property. The personal representative may make those selections if the surviving spouse, the children, or the guardians of the minor children are unable or fail to do so within a reasonable time or there is no guardian of a minor child. The personal representative may execute an instrument or deed of distribution to establish the ownership of property taken as homestead allowance or exempt property. The personal representative may determine the family allowance in a lump sum not exceeding $27,000 or periodic installments not exceeding $2,250 per month for one year, and may disburse funds of the estate in payment of the family allowance and any part of the homestead allowance payable in cash. The personal representative or an interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may petition the court for appropriate relief, which may include a family allowance other than that which the personal representative determined or could have determined.
(2) If the right to an elective share is exercised on behalf of a surviving spouse who is an incapacitated person, the personal representative may add any unexpended portions payable under the homestead allowance, exempt property, and family allowance to the trust established under Subsection 75-2-212(2).
(1) An individual may make a will if the individual:
(a) is 18 years old or older; and
(b) has testamentary capacity at the time that the will is executed.
(2) A testator has testamentary capacity under Subsection (1)(b) if the testator:
(a) can identify the testator's family members or other individuals in the testator's life;
(b) understands the testator's relationship to the individuals described in Subsection (2)(a);
(c) understands the nature and extent of the testator's property; and
(d) can form a plan in the testator's mind for the disposition of the testator's property.
(3) A testator is not required to have any knowledge or understanding of the laws of inheritance by intestate succession for the testator to have testamentary capacity under Subsection (2).
(4) There is a rebuttable presumption that testamentary capacity exists at the time that a will was executed even if the testator is subject to a guardianship or conservatorship or is otherwise unable to independently manage the testator's affairs.
(1) Except as provided in Subsection (2) and in Sections 75-2-503, 75-2-506, and 75-2-513, a will shall be:
(a) in writing;
(b) signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and
(c) signed by at least two individuals, each of whom signed within a reasonable time after he witnessed either the signing of the will as described in Subsection (1)(b) or the testator's acknowledgment of that signature or acknowledgment of the will.
(2) A will that does not comply with Subsection (1) is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting.
(3) Intent that the document constitutes the testator's will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator's handwriting.
Although a document or writing added upon a document was not executed in compliance with Section 75-2-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute:
(1) the decedent's will;
(2) a partial or complete revocation of the will;
(3) an addition to or an alteration of the will; or
(4) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will.
(1) A will may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which execution occurs, whether or not that officer is also a witness to the will, and evidenced by the officer's certificate, under official seal, in substantially the following form:
I, _______, the testator, sign my name to this instrument this ____ day of _______, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am 18 years of age or older, of sound mind, and under no constraint or undue influence.
Testator
We, _______, _______, the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as [his] [her] will and that [he] [she] signs it willingly (or willingly directs another to sign for [him] [her] ), and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator's signing, and that to the best of our knowledge the testator is 18 years of age or older, of sound mind, and under no constraint or undue influence.
Witness
Witness
State of _______
County of _______
Subscribed, sworn to and acknowledged before me by _______, the testator, and subscribed and sworn to before me by _______, and _______, witnesses, this ____ day of _______.
(Signed) _______________
(Official capacity of officer)
(2) An attested will may be made self-proved at any time after its execution by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which the acknowledgment occurs and evidenced by the officer's certificate, under the official seal, attached or annexed to the will in substantially the following form:
State of _______
County of _______
We, _______, _______, and _______, the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as the testator's will and that [he] [she] had signed willingly (or willingly directed another to sign for [him] [her] ), and that [he] [she] executed it as [his] [her] free and voluntary act for the purposes therein expressed, and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of [his] [her] knowledge the testator was at that time 18 years or age or older, of sound mind, and under no constraint or undue influence.
Testator
Witness
Witness
Subscribed, sworn to, and acknowledged before me by _______, the testator, and subscribed and sworn to before me by _______, and _______, witnesses, this ____ day of _______.
(Signed) ___________________
(Official capacity of officer)
(3) A signature affixed to a self-proving affidavit attached to a will is considered a signature affixed to the will, if necessary to prove the will's due execution.
(4) The notarization of will provisions of this section preempt conflicting provisions in other sections of the Utah Code whether the will was executed prior to or after July 1, 1998.
(1) An individual generally competent to be a witness may act as a witness to a will.
(2) The signing of a will by an interested witness does not invalidate the will or any provision of it.
A written will is valid if executed in compliance with Section 75-2-502 or 75-2-503 or if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode, or is a national.
(1) A will or any part thereof is revoked:
(a) by executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or
(b) by performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator's conscious presence and by the testator's direction. For purposes of this subsection, "revocatory act on the will" includes burning, tearing, canceling, obliterating, or destroying the will or any part of it. A burning, tearing, or canceling is a "revocatory act on the will," whether or not the burn, tear, or cancellation touched any of the words on the will.
(2) If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will.
(3) The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator's death.
(4) The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator's death to the extent they are not inconsistent.
Except as provided in Sections 75-2-803, 75-2-804, and 75-2-807, a change of circumstances does not revoke a will or any part of it.
(1) If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act under Subsection 75-2-507(1)(b), the previous will remains revoked unless it is revived. The previous will is revived if it is evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declarations that the testator intended the previous will to take effect as executed.
(2) If a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory act under Subsection 75-2-507(1)(b), a revoked part of the previous will is revived unless it is evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declarations that the testator did not intend the revoked part to take effect as executed.
(3) If a subsequent will that revoked a previous will in whole or in part is thereafter revoked by another later will, the previous will remains revoked in whole or in part, unless it or its revoked part is revived. The previous will or its revoked part is revived to the extent it appears from the terms of the later will that the testator intended the previous will to take effect.
A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.
(1) A will may validly devise property to the trustee of a trust established or to be established:
(a) during the testator's lifetime by the testator, by the testator and some other person, or by some other person, including a funded or unfunded life insurance trust, although the settlor has reserved any or all rights of ownership of the insurance contracts; or
(b) at the testator's death by the testator's devise to the trustee, if the trust is identified in the testator's will and its terms are set forth in a written instrument, other than a will, executed before, concurrently with, or after the execution of the testator's will or in another individual's will if that other individual has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust. The devise is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator's death.
(2) Unless the testator's will provides otherwise, property devised to a trust described in Subsection (1) is not held under a testamentary trust of the testator, but it becomes a part of the trust to which it is devised, and shall be administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator's death.
(3) Unless the testator's will provides otherwise, a revocation or termination of the trust before the testator's death causes the devise to lapse.
A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator's death. The execution or revocation of another individual's will is such an event.
Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing shall be signed by the testator and shall describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect on the dispositions made by the will.
(1) A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after July 1, 1998, may be established only by:
(a) provisions of a will stating material provisions of the contract;
(b) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or
(c) a writing signed by the decedent evidencing the contract.
(2) The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.
A provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.
In the absence of a finding of a contrary intention, the rules of construction in this part control the construction of a will.
A will is construed to pass all property the testator owns at death and all property acquired by the estate after the testator's death.
(1) As used in this section:
(a) "Alternative devise" means a devise that is expressly created by the will and, under the terms of the will, can take effect instead of another devise on the happening of one or more events, including survival of the testator or failure to survive the testator, whether an event is expressed in condition-precedent, condition-subsequent, or any other form. A residuary clause constitutes an alternative devise with respect to a nonresiduary devise only if the will specifically provides that, upon lapse or failure, the nonresiduary devise, or nonresiduary devises in general, pass under the residuary clause.
(b) "Class member" includes an individual who fails to survive the testator but who would have taken under a devise in the form of a class gift had he survived the testator.
(c) "Devise" includes an alternative devise, a devise in the form of a class gift, and an exercise of a power of appointment.
(d) "Devisee" includes:
(i) a class member if the devise is in the form of a class gift;
(ii) an individual or class member who was deceased at the time the testator executed his will as well as an individual or class member who was then living but who failed to survive the testator; and
(iii) an appointee under a power of appointment exercised by the testator's will.
(e) "Stepchild" means a child of the surviving, deceased, or former spouse of the testator or of the donor of a power of appointment, and not of the testator or donor.
(f) "Surviving devisee" or "surviving descendant" means a devisee or a descendant who neither predeceased the testator nor is considered to have predeceased the testator under Section 75-2-702.
(g) "Testator" includes the donee of a power of appointment if the power is exercised in the testator's will.
(2) If a devisee fails to survive the testator and is a grandparent, a descendant of a grandparent, or a stepchild of either the testator or the donor of a power of appointment exercised by the testator's will, the following apply:
(a) Except as provided in Subsection (2)(d), if the devise is not in the form of a class gift and the deceased devisee leaves surviving descendants, a substitute gift is created in the devisee's surviving descendants. They take per capita at each generation the property to which the devisee would have been entitled had the devisee survived the testator.
(b) Except as provided in Subsection (2)(d), if the devise is in the form of a class gift, other than a devise to "issue," "descendants," "heirs of the body," "heirs," "next-of-kin," "relatives," or "family," or a class described by language of similar import, a substitute gift is created in the surviving descendant's of any deceased devisee. The property to which the devisees would have been entitled had all of them survived the testator passes to the surviving devisees and the surviving descendants of the deceased devisees. Each surviving devisee takes the share to which he would have been entitled had the deceased devisees survived the testator. Each deceased devisee's surviving descendants who are substituted for the deceased devisee take per capita at each generation the share to which the deceased devisee would have been entitled had the deceased devisee survived the testator. For the purposes of this Subsection (2)(b), "deceased devisee" means a class member who failed to survive the testator and left one or more surviving descendants.
(c) For the purposes of Section 75-2-601, words of survivorship, such as in a devise to an individual "if he survives me," or in a devise to "my surviving children," are, in the absence of clear and convincing evidence, a sufficient indication of an intent contrary to the application of this section.
(d) If the will creates an alternative devise with respect to a devise for which a substitute gift is created by Subsection (2)(a) or (b), the substitute gift is superseded by the alternative devise only if an expressly designated devisee of the alternative devise is entitled to take under the will.
(e) Unless the language creating a power of appointment expressly excludes the substitution of the descendants of an appointee for the appointee, a surviving descendant of a deceased appointee of a power of appointment can be substituted for the appointee under this section, whether or not the descendant is an object of the power.
(1) Except as provided in Section 75-2-603, a devise, other than a residuary devise, that fails for any reason becomes a part of the residue.
(2) Except as provided in Section 75-2-603, if the residue is devised to two or more persons, the share of a residuary devisee that fails for any reason passes to the other residuary devisee, or to other residuary devisees in proportion to the interest of each in the remaining part of the residue.
(1) If a testator executes a will that devises securities and the testator then owned securities that meet the description in the will, the devise includes additional securities owned by the testator at death to the extent the additional securities were acquired by the testator after the will was executed as a result of the testator's ownership of the described securities and are securities of any of the following types:
(a) securities of the same organization acquired by reason of action initiated by the organization or any successor, related, or acquiring organization, excluding any acquired by exercise of purchase options;
(b) securities of another organization acquired as a result of a merger, consolidation, reorganization, or other distribution by the organization or any successor, related, or acquiring organization; or
(c) securities of the same organization acquired as a result of a plan of reinvestment.
(2) Distributions in cash before death with respect to a described security are not part of the devise.
(1) A specific devisee has a right to the specifically devised property in the testator's estate at death and:
(a) any balance of the purchase price, together with any security agreement, owing from a purchaser to the testator at death by reason of sale of the property;
(b) any amount of a condemnation award for the taking of the property unpaid at death;
(c) any proceeds unpaid at death on fire or casualty insurance on or other recovery for injury to the property;
(d) property owned by the testator at death and acquired as a result of foreclosure, or obtained in lieu of foreclosure, of the security interest for a specifically devised obligation;
(e) real or tangible personal property owned by the testator at death which the testator acquired as a replacement for specifically devised real or tangible personal property; and
(f) unless the facts and circumstances indicate that ademption of the devise was intended by the testator or ademption of the devise is consistent with the testator's manifested plan of distribution, the value of the specifically devised property to the extent the specifically devised property is not in the testator's estate at death and its value or its replacement is not covered by Subsections (1)(a) through (e).
(2) If specifically devised property is sold or mortgaged by a conservator or by an agent acting within the authority of a durable power of attorney for an incapacitated principal, or if a condemnation award, insurance proceeds, or recovery for injury to the property are paid to a conservator or to an agent acting within the authority of a durable power of attorney for an incapacitated principal, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the amount of the unpaid loan, the condemnation award, the insurance proceeds, or the recovery.
(3) The right of a specific devisee under Subsection (2) is reduced by any right the devisee has under Subsection (1).
(4) For the purposes of the references in Subsection (2) to a conservator, Subsection (2) does not apply if after the sale, mortgage, condemnation, casualty, or recovery, it was adjudicated that the testator's incapacity ceased and the testator survived the adjudication by one year.
(5) For the purposes of the references in Subsection (2) to an agent acting within the authority of a durable power of attorney for an incapacitated principal:
(a) "incapacitated principal" means a principal who is an incapacitated person;
(b) no adjudication of incapacity before death is necessary; and
(c) the acts of an agent within the authority of a durable power of attorney are presumed to be for an incapacitated principal.
A specific devise passes subject to any mortgage interest existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts.
(1) Property a testator gave in his lifetime to a person is treated as a satisfaction of a devise in whole or in part, only if:
(a) the will provides for deduction of the gift;
(b) the testator declared in a contemporaneous writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise; or
(c) the devisee acknowledged in writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise.
(2) For purposes of partial satisfaction, property given during lifetime is valued as of the time the devisee came into possession or enjoyment of the property or at the testator's death, whichever occurs first.
(3) If the devisee fails to survive the testator, the gift is treated as a full or partial satisfaction of the devise, as appropriate, in applying Sections 75-2-603 and 75-2-604, unless the testator's contemporaneous writing provides otherwise.
For estates of decedents dying after December 31, 1981, where a decedent's will executed before September 13, 1981, contains a formula expressly providing that the decedent's spouse is to receive the maximum amount of property qualifying for the marital deduction allowable by federal law, this formula shall be construed as referring to the unlimited marital deduction allowable by federal law as amended by Section 403(a) of the Economic Recovery Tax Act of 1981.
A general direction in a will to pay all taxes imposed as a result of a testator's death or similar language shall not be construed to include taxes imposed on a "generation skipping transfer" under Section 2601 of the Internal Revenue Code of 1986 (or any successor or amended section of similar content) unless the testator shall express an intention that these taxes be paid out of his estate by reference to the generation skipping tax or otherwise.
In the absence of a finding of a contrary intention, the rules of construction in this part control the construction of a governing instrument. The rules of construction in this part apply to a governing instrument of any type, except as the application of a particular section is limited by its terms to a specific type or types of provision or governing instrument.
(1) Except as provided in Subsection (4), an individual who is not established by clear and convincing evidence to have survived an event, including the death of another individual, by 120 hours is considered to have predeceased the event.
(2) Except as provided in Subsection (4), for purposes of a provision of a governing instrument that relates to an individual surviving an event, including the death of another individual, an individual who is not established by clear and convincing evidence to have survived the event by 120 hours is considered to have predeceased the event.
(3) Except as provided in Subsection (4), if:
(a) it is not established by clear and convincing evidence that one of two co-owners with right of survivorship survived the other co-owner by 120 hours, 1/2 of the property passes as if one had survived by 120 hours and 1/2 as if the other had survived by 120 hours; and
(b) there are more than two co-owners and it is not established by clear and convincing evidence that at least one of them survived the others by 120 hours, the property passes in the proportion that one bears to the whole number of co-owners. For the purposes of this subsection, "co-owners with right of survivorship" includes joint tenants, tenants by the entireties, and other co-owners of property or accounts held under circumstances that entitles one or more to the whole of the property or account on the death of the other or others.
(4) Survival by 120 hours is not required if:
(a) the governing instrument contains language dealing explicitly with simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case;
(b) the governing instrument expressly indicates that an individual is not required to survive an event, including the death of another individual, by any specified period or expressly requires the individual to survive the event by a specified period; but survival of the event or the specified period shall be established by clear and convincing evidence;
(c) the imposition of a 120-hour requirement of survival would cause a nonvested property interest or a power of appointment to fail to qualify for validity under Section 75-2-1203 or to become invalid under Section 75-2-1203; but survival shall be established by clear and convincing evidence; or
(d) the application of a 120-hour requirement of survival to multiple governing instruments would result in an unintended failure or duplication of a disposition; but survival shall be established by clear and convincing evidence.
(5)
(a) A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument who, under this section, is not entitled to the payment or item of property, or for having taken any other action in good faith reliance on the beneficiary's apparent entitlement under the terms of the governing instrument, before the payor or other third party received written notice of a claimed lack of entitlement under this section. A payor or other third party is liable for a payment made or other action taken after the payor or other third party received written notice of a claimed lack of entitlement under this section.
(b) Written notice of a claimed lack of entitlement under Subsection (5)(a) shall be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of a claimed lack of entitlement under this section, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to the decedent's estates located in the county of the decedent's residence. The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the determination. Payments, transfers, or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.
(6)
(a) A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. But a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section.
(b) If this section or any part of this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted.
The meaning and legal effect of a governing instrument is determined by the local law of the state selected in the governing instrument, unless the application of that law is contrary to the provisions relating to the elective share described in Part 2, Elective Share of Surviving Spouse, the provisions relating to exempt property and allowances described in Part 4, Exempt Property and Allowances, or any other public policy of this state otherwise applicable to the disposition.
(1)
(a) Adopted individuals and individuals born out of wedlock, and their respective descendants if appropriate to the class, are included in class gifts and other terms of relationship in accordance with the rules for intestate succession.
(b) Terms of relationship that do not differentiate relationships by blood from those by affinity, such as "uncles," "aunts," "nieces," or "nephews," are construed to exclude relatives by affinity.
(c) Terms of relationship that do not differentiate relationships by the half blood from those by the whole blood, such as "brothers," "sisters," "nieces," or "nephews," are construed to include both types of relationships.
(2) In addition to the requirements of Subsection (1), in construing a dispositive provision of a transferor who is not the parent, an individual born to the parent is not considered the child of that parent unless the individual lived while a minor as a regular member of the household of that parent or of that parent's parent, brother, sister, spouse, or surviving spouse.
(3) In addition to the requirements of Subsection (1), in construing a dispositive provision of a transferor who is not the adopting parent, an adopted individual is not considered the child of the adopting parent unless the adopted individual lived while a minor, either before or after the adoption, as a regular member of the household of the adopting parent.
(1) As used in this section:
(a) "Alternative beneficiary designation" means a beneficiary designation that is expressly created by the governing instrument and, under the terms of the governing instrument, can take effect instead of another beneficiary designation on the happening of one or more events, including survival of the decedent or failure to survive the decedent, whether an event is expressed in condition-precedent, condition-subsequent, or any other form.
(b) "Beneficiary" means the beneficiary of a beneficiary designation under which the beneficiary shall survive the decedent and includes:
(i) a class member if the beneficiary designation is in the form of a class gift; and
(ii) an individual or class member who was deceased at the time the beneficiary designation was executed as well as an individual or class member who was then living but who failed to survive the decedent, but excludes a joint tenant of a joint tenancy with the right of survivorship and a party to a joint and survivorship account.
(c) "Beneficiary designation" includes an alternative beneficiary designation and a beneficiary designation in the form of a class gift.
(d) "Class member" includes an individual who fails to survive the decedent but who would have taken under a beneficiary designation in the form of a class gift had he survived the decedent.
(e) "Stepchild" means a child of the decedent's surviving, deceased, or former spouse, and not of the decedent.
(f) "Surviving beneficiary" or "surviving descendant" means a beneficiary or a descendant who neither predeceased the decedent nor is considered to have predeceased the decedent under Section 75-2-702.
(2) If a beneficiary fails to survive the decedent and is a grandparent, a descendant of a grandparent, or a stepchild of the decedent, the following apply:
(a) Except as provided in Subsection (2)(d), if the beneficiary designation is not in the form of a class gift and the deceased beneficiary leaves surviving descendants, a substitute gift is created in the beneficiary's surviving descendants. They take per capita at each generation the property to which the beneficiary would have been entitled had the beneficiary survived the decedent.
(b) Except as provided in Subsection (2)(d), if the beneficiary designation is in the form of a class gift, other than a beneficiary designation to "issue," "descendants," "heirs of the body," "heirs," "next-of-kin," "relatives," or "family," or a class described by language of similar import, a substitute gift is created in the surviving descendants of any deceased beneficiary. The property to which the beneficiaries would have been entitled had all of them survived the decedent passes to the surviving beneficiaries and the surviving descendants of the deceased beneficiaries. Each surviving beneficiary takes the share to which he would have been entitled had the deceased beneficiaries survived the decedent. Each deceased beneficiary's surviving descendants who are substituted for the deceased beneficiary take per capita at each generation the share to which the deceased beneficiary would have been entitled had the deceased beneficiary survived the decedent. For the purposes of this paragraph, "deceased beneficiary" means a class member who failed to survive the decedent and left one or more surviving descendants.
(c) For the purposes of Section 75-2-701, words of survivorship, such as in a beneficiary designation to an individual "if he survives me," or in a beneficiary designation to "my surviving children," are, in the absence of clear and convincing evidence, a sufficient indication of an intent contrary to the application of this section.
(d) If a governing instrument creates an alternative beneficiary designation with respect to a beneficiary designation for which a substitute gift is created by Subsection (2)(a) or (b), the substitute gift is superseded by the alternative beneficiary designation only if an expressly designated beneficiary of the alternative beneficiary designation is entitled to take.
(3)
(a) A payor is protected from liability in making payments under the terms of the beneficiary designation until the payor has received written notice of a claim to a substitute gift under this section. Payment made before the receipt of written notice of a claim to a substitute gift under this section discharges the payor, but not the recipient, from all claims for the amounts paid. A payor is liable for a payment made after the payor has received written notice of the claim. A recipient is liable for a payment received, whether or not written notice of the claim is given.
(b) The written notice of the claim shall be mailed to the payor's main office or home by registered or certified mail, return receipt requested, or served upon the payor in the same manner as a summons in a civil action. Upon receipt of written notice of the claim, a payor may pay any amount owed by it to the court having jurisdiction of the probate proceedings relating to the decedent's estate or, if no proceedings have been commenced, to the court having jurisdiction of probate proceedings relating to the decedent's estates located in the county of the decedent's residence. The court shall hold the funds and, upon its determination under this section, shall order disbursement in accordance with the determination. Payment made to the court discharges the payor from all claims for the amounts paid.
(4)
(a) A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. But a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section.
(b) If this section or any part of this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted.
(1) As used in this section:
(a) "Alternative future interest" means an expressly created future interest that can take effect in possession or enjoyment instead of another future interest on the happening of one or more events, including survival of an event or failure to survive an event, whether an event is expressed in condition-precedent, condition-subsequent, or any other form. A residuary clause in a will does not create an alternative future interest with respect to a future interest created in a nonresiduary devise in the will, whether or not the will specifically provides that lapsed or failed devises are to pass under the residuary clause.
(b) "Beneficiary" means the beneficiary of a future interest and includes a class member if the future interest is in the form of a class gift.
(c) "Class member" includes an individual who fails to survive the distribution date but who would have taken under a future interest in the form of a class gift had he survived the distribution date.
(d) "Distribution date" with respect to a future interest, means the time when the future interest is to take effect in possession or enjoyment. The distribution date need not occur at the beginning or end of a calendar day, but can occur at a time during the course of a day.
(e) "Future interest" includes an alternative future interest and a future interest in the form of a class gift.
(f) "Future interest under the terms of a trust" means a future interest that was created by a transfer creating a trust or to an existing trust or by an exercise of a power of appointment to an existing trust, directing the continuance of an existing trust, designating a beneficiary of an existing trust, or creating a trust.
(g) "Surviving beneficiary" or "surviving descendant" means a beneficiary or a descendant who neither predeceased the distribution date nor is considered to have predeceased the distribution date under Section 75-2-702.
(2) A future interest under the terms of a trust is contingent on the beneficiary's surviving the distribution date. If a beneficiary of a future interest under the terms of a trust fails to survive the distribution date, the following apply:
(a) Except as provided in Subsection (2)(d), if the future interest is not in the form of a class gift and the deceased beneficiary leaves surviving descendants, a substitute gift is created in the beneficiary's surviving descendants. They take per capita at each generation the property to which the beneficiary would have been entitled had the beneficiary survived the distribution date.
(b) Except as provided in Subsection (2)(d), if the future interest is in the form of a class gift, other than a future interest to "issue," "descendants," "heirs of the body," "heirs," "next-of-kin," "relatives," or "family," or a class described by language of similar import, a substitute gift is created in the surviving descendants of any deceased beneficiary. The property to which the beneficiaries would have been entitled had all of them survived the distribution date passes to the surviving beneficiaries and the surviving descendants of the deceased beneficiaries. Each surviving beneficiary takes the share to which he would have been entitled had the deceased beneficiaries survived the distribution date. Each deceased beneficiary's surviving descendants who are substituted for the deceased beneficiary take per capita at each generation the share to which the deceased beneficiary would have been entitled had the deceased beneficiary survived the distribution date. For the purposes of this subsection, "deceased beneficiary" means a class member who failed to survive the distribution date and left one or more surviving descendants.
(c) For the purposes of Section 75-2-701, words of survivorship attached to a future interest are, in the absence of clear and convincing evidence, a sufficient indication of an intent contrary to the application of this section. Words of survivorship include words of survivorship that relate to the distribution date or to an earlier or an unspecified time, whether those words of survivorship are expressed in condition-precedent, condition-subsequent, or any other form.
(d) If a governing instrument creates an alternative future interest with respect to a future interest for which a substitute gift is created by Subsection (2)(a) or (b), the substitute gift is superseded by the alternative future interest only if an expressly designated beneficiary of the alternative future interest is entitled to take in possession or enjoyment.
(3) If, after the application of this section, there is no surviving taker, the property passes in the following order:
(a) if the trust was created in a nonresiduary devise in the transferor's will or in a codicil to the transferor's will, the property passes under the residuary clause in the transferor's will; for purposes of this section, the residuary clause is treated as creating a future interest under the terms of a trust; and
(b) if no taker is produced by the application of Subsection (3)(a), the property passes to the transferor's heirs under Section 75-2-711.
If a class gift in favor of "descendants," "issue," or "heirs of the body" does not specify the manner in which the property is to be distributed among the class members, the property is distributed among the class members who are living when the interest is to take effect in possession or enjoyment, in such shares as they would receive, under the applicable law of intestate succession, if the designated ancestor had then died intestate owning the subject matter of the class gift.
(1) As used in this section:
(a) "Deceased child" or "deceased descendant" means a child or a descendant who either predeceased the distribution date or is considered to have predeceased the distribution date under Section 75-2-702.
(b) "Distribution date," with respect to an interest, means the time when the interest is to take effect in possession or enjoyment. The distribution date need not occur at the beginning or end of a calendar day, but can occur at a time during the course of a day.
(c) "Surviving ancestor," "surviving child," or "surviving descendant" means an ancestor, a child, or a descendant who neither predeceased the distribution date nor is considered to have predeceased the distribution date under Section 75-2-702.
(2) If an applicable statute or a governing instrument calls for property to be distributed or taken "per capita at each generation," the property is divided into as many equal shares as there are:
(a) surviving descendants in the generation nearest to the designated ancestor which contains one or more surviving descendants; and
(b) deceased descendants in the same generation who left surviving descendants, if any. Each surviving descendant in the nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving descendants of the deceased descendants as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the distribution date.
(3) If a governing instrument calls for property to be distributed or taken "per stirpes," "by representation," or "by right of representation," the property is divided into as many equal shares as there are:
(a) surviving children of the designated ancestor; and
(b) deceased children who left surviving descendants. Each surviving child, if any, is allocated one share. The share of each deceased child with surviving descendants is divided in the same manner, with subdivision repeating at each succeeding generation until the property is fully allocated among surviving descendants.
(4) If a governing instrument calls for property to be distributed or taken "per capita," "share and share alike," or "to the survivor of them," the property is divided into as many equal shares as there are living persons named on the distribution date.
(5) For the purposes of Subsections (2) and (3), an individual who is deceased and left no surviving descendant is disregarded, and an individual who leaves a surviving ancestor who is a descendant of the designated ancestor is not entitled to a share.
The doctrine of worthier title is abolished as a rule of law and as a rule of construction. Language in a governing instrument describing the beneficiaries of a disposition as the transferor's "heirs," "heirs-at-law," "next-of-kin," "distributees," "relatives," or "family," or language of similar import, does not create or presumptively create a reversionary interest in the transferor.
If an applicable statute or a governing instrument calls for a present or future distribution to or creates a present or future interest in a designated individual's "heirs," "heirs-at-law," "next-of-kin," "relatives," or "family," or language of similar import, the property passes to those persons, including the state, and in such shares as would succeed to the designated individual's intestate estate under the intestate succession law of the designated individual's domicile if the designated individual died when the disposition is to take effect in possession or enjoyment. If the designated individual's surviving spouse is living but is remarried at the time the disposition is to take effect in possession or enjoyment, the surviving spouse is not an heir of the designated individual.
(1) A person, or the representative of a person, to whom an interest in or with respect to property or an interest therein devolves by whatever means may disclaim it in whole or in part by delivering or filing a written disclaimer under this section. The right to disclaim exists notwithstanding:
(a) any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction; or
(b) any restriction or limitation on the right to disclaim contained in the governing instrument. For purposes of this subsection, the "representative of a person" includes a personal representative of a decedent, a conservator of a person with a disability, a guardian of a minor or incapacitated person, and an agent acting on behalf of the person within the authority of a power of attorney.
(2) The following rules govern the time when a disclaimer shall be filed or delivered:
(a)
(i) If the property or interest has devolved to the disclaimant under a testamentary instrument or by the laws of intestacy, the disclaimer shall be filed, if of a present interest, not later than nine months after the death of the deceased owner or deceased donee of a power of appointment and, if of a future interest, not later than nine months after the event determining that the taker of the property or interest is finally ascertained and his interest is indefeasibly vested.
(ii) The disclaimer shall be filed in a court with jurisdiction under Title 78A, Judiciary and Judicial Administration.
(iii) Notwithstanding Title 78B, Chapter 3a, Venue for Civil Actions, a person shall bring an action described in Subsection (2)(a) in the county in which proceedings for the administration of the estate of the deceased owner or deceased donee of the power have been commenced if the action is brought in the district court.
(iv) A copy of the disclaimer shall be delivered in person or mailed by registered or certified mail, return receipt requested, to any personal representative or other fiduciary of the decedent or donee of the power.
(b) If a property or interest has devolved to the disclaimant under a nontestamentary instrument or contract, the disclaimer shall be delivered or filed, if of a present interest, not later than nine months after the effective date of the nontestamentary instrument or contract and, if of a future interest, not later than nine months after the event determining that the taker of the property or interest is finally ascertained and his interest is indefeasibly vested. If the person entitled to disclaim does not know of the existence of the interest, the disclaimer shall be delivered or filed not later than nine months after the person learns of the existence of the interest. The effective date of a revocable instrument or contract is the date on which the maker no longer has power to revoke it or to transfer to the maker or another the entire legal and equitable ownership of the interest. The disclaimer or a copy thereof shall be delivered in person or mailed by registered or certified mail, return receipt requested, to the person who has legal title to or possession of the interest disclaimed.
(c) A surviving joint tenant or tenant by the entireties may disclaim as a separate interest any property or interest therein devolving to him by right of survivorship. A surviving joint tenant or tenant by the entireties may disclaim the entire interest in any property or interest therein that is the subject of a joint tenancy or tenancy by the entireties devolving to the surviving joint tenant or tenant by the entireties, if the joint tenancy or tenancy by the entireties was created by act of a deceased joint tenant or tenant by the entireties, the survivor did not join in creating the joint tenancy or tenancy by the entireties, and has not accepted a benefit under it.
(d) If real property or an interest therein is disclaimed, a copy of the disclaimer may be recorded in the office of the county recorder of the county in which the property or interest disclaimed is located.
(3) The disclaimer shall:
(a) describe the property or interest disclaimed;
(b) declare the disclaimer and extent thereof; and
(c) be signed by the disclaimant.
(4) The effects of a disclaimer are:
(a) If property or an interest therein devolves to a disclaimant under a testamentary instrument, under a power of appointment exercised by a testamentary instrument, or under the laws of intestacy, and the decedent has not provided for another disposition of that interest, should it be disclaimed, or of disclaimed, or failed interests in general, the disclaimed interest devolves as if the disclaimant had predeceased the decedent, but if by law or under the testamentary instrument the descendants of the disclaimant would share in the disclaimed interest per capita at each generation or otherwise were the disclaimant to predecease the decedent, then the disclaimed interest passes per capita at each generation, or passes as directed by the governing instrument, to the descendants of the disclaimant who survive the decedent. A future interest that takes effect in possession or enjoyment after the termination of the estate or interest disclaimed takes effect as if the disclaimant had predeceased the decedent. A disclaimer relates back for all purposes to the date of death of the decedent.
(b) If property or an interest therein devolves to a disclaimant under a nontestamentary instrument or contract and the instrument or contract does not provide for another disposition of that interest, should it be disclaimed, or of disclaimed or failed interests in general, the disclaimed interest devolves as if the disclaimant has predeceased the effective date of the instrument or contract, but if by law or under the nontestamentary instrument or contract the descendants of the disclaimant would share in the disclaimed interest per capita at each generation or otherwise were the disclaimant to predecease the effective date of the instrument, then the disclaimed interest passes per capita at each generation, or passes as directed by the governing instrument, to the descendants of the disclaimant who survive the effective date of the instrument. A disclaimer relates back for all purposes to that date. A future interest that takes effect in possession or enjoyment at or after the termination of the disclaimed interest takes effect as if the disclaimant had died before the effective date of the instrument or contract that transferred the disclaimed interest.
(c) The disclaimer or the written waiver of the right to disclaim is binding upon the disclaimant or person waiving and all persons claiming through or under either of them.
(5) The right to disclaim property or an interest therein is barred by:
(a) an assignment, conveyance, encumbrance, pledge, or transfer of the property or interest, or a contract therefor;
(b) a written waiver of the right to disclaim;
(c) an acceptance of the property or interest or a benefit under it; or
(d) a sale of the property or interest under judicial sale made before the disclaimer is made.
(6) This section does not abridge the right of a person to waive, release, disclaim, or renounce property or an interest therein under any other statute.
(7) An interest in property that exists on July 1, 1998, as to which, if a present interest, the time for filing a disclaimer under this section has not expired or, if a future interest, the interest has not become indefeasibly vested or the taker finally ascertained, may be disclaimed within nine months after July 1, 1998.
(1) An individual who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, the individual is married to the decedent at the time of death. A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.
(2) For purposes of Part 1, Intestate Succession, Part 2, Elective Share of Surviving Spouse, Part 3, Spouse and Children Unprovided for in Wills, and Part 4, Exempt Property and Allowances, and Section 75-3-203, a surviving spouse does not include:
(a) an individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless subsequently they participate in a marriage ceremony purporting to marry each to the other or live together as husband and wife;
(b) an individual who, following an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a third individual; or
(c) an individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.
(1) As used in this section:
(a) "Conviction" means the same as that term is defined in Section 77-38b-102.
(b) "Decedent" means a deceased individual.
(c) "Disposition or appointment of property" includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument.
(d)
(i) Except as provided in Subsection (1)(d)(ii), "disqualifying homicide" means any felony homicide offense described in Title 76, Chapter 5, Offenses Against the Individual, for which the elements are established by a preponderance of the evidence and by applying the same principles of culpability and defenses described in Title 76, Criminal Offenses.
(ii) "Disqualifying homicide" does not include an offense for:
(A) automobile homicide, as described in Section 76-5-207; and
(B) automobile homicide involving using a handheld wireless communication device while driving, as described in Section 76-5-207.5.
(e) "Governing instrument" means a governing instrument executed by the decedent.
(f) "Killer" means an individual who commits a disqualifying homicide.
(g) "Revocable" means a disposition, appointment, provision, or nomination under which the decedent, at the time of or immediately before death, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the killer regardless of whether at the time or immediately before death:
(i) the decedent was empowered to designate the decedent in place of the decedent's killer; or
(ii) the decedent had the capacity to exercise the power.
(2)
(a) An individual who commits a disqualifying homicide of the decedent forfeits all benefits under this chapter with respect to the decedent's estate, including an intestate share, an elective share, an omitted spouse's or child's share, a homestead allowance, exempt property, and a family allowance.
(b) If the decedent died intestate, the decedent's intestate estate passes as if the killer disclaimed the killer's intestate share.
(3) The killing of the decedent by means of a disqualifying homicide:
(a) revokes any revocable:
(i) disposition or appointment of property made by the decedent to the killer in a governing instrument;
(ii) provision in a governing instrument conferring a general or nongeneral power of appointment on the killer; and
(iii) nomination of the killer in a governing instrument, nominating or appointing the killer to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, or agent; and
(b) severs the interests of the decedent and killer in property held by them at the time of the killing as joint tenants with the right of survivorship, transforming the interests of the decedent and killer into tenancies in common.
(4) A severance under Subsection (3)(b) does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the killer unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership.
(5) Provisions of a governing instrument are given effect as if the killer disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the killer predeceased the decedent.
(6) A wrongful acquisition of property or interest by one who kills another under circumstances not covered by this section shall be treated in accordance with the principle that a killer cannot profit from the killer's wrong.
(7)
(a) An interested person may petition the court to determine whether an individual has committed a disqualifying homicide of the decedent.
(b) An individual has committed a disqualifying homicide of the decedent for purposes of this section if:
(i) unless the court finds that disinheritance would create a manifest injustice, the court finds that, by a preponderance of the evidence, the individual has committed a disqualifying homicide of the decedent; or
(ii) the court finds that a judgment of conviction has been entered against the individual for a disqualifying homicide of the decedent and all direct appeals for the judgment have been exhausted.
(8)
(a) Before a court determines whether an individual committed a disqualifying homicide of the decedent under Subsection (7), the decedent's estate may petition the court to:
(i) enter a temporary restraining order, an injunction, or a temporary restraining order and an injunction, to preserve the property or assets of the killer or the killer's estate;
(ii) require the execution of a trustee's bond under Section 75B-2-702 for the killer's estate;
(iii) establish a constructive trust on any property or assets of the killer or the killer's estate that is effective from the time the killer's act caused the death of the decedent; or
(iv) take any other action necessary to preserve the property or assets of the killer or the killer's estate:
(A) until a court makes a determination under Subsection (7); or
(B) for the payment of all damages and judgments for conduct resulting in the disqualifying homicide of the decedent.
(b) Upon a petition for a temporary restraining order or an injunction under Subsection (8)(a)(i), a court may enter a temporary restraining order against an owner's property in accordance with Rule 65A of the Utah Rules of Civil Procedure, without notice or opportunity of a hearing, if the court determines that:
(i) there is a substantial likelihood that the property is, or will be, necessary to satisfy a judgment or damages owed by the killer for conduct resulting in the disqualifying homicide of the decedent; and
(ii) notice of the hearing would likely result in the property being:
(A) sold, distributed, destroyed, or removed; and
(B) unavailable to satisfy a judgment or damages owed by the killer for conduct resulting in the disqualifying homicide of the decedent.
(9)
(a)
(i) A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by a disqualifying homicide, or for having taken any other action in good faith reliance on the validity of the governing instrument, upon request and satisfactory proof of the decedent's death, before the payor or other third party received written notice of a claimed forfeiture or revocation under this section.
(ii) A payor or other third party is liable for a payment made or other action taken after the payor or other third party received written notice of a claimed forfeiture or revocation under this section.
(b)
(i) Written notice of a claimed forfeiture or revocation under Subsection (9)(a) shall be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action.
(ii) Upon receipt of written notice of a claimed forfeiture or revocation under this section, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by the payor or third party to or with:
(A) the court having jurisdiction of the probate proceedings relating to the decedent's estate; or
(B) if no proceedings have been commenced, the court having jurisdiction of probate proceedings relating to the decedent's estates located in the county of the decedent's residence.
(iii) The court shall hold the funds or item of property and, upon the court's determination under this section, shall order disbursement in accordance with the determination.
(iv) Payments, transfers, or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.
(10)
(a) A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is:
(i) not obligated under this section to return the payment, item of property, or benefit; and
(ii) not liable under this section for the amount of the payment or the value of the item of property or benefit.
(b) Notwithstanding Subsection (10)(a), a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is:
(i) obligated to return the payment, item of property, or benefit to the person who is entitled to the payment, property, or benefit under this section; and
(ii) personally liable for the amount of the payment or the value of the item of property or benefit to the person who is entitled to the payment, property, or benefit under this section.
(c) If this section or any part of this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is:
(i) obligated to return the payment, item of property, or benefit to the person who would have been entitled to the payment, property, or benefit if this section or part were not preempted; and
(ii) personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to the payment, property, or benefit if this section or part were not preempted.
(1) As used in this section:
(a) "Disposition or appointment of property" includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument.
(b) "Divorce or annulment" means any divorce or annulment, or any dissolution or declaration of invalidity of a marriage, that would exclude the spouse as a surviving spouse within the meaning of Section 75-2-802. A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.
(c) "Divorced individual" includes an individual whose marriage has been annulled.
(d) "Governing instrument" means a governing instrument executed by the divorced individual before the divorce or annulment of the individual's marriage to the individual's former spouse.
(e) "Relative of the divorced individual's former spouse" means an individual who is related to the divorced individual's former spouse by blood, adoption, or affinity and who, after the divorce or annulment, is not related to the divorced individual by blood, adoption, or affinity.
(f) "Revocable," with respect to a disposition, appointment, provision, or nomination, means one under which the divorced individual, at the time of the divorce or annulment, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the individual's former spouse or former spouse's relative, whether or not the divorced individual was then empowered to designate another in place of the individual's former spouse or in place of the individual's former spouse's relative and whether or not the divorced individual then had the capacity to exercise the power.
(2) Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce, or annulment, the divorce or annulment of a marriage:
(a) revokes any revocable:
(i) disposition or appointment of property made by a divorced individual to the individual's former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual's former spouse;
(ii) provision in a governing instrument conferring a general or nongeneral power of appointment on the divorced individual's former spouse or on a relative of the divorced individual's former spouse; and
(iii) nomination in a governing instrument, which nominates a divorced individual's former spouse or a relative of the divorced individual's former spouse to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, conservator, agent, or guardian; and
(b) severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship, transforming the interests of the former spouses into tenancies in common.
(3) A severance under Subsection (2)(b) does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the survivor of the former spouses unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property, which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership.
(4) Provisions of a governing instrument are given effect as if the former spouse and relatives of the former spouse disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the former spouse and relatives of the former spouse died immediately before the divorce or annulment.
(5) Provisions revoked solely by this section are revived by the divorced individual's remarriage to the former spouse or by a nullification of the divorce or annulment.
(6) No change of circumstances other than as described in this section and in Sections 75-2-803 and 75-2-807 effects a revocation.
(7)
(a) A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by a divorce, annulment, or remarriage, or for having taken any other action in good faith reliance on the validity of the governing instrument, before the payor or other third party received written notice of the divorce, annulment, or remarriage. A payor or other third party is liable for a payment made or other action taken after the payor or other third party received written notice of a claimed forfeiture or revocation under this section.
(b) Written notice of the divorce, annulment, or remarriage under Subsection (7)(a) shall be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of the divorce, annulment, or remarriage, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent's estate or, if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to the decedent's estates located in the county of the decedent's residence. The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement or transfer in accordance with the determination. Payments, transfers, or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.
(8)
(a) A person who purchases property from a former spouse, relative of a former spouse, or any other person for value and without notice, or who receives from a former spouse, relative of a former spouse, or any other person a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit, nor is liable under this section for the amount of the payment or the value of the item of property or benefit. But a former spouse, relative of a former spouse, or other person who, not for value, received a payment, item of property, or any other benefit to which that person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section.
(b) If this section or any part of this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a former spouse, relative of the former spouse, or any other person who, not for value, received a payment, item of property, or any other benefit to which that person is not entitled under this section is obligated to return that payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted.
The court may reform the terms of a governing instrument, even if unambiguous, to conform the terms to the transferor's intention if it is proved by clear and convincing evidence that the transferor's intent and the terms of the governing instrument were affected by a mistake of fact or law, whether in expression or inducement.
To achieve the transferor's tax objectives, the court may modify the terms of a governing instrument in a manner that is not contrary to the transferor's probable intention. The court may provide that the modification has retroactive effect.
(1) As used in this section:
(a) "Abuser" means a person who is convicted of committing a disqualifying felony offense against a vulnerable adult.
(b) "Dependent adult" means the same as that term is defined in Section 76-5-111.
(c) "Disposition or apportionment of property" means a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument.
(d) "Disqualifying felony offense" means a felony offense against a vulnerable adult that meets the elements of:
(i) felony financial exploitation of a vulnerable adult, as described in Section 76-5-111.4;
(ii) felony aggravated abuse of a vulnerable adult, as described in Section 76-5-111.2;
(iii) felony abuse of a vulnerable adult based on isolation, as described in Subsection 76-5-111(3); or
(iv) any felony offense in another state, territory, or district of the United States that, if committed in Utah, would constitute a felony offense described in this Subsection (1)(d).
(e) "Elder adult" means the same as that term is defined in Section 76-5-111.
(f) "Governing instrument" means a governing instrument executed by a vulnerable adult.
(g) "Vulnerable adult" means the same as that term is defined in Section 76-5-111.
(2)
(a) An abuser who is convicted of a disqualifying felony offense against a vulnerable adult forfeits any benefit under this chapter with respect to the vulnerable adult's estate:
(i) that the vulnerable adult made to the abuser in a governing instrument; or
(ii) according to intestate succession, as described in Title 75, Chapter 2, Intestate Succession and Wills.
(b) The abuser described in Subsection (2)(a):
(i) may not inherit, take, enjoy, receive, or otherwise benefit from the estate of the vulnerable adult described in Subsection (2)(a), including by any:
(A) intestate share;
(B) elective share;
(C) omitted spouse's or child's share;
(D) homestead allowance;
(E) exempt property;
(F) family allowance;
(G) banknote or other form of physical currency;
(H) deposit account;
(I) interest-bearing account;
(J) contents of a safe deposit box;
(K) investment;
(L) retirement benefit or account;
(M) pension;
(N) annuity; or
(O) insurance proceed; and
(ii) is considered to have predeceased the vulnerable adult with respect to any intestate property or governing instrument belonging to the vulnerable adult.
(3) Conviction of a disqualifying felony offense against a vulnerable adult:
(a) revokes any revocable:
(i) disposition or apportionment of property that the vulnerable adult made to the abuser in a governing instrument;
(ii) provision in a governing instrument conferring a general or nongeneral power of appointment on the abuser; and
(iii) nomination of the abuser in a governing instrument nominating or appointing the abuser to serve in any fiduciary or representative capacity, including a personal representative, representative payee, executor, trustee, or agent; and
(b)
(i) severs any interest in property held by the abuser and the vulnerable adult as joint tenants with the right of survivorship; and
(ii) transforms the interests described in Subsection (3)(b)(i) to a tenancy in common.
(4) A wrongful acquisition of property or interest by an abuser under circumstances not covered by this section shall be treated in accordance with the principle that one cannot profit from one's own wrongdoing.
(5) Revocation by the court of an abuser's interest in the property of the vulnerable adult and of an abuser's powers and appointments in the estate of the vulnerable adult as established by any governing instrument is final.
(6) Conviction of a disqualifying felony offense against a vulnerable adult:
(a) prevents any revocable interest or share an abuser has or may have in the estate of the vulnerable adult, under Subsection (2), from vesting into a right of property upon the death of the vulnerable adult; and
(b) is the triggering event for action under this section.
(7) As a consequence of bringing an action under this section, a court may not reduce or eliminate the rights, interest, or share in the estate of a vulnerable adult belonging to any interested person who:
(a) petitions the court under this section; and
(b) retains a property or other interest in the estate of a vulnerable adult, either as an heir, devisee, legatee, beneficiary, survivor, appointee, or claimant, notwithstanding any no-contest provision which appears in any governing instrument of the vulnerable adult.
(8)
(a) A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument that a disqualifying felony offense affects, or for having taken any other action in good faith reliance on the validity of the governing instrument, upon request and satisfactory proof of the decedent's death, before the payor or other third party received written notice of a claimed forfeiture or revocation under this section.
(b) A payor or other third party is liable for a payment made or other action taken after the payor or other third party received written notice of a claimed forfeiture or revocation under this section.
(c)
(i) An individual seeking enforcement of this section shall mail a written notice of a claimed forfeiture or revocation to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action.
(ii) Upon receipt of a written notice of a claimed forfeiture or revocation described in Subsection (8)(c)(i), a payor or other third party may pay any amount owed or transfer or deposit any item of property the payor or third party holds to or with:
(A) the court having jurisdiction of the probate proceedings relating to the vulnerable adult's estate; or
(B) if the individual who gave notice has not brought an action under this section, to or with the court having jurisdiction of probate proceedings relating to the decedent's estate located in the county of the decedent's residence.
(d) A court described in Subsection (8)(c)(ii) shall:
(i) hold the funds or item of property; and
(ii) upon the court's determination under this section, order disbursement in accordance with the determination.
(e) A payor's or third party's payment, transfer, or deposit made to or with the court discharges the payor or third party from all claims for the value of the paid amounts or transferred or deposited items of property.
(9)
(a) A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation:
(i) may retain the payment, item of property, or benefit; and
(ii) is not liable under this section for the amount of the payment or the value of the item of property or benefit.
(b) A person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section:
(i) shall return the payment, item of property, or benefit to the person who is entitled to the payment or the item of property or benefit under this section; or
(ii) is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to the payment or the item of property or benefit under this section.
(c) If this section, or any part of this section, is preempted by federal law with respect to a payment, an item of property, or any other benefit that this section addresses, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section:
(i) shall return the payment, item of property, or benefit to the person who would have been entitled to the payment or the item of property or benefit if this section or the relevant part of this section was not preempted; or
(ii) is personally liable for the amount of the payment, or the value of the item of property or benefit, to the person who would have been entitled to the payment or the item of property or benefit if this section or the relevant part of this section was not preempted.
(10) Notwithstanding Subsections (2) through (6), and notwithstanding an abuser's conviction for a disqualifying felony offense, the abuser may inherit, take, enjoy, receive, or otherwise benefit from the estate of the vulnerable adult if:
(a)
(i) after the abuser's conviction, the vulnerable adult executes a new governing instrument or amends or affirms an existing governing instrument under which the abuser receives a benefit; and
(ii) the vulnerable adult is not incapacitated, as that term is defined in Section 75-1-201, at the time the vulnerable adult makes the execution, amendment, or affirmation described in Subsection (10)(a)(i); or
(b) the court reviewing a petition under this section determines that a manifest injustice would result if the abuser is disinherited by operation of this section.
(11) This section:
(a) does not operate retrospectively;
(b) except as provided in Subsection (11)(c), does not apply to a disqualifying felony offense that occurred prior to May 5, 2021; and
(c) applies to a disqualifying felony offense described in Subsection (10)(b) if any portion of the offense persists after May 5, 2021.
After the death of a testator and on request of an interested person, a person having custody of a will of the testator shall deliver it with reasonable promptness to a person able to secure its probate. A person who wilfully fails to deliver a will is liable to a person aggrieved for damages that may be sustained by the failure. A person who wilfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court.
(1) Subject to Subsection (3), if a trust is for a specific lawful noncharitable purpose or for a lawful noncharitable purpose to be selected by the trustee and there is no definite or definitely ascertainable beneficiary designated, the trust may be performed by the trustee for 21 years but no longer whether or not the terms of the trust contemplate a longer duration.
(2) Subject to this Subsection (2) and Subsection (3), a trust for the care of a designated domestic or pet animal is valid. The trust terminates when no living animal is covered by the trust. A governing instrument shall be liberally construed to bring the transfer within this subsection, to presume against the merely precatory or honorary nature of the disposition, and to carry out the general intent of the transferor. Extrinsic evidence is admissible in determining the transferor's intent.
(3) In addition to the provisions of Subsection (1) or (2), a trust covered by either of those subsections is subject to the following provisions:
(a) Except as expressly provided otherwise in the trust instrument, no portion of the principal or income may be converted to the use of the trustee or to any use other than for the trust's purposes or for the benefit of a covered animal.
(b) Upon termination, the trustee shall transfer the unexpended trust property in the following order:
(i) as directed in the trust instrument;
(ii) if the trust was created in a nonresiduary clause in the transferor's will or in a codicil to the transferor's will, under the residuary clause in the transferor's will; and
(iii) if no taker is produced by the application of Subsection (3)(b)(i) or (ii), to the transferor's heirs under Section 75-2-711.
(c) For the purposes of Section 75-2-707, the residuary clause is treated as creating a future interest under the terms of a trust.
(d) The intended use of the principal or income can be enforced by an individual designated for that purpose in the trust instrument or, if none, by an individual appointed by a court upon application to it by an individual.
(e) Except as ordered by the court or required by the trust instrument, no filing, report, registration, periodic accounting, separate maintenance of funds, appointment, or fee is required by reason of the existence of the fiduciary relationship of the trustee.
(f) A court may reduce the amount of the property transferred, if it determines that that amount substantially exceeds the amount required for the intended use. The amount of the reduction, if any, passes as unexpended trust property under Subsection (3)(b).
(g) If no trustee is designated or no designated trustee is willing or able to serve, a court shall name a trustee. A court may order the transfer of the property to another trustee, if required to assure that the intended use is carried out and if no successor trustee is designated in the trust instrument or if no designated successor trustee agrees to serve or is able to serve. A court may also make such other orders and determinations as shall be advisable to carry out the intent of the transferor and the purpose of this section.
This part is known as the "Statutory Rule Against Perpetuities."
This part shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this section among states enacting it.
(1) A nonvested property interest is invalid unless within 1,000 years after the interest's creation the interest vests or terminates.
(2) A general power of appointment not presently exercisable because of a condition precedent is invalid unless within 1,000 years after the general power of appointment's creation the power of appointment is irrevocably exercised or terminates.
(3) A nongeneral power of appointment or a general testamentary power of appointment is invalid unless within 1,000 years after its creation the power of appointment is irrevocably exercised or terminates.
(4) The language in a governing instrument is inoperative to the extent it produces a period of time that exceeds 1,000 years after if, in measuring a period from the creation of a trust or other property arrangement, the language:
(a) seeks to disallow the vesting or termination of any interest or trust beyond;
(b) seeks to postpone the vesting or termination of any interest or trust until; or
(c) seeks to operate in effect in any similar fashion upon, the later of:
(i) the expiration of a period of time not exceeding 1,000 years; or
(ii) the expiration of a period of time that exceeds or might exceed 1,000 years.
(5) If a power of appointment is exercised to create a new power of appointment, all property interests subject to that new power of appointment are invalid unless the property interests that are subject to the new power of appointment vest or terminate within 1,000 years after the creation of the new power of appointment.
(1) Except as otherwise provided in this section or Section 75-2-1207, the time of creation of a nonvested property interest or a power of appointment is determined under general principles of property law.
(2) For purposes of this part, if there is a person who alone can exercise a power created by a governing instrument to become the unqualified beneficial owner of:
(a) a nonvested property interest; or
(b) a property interest subject to a power of appointment described in Section 75-2-1203, the nonvested property interest or power of appointment is created when the power to become the unqualified beneficial owner terminates.
(3) For purposes of this title, a nonvested property interest or a power of appointment arising from a transfer of property to a previously funded trust or other existing property arrangement is created when the nonvested property interest or power of appointment in the original contribution was created.
(4) A person who exercises an initial power of appointment may provide in the exercise of that power of appointment:
(a) for a nonvested property interest that is considered:
(i) created when the initial power is irrevocably exercised or when a revocable exercise becomes irrevocable; and
(ii) not created at the time of the creation of the initial power of appointment that is exercised; and
(b) for a further power of appointment created by the exercise of the initial power of appointment that is considered:
(i) created when the initial power is irrevocably exercised or when a revocable exercise becomes irrevocable; and
(ii) not created at the time of the creation of the initial power of appointment that is exercised.
Upon the petition of an interested person, a court shall reform a disposition in the manner that most closely approximates the transferor's manifested plan of distribution and is within the 1,000 years allowed by Section 75-2-1203 if:
(1) a nonvested property interest or a power of appointment becomes invalid under Section 75-2-1203;
(2) a class gift is not but might become invalid under Section 75-2-1203 and the time has arrived when the share of any class member is to take effect in possession or enjoyment; or
(3) a nonvested property interest that is not validated by Section 75-2-1203 can vest but not within 1,000 years after its creation.
Section 75-2-1203 does not apply to:
(1) a nonvested property interest or a power of appointment arising out of a nondonative transfer, except a nonvested property interest or a power of appointment arising out of:
(a) a premarital or postmarital agreement;
(b) a separation or divorce settlement;
(c) a spouse's election;
(d) a similar arrangement arising out of a prospective, existing, or previous marital relationship between the parties;
(e) a contract to make or not to revoke a will or trust;
(f) a contract to exercise or not to exercise a power of appointment;
(g) a transfer in satisfaction of a duty of support; or
(h) a reciprocal transfer;
(2) a fiduciary's power relating to the administration or management of assets, including the power of a fiduciary to sell, lease, or mortgage property, and the power of a fiduciary to determine principal and income;
(3) a power to appoint a fiduciary;
(4) a discretionary power of a trustee to distribute principal before termination of a trust to a beneficiary having an indefeasibly vested interest in the income and principal;
(5) a nonvested property interest held by a charity, government, or governmental agency or subdivision, if the nonvested property interest is preceded by an interest held by another charity, government, or governmental agency or subdivision;
(6) a nonvested property interest in or a power of appointment with respect to a trust or other property arrangement forming part of a pension, profit-sharing, stock bonus, health, disability, death benefit, income deferral, or other current or deferred benefit plan for one or more employees, independent contractors, or their beneficiaries or spouses, to which contributions are made for the purpose of distributing to or for the benefit of the participants or their beneficiaries or spouses the property, income, or principal in the trust or other property arrangement, except a nonvested property interest or a power of appointment that is created by an election of a participant or a beneficiary or spouse;
(7) a property interest, power of appointment, or arrangement that was not subject to the common-law rule against perpetuities or is excluded by another statute of this state; or
(8) a property interest or arrangement subjected to a time limit under Section 75-2-1001.
A property interest that becomes invalid pursuant to Section 75-2-1203 upon the expiration of the 1,000-year period shall be distributed as follows:
(1) If the property interest is payable to one person, it shall be distributed to that person. If the property interest is payable to more than one person, it shall be distributed to the persons to whom the property interest is then payable:
(a) in the shares to which the persons are entitled; or
(b) equally among all persons who are entitled to shares if not specified.
(2) If the property interest is payable in the discretion of a trustee and is payable to one person, it shall be distributed to that person. If the property interest is payable to more than one person, it shall be distributed to the persons eligible to receive it:
(a) in the shares to which the persons are entitled; or
(b) equally among all persons who are entitled to shares if not specified.
(3) When there is no person then living to whom a property interest may be distributed under Subsection (1) or (2), it shall be payable to one or more organizations described in 26 U.S.C. 2055(a) Internal Revenue Code, or successor provisions and in the shares or proportions that the trustee or trustees then acting may determine.
(1)
(a) Except as extended by Subsection (2), this section applies to a nonvested property interest or a power of appointment that is created on or after December 31, 2003.
(b) For purposes of this section, a nonvested property interest or a power of appointment created by the exercise of a power of appointment is created when:
(i) the power is irrevocably exercised; or
(ii) a revocable exercise becomes irrevocable.
(2) If a nonvested property interest or a power of appointment was created before December 31, 2003, and is determined in a judicial proceeding, commenced on or after December 31, 2003, to violate Utah's rule against perpetuities as that rule existed before December 31, 2003, a court upon the petition of an interested person may reform the disposition:
(a) in the manner that most closely approximates the transferor's manifested plan of distribution; and
(b) that is within the limits of the rule against perpetuities applicable when the nonvested property interest or power of appointment was created.
(3) Section 75-2-1203 applies to a trust instrument or conveyance executed on or after December 31, 2003, if the trust instrument or conveyance creates a contingent power of appointment or nonvested property interest subject to the exercise of a power of appointment that creates a new or successive power of appointment.
The common law rule against perpetuities does not apply in this state.
On or after the effective date, when title to real property is granted to the trustee of a trust governed by Title 75, Chapter 2, Part 12, Statutory Rule Against Perpetuities, the terms of the trust, provisions regarding the appointment of successor trustees, and the names and addresses of successor trustees must be disclosed in accordance with Section 75B-2-816.
(1) On July 1, 1998:
(a) Any act done in any proceeding and any right accrued before July 1, 1998, is not impaired by the provisions of this title.
(b) If a right is acquired, extinguished, or barred on the expiration of a prescribed period of time which has commenced to run by the provisions of any statute before July 1, 1997, the provisions shall remain in force with respect to that right.
(2) Any rule of construction or presumption provided in these provisions applies to governing instruments executed before July 1, 1997, unless there is a finding of a contrary intent.
This part is known as the "Uniform Electronic Wills Act."
As used in this part:
(1) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(2) "Electronic presence" means the relationship of two or more individuals in different locations communicating in real time to the same extent as if the individuals were physically present in the same location.
(3) "Electronic will" means a will executed electronically in compliance with Subsection 75-2-1405(1).
(4) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(5) "Sign" means, with present intent to authenticate or adopt a record:
(a) to execute or adopt a tangible symbol; or
(b) to affix to or logically associate with the record an electronic symbol or process.
(6)
(a) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
(b) "State" includes a federally recognized Indian tribe.
(1) An electronic will is a will for all purposes of the law of this state.
(2) The law of this state applicable to wills and principles of equity apply to an electronic will, except as modified by this part.
A will executed electronically but not in compliance with Subsection 75-2-1405(1) is an electronic will under this part if executed in compliance with the law of the jurisdiction where the testator is:
(1) physically located when the will is signed; or
(2) domiciled or resides when the will is signed or when the testator dies.
(1) Subject to Subsection 75-2-1408(4) and except as provided in Section 75-2-1406, an electronic will shall be:
(a) a record that is readable as text at the time of signing under Subsection (1)(b);
(b) signed:
(i) by the testator; or
(ii) in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and
(c) signed in the physical or electronic presence of the testator by at least two individuals within a reasonable time after witnessing:
(i) the signing of the will under Subsection (1)(b); or
(ii) the testator's acknowledgment of the signing of the will under Subsection (1)(b) or the testator's acknowledgment of the will.
(2) Intent of a testator that the record under Subsection (1)(a) be the testator's electronic will may be established by extrinsic evidence.
Section 75-2-503 applies to a will executed electronically.
(1) An electronic will may revoke all or part of a previous will.
(2) All or part of an electronic will is revoked by:
(a) a subsequent will that revokes all or part of the electronic will expressly or by inconsistency; or
(b) a physical act if it is established by a preponderance of the evidence that the testator, with the intent of revoking all or part of the will, performed the act or directed another individual who performed the act in the testator's physical presence.
(1) An electronic will may be simultaneously executed, attested, and made self-proving by acknowledgment of the testator and affidavits of the witnesses.
(2) The acknowledgment and affidavits under Subsection (1) shall be:
(a) made before an officer authorized to administer oaths under law of the state in which execution occurs, regardless of whether that officer is also a witness to the electronic will; and
(b) evidenced by the officer's certificate under official seal affixed to or logically associated with the electronic will.
(3) The acknowledgment and affidavits under Subsection (1) shall be in substantially the following form:
I, ____________, the testator, and, being sworn, declare to the undersigned officer that I sign this instrument as my electronic will, I willingly sign this instrument or willingly direct another individual to sign this instrument for me, I execute it as my voluntary act for the purposes expressed in this instrument, and I am 18 years old or older, of sound mind, and under no constraint or undue influence.
____________Testator
We, ____________ and ____________, the witnesses, being sworn, declare to the undersigned officer that the testator signed this instrument as the testator's electronic will, that the testator willingly signed this instrument or willingly directed another individual to sign for the testator, and that each of us, in the physical or electronic presence of the testator, signs this instrument as witness to the testator's signing, and to the best of our knowledge the testator is 18 years old or older, of sound mind, and under no constraint or undue influence.___________Witness___________Witness
Certificate of officer:
State of ____________
County of ___________
Subscribed, sworn to, and acknowledged before me by ___________, the testator, and subscribed and sworn to before me by ____________ and ____________, witnesses, this _________ day of __________, ____.____________Signed____________Capacity of Officer
(4) A signature physically or electronically affixed to an affidavit that is affixed to or logically associated with an electronic will under this part is deemed a signature of the electronic will under Subsection 75-2-1405(1).
(5) To the extent that this section conflicts with Title 46, Chapter 1, Notaries Public Reform Act, this section supersedes Title 46, Chapter 1, Notaries Public Reform Act.
(1) An individual may create a certified paper copy of an electronic will by affirming under penalty of perjury that a paper copy of the electronic will is a complete, true, and accurate copy of the electronic will.
(2) If the electronic will is made self-proving, the certified paper copy of the will shall include the self-proving affidavits.
In applying and construing this part, consideration shall be given to the need to promote uniformity of the law with respect to the subject matter of this uniform act among states that enact this uniform act.
This part applies to the will of a decedent who dies on or after the effective date of this part.
This chapter applies to the disposition at death of the following property acquired by a married person:
(1) all personal property, wherever situated:
(a) which was acquired as or became, and remained, community property under the laws of another jurisdiction;
(b) all or the proportionate part of that property acquired with the rents, issues, or income of, or the proceeds from, or in exchange for, that community property; or
(c) traceable to that community property; and
(2) all or the proportionate part of any real property situated in this state which was acquired with the rents, issues or income of, the proceeds from, or in exchange for, property acquired as or which became, and remained, community property under the laws of another jurisdiction, or property traceable to that community property.
In determining whether this chapter applies to specific property, the following rebuttable presumptions apply:
(1) property acquired during marriage by a spouse of that marriage while domiciled in a jurisdiction under whose laws property could then be acquired as community property, is presumed to have been acquired as or to have become, and remained, property to which this chapter applies; and
(2) real property situated in this state and personal property wherever situated acquired by a married person while domiciled in a jurisdiction under whose laws property could not then be acquired as community property, title to which was taken in a form which created rights of survivorship, is presumed not to be property to which this chapter applies.
Upon the death of a married person, 1/2 of the property to which this chapter applies is the property of the surviving spouse and is not subject to testamentary disposition by the decedent or distribution under the laws of succession of this state. One-half of that property is the property of the decedent and is subject to testamentary disposition or distribution under the laws of succession of this state. Property to which this chapter applies may not reduce, be subject to, or be used in calculating, the surviving spouse's elective share under this title.
If the title to any property to which this chapter applies was held by the decedent at the time of death, title of the surviving spouse may be perfected by an order of the court or by execution of an instrument by the personal representative or the heirs or devisees of the decedent with the approval of the court. Any action to perfect title shall be brought by the surviving spouse or the surviving spouse's successors in interest within four months after written notification is received from the decedent's personal representative, or the successor trustee of the decedent's revocable trust, informing the surviving spouse of the limitations period. Neither the personal representative nor the court in which the decedent's estate is being administered has a duty to discover or attempt to discover whether property held by the decedent is property to which this chapter applies, unless a written demand is made by the surviving spouse or the spouse's successor in interest.
If the title to any property to which this chapter applies is held by the surviving spouse at the time of the decedent's death, the personal representative or an heir or devisee of the decedent may institute an action to perfect title to the property. The personal representative has no fiduciary duty to discover or attempt to discover whether any property held by the surviving spouse is property to which this chapter applies, unless a written demand is made by an heir, devisee, or creditor of the decedent.
(1) If a surviving spouse has apparent title to property to which this chapter applies, a purchaser for value or a lender taking a security interest in the property, takes the purchaser or lender's interest in the property free of any rights of the personal representative or an heir or devisee of the decedent.
(2) If a personal representative or an heir or devisee of the decedent has apparent title to property to which this chapter applies, a purchaser for value or a lender taking a security interest in the property takes the purchaser or lender's interest in the property free of any rights of the surviving spouse.
(3) A purchaser for value or a lender need not inquire whether a vendor or borrower acted properly.
(4) The proceeds of a sale or creation of a security interest shall be treated in the same manner as the property transferred to the purchaser for value or a lender.
This chapter does not affect rights of creditors with respect to property to which this chapter applies.
This chapter does not prevent married persons from severing or altering their interests in property to which this chapter applies.
This chapter does not authorize a person to dispose of property by will if it is held under limitations imposed by law preventing testamentary disposition by that person.
This chapter shall be applied and construed as to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among those states which enact it.
(1) The power of a person to leave property by will and the rights of creditors, devisees, and heirs to his property are subject to the restrictions and limitations contained in this title to facilitate the prompt settlement of estates.
(2) Upon the death of a person his real and personal property devolves to persons to whom it is devised by his last will or to those indicated as substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the devolution of testate estate, or in the absence of testamentary disposition, to his heirs, or to those indicated as substitutes for them in cases involving renunciation or other circumstances affecting devolution of intestate estates, subject to homestead allowance, exempt property and family allowance, rights of creditors, elective share of the surviving spouse, and administration.
Except as provided in Section 75-3-1201, to be effective to prove the transfer of any property or to nominate a personal representative, a will must be declared to be valid by an order of informal probate by the registrar, or an adjudication of probate by the court, except that a duly executed and unrevoked will which has not been probated may be admitted as evidence of a devise if both:
(1) no court proceeding concerning the succession or administration of the estate was commenced during the time period for testacy proceedings; and
(2) either the devisee or the devisee's successors and assigns possessed the property devised in accordance with the provisions of the will, or the property devised was not possessed or claimed by anyone by virtue of the decedent's title during the time period for testacy proceedings.
Except as otherwise provided in Title 75, Chapter 4, Foreign Personal Representatives - Ancillary Administration, to acquire the powers and undertake the duties and liabilities of a personal representative of a decedent, a person must be appointed by order of the court or registrar, qualify and be issued letters. Administration of an estate is commenced by the issuance of letters.
(1)
(a) No proceeding to enforce a claim against the estate of a decedent or his successors may be revived or commenced before the appointment of a personal representative.
(b) After the appointment and until distribution, all proceedings and actions to enforce a claim against the estate are governed by the procedure prescribed by this Chapter 3, Probate of Wills and Administration.
(2) After distribution a creditor whose claim has not been barred may recover from the distributees as provided in Section 75-3-1004 or from a former personal representative individually liable as provided in Section 75-3-1005.
(3) This section has no application to a proceeding by a secured creditor of the decedent to enforce his right to his security except as to any deficiency judgment which might be sought therein.
(4)
(a) For purposes of this chapter, a lien or right to recover described in Section 26B-3-1013 is not a claim.
(b) Nothing in this chapter limits the Department of Health and Human Services' right to recovery under Section 26B-3-1013.
Within 30 days after the day on which a person files an application or a petition for probate under this chapter, the court shall:
(1) if the decedent was at least 18 years old, provide notice of the application or petition to the Office of State Debt Collection created in Section 63A-3-502; and
(2) if the decedent was at least 55 years old, provide notice of the application or petition to the Office of Recovery Services created in Section 26B-9-103 for purposes of presentation or enforcement of a lien or claim under Section 26B-3-1013.
(1)
(a) Persons interested in decedents' estates may apply to the registrar for determination in the informal proceedings provided in this chapter and may petition the court for orders in formal proceedings within the court's jurisdiction, including, but not limited to those described in this chapter.
(b) The court may hear and determine formal proceedings involving administration and distribution of decedents' estates after notice to interested persons in conformity with Section 75-1-401.
(c) Persons notified are bound though less than all interested persons may have been given notice.
(2) For purposes of this title, formal proceedings involving administration and distribution of decedent's estates shall include proceedings to determine the heirs of a decedent and proceedings to construe a duly probated will of a decedent, whether or not the estate of the decedent is being, or previously has been, administered or distributed.
(1) Unless supervised administration as described in Part 5, Supervised Administration, is involved:
(a) Each proceeding before the court or registrar is independent of any other proceeding involving the same estate.
(b) Petitions for formal orders of the court may combine various requests for relief in a single proceeding if the orders sought may be finally granted without delay. Except as required for proceedings which are particularly described by other sections of this chapter, no petition is defective because it fails to embrace all matters which might then be the subject of a final order.
(c) Proceedings for probate of wills or adjudications of no will may be combined with proceedings for appointment of personal representatives.
(d) A proceeding for appointment of a personal representative is concluded by an order making or declining the appointment.
(1) An informal probate proceeding or formal testacy proceeding, other than a proceeding to probate a will previously probated at the testator's domicile, may not be commenced more than three years after the decedent's death, except:
(a) if a previous proceeding was dismissed because of doubt about the fact of the decedent's death, appropriate probate or testacy proceedings may be maintained at any time thereafter upon a finding that the decedent's death occurred prior to the initiation of the previous proceeding and the applicant or petitioner has not delayed unduly in initiating the subsequent proceeding;
(b) appropriate probate or testacy proceedings may be maintained in relation to the estate of an absent, disappeared, or missing person for whose estate a conservator has been appointed, at any time within three years after the conservator becomes able to establish the death of the protected person; or
(c) a proceeding to contest an informally probated will and to secure appointment of the person with legal priority for appointment in the event the contest is successful, may be commenced within the later of 12 months from the informal probate or three years from the decedent's death.
(2) The limitations provided in Subsection (1) do not apply to proceedings to construe probated wills or determine heirs of an intestate. In cases under Subsection (1)(a) or (b), the date on which a testacy proceeding is properly commenced shall be considered to be the date of the decedent's death for purposes of other limitations provisions of this title which relate to the date of death.
(3) If no will is probated within three years from death, the presumption of intestacy is final and the court shall upon filing a proper petition enter an order to that effect.
(4) Notwithstanding the time restriction in Subsection (1), the court has continuing jurisdiction to:
(a) determine what property was owned by the decedent at the time of death; and
(b) appoint, formally or informally, a personal representative or special administrator to administer the decedent's estate, except the following may not be presented against the estate:
(i) a homestead allowance;
(ii) exempt property;
(iii) a family allowance;
(iv) a support allowance;
(v) an elective share of the surviving spouse; and
(vi) a claim other than expenses of administration.
No statute of limitation running on a cause of action belonging to a decedent which had not been barred as of the date of his death shall apply to bar a cause of action surviving the decedent's death sooner than 12 months after death. A cause of action which, but for this section, would have been barred less than 12 months after death, is barred after 12 months unless tolled.
(1) Upon application or petition by any person interested in two or more estates, the registrar may, in an informal proceeding without a hearing, or the court may, in a formal proceeding after notice and hearing, grant letters upon these estates jointly if administration has not commenced with respect to the estate and if:
(a) all or any part of the estate of one decedent has descended from another decedent; or
(b) two or more decedents held any property during their lifetimes as tenants-in-common and if the persons entitled under the wills of these decedents or under the law of intestate succession to receive the estates of these decedents are the same.
(2) If letters are granted upon two or more estates jointly under this section, these estates shall be administered the same as if they were but one estate except that claims may be enforced only against the estate to which they relate.
(1) Venue for the first informal or formal testacy or appointment proceedings after a decedent's death is:
(a) In the county where the decedent had his domicile at the time of his death.
(b) If the decedent was not domiciled in this state, in any county where property of the decedent was located at the time of his death.
(2) Venue for all subsequent proceedings involving administration and distribution of decedent's estates is in the place where the initial proceeding occurred, unless the initial proceeding has been transferred as provided in Subsection (3) of this section or in Section 75-1-303.
(3) If the first proceeding was informal, on application of an interested person and after notice to the proponent in the first proceeding, the court, upon finding that venue is elsewhere, may transfer the proceeding and the file to the other court.
(4) For the purpose of aiding determinations concerning location of assets which may be relevant in cases involving nondomiciliaries, a debt, other than one evidenced by investment or commercial paper or other instrument in favor of a nondomiciliary, is located where the debtor resides, or if the debtor is a person other than an individual, at the place where it has its principal office. Commercial paper, investment paper, and other instruments are located where the instrument is. An interest in property held in trust is located where the trustee may be sued.
If conflicting claims as to the domicile of a decedent are made in a formal testacy or appointment proceeding commenced in this state, and in a testacy or appointment proceeding after notice pending at the same time in another state, the court of this state must stay, dismiss, or permit suitable amendment in, the proceeding here unless it is determined that the local proceeding was commenced before the proceeding elsewhere. The determination of domicile in the proceeding first commenced must be accepted as determinative in the formal testacy or appointment proceeding in this state.
(1) Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:
(a) the person with priority as determined by a probated will, including a person nominated by a power conferred in a will;
(b) the surviving spouse of the decedent who is a devisee of the decedent;
(c) other devisees of the decedent;
(d) the surviving spouse of the decedent;
(e) other heirs of the decedent;
(f) 45 days after the death of the decedent, any creditor.
(2) An objection to an appointment can be made only in formal proceedings. In case of objection the priorities stated in Subsection (1) apply except that:
(a) If the estate appears to be more than adequate to meet exemptions and costs of administration but inadequate to discharge anticipated unsecured claims, the court, on petition of creditors, may appoint any qualified person;
(b) In case of objection to appointment of a person other than one whose priority is determined by will by an heir or devisee appearing to have a substantial interest in the estate, the court may appoint a person who is acceptable to heirs and devisees whose interests in the estate appear to be worth in total more than one-half of the probable distributable value, or, in default of this accord, any suitable person.
(3) A person entitled to letters under Subsections (1)(b) through (1)(f) and a person aged 18 and over who would be entitled to letters but for his age, may nominate a qualified person to act as personal representative. Any person aged 18 and over may renounce his right to nominate or to an appointment by appropriate writing filed with the court. When two or more persons share a priority, those of them who do not renounce must concur in nominating another to act for them or in applying for appointment in informal proceedings. When two or more persons share a priority, any one or more of them who do not renounce may nominate another to act or apply for appointment in formal proceedings. Before appointing fewer than all persons who share a priority and who have not renounced or nominated another, the court must determine that those sharing the priority, although given notice of the formal proceedings, have failed to request appointment or to nominate another for appointment, and that administration is necessary.
(4) Conservators of the estates of protected persons, or if there is no conservator, any guardian, except a guardian ad litem of a minor or incapacitated person, may exercise the same right to nominate, to object to another's appointment, or to participate in determining the preference of a majority in interest of the heirs and devisees that the protected person or ward would have if qualified for appointment.
(5) Appointment of one who does not have priority under Subsection (1) or priority resulting from renunciation or nomination determined pursuant to this section may be made only in formal proceedings. Before appointing one without priority, the court must determine that those having priority, although given notice of the proceedings, have failed to request appointment or to nominate another for appointment, and that administration is necessary.
(6) No person is qualified to serve as a personal representative who is:
(a) under the age of 21;
(b) a person whom the court finds unsuitable in formal proceedings.
(7) A personal representative appointed by a court of the decedent's domicile has priority over all other persons except where the decedent's will nominates different persons to be personal representative in this state and in the state of domicile. The domiciliary personal representative may nominate another, who shall have the same priority as the domiciliary personal representative.
(8) This section governs priority for appointment of a successor personal representative but does not apply to the selection of a special administrator.
Any interested person desiring notice of any order or filing pertaining to a decedent's estate may file a demand for notice with the court at any time after the death of the decedent stating the name of the decedent, the nature of his interest in the estate, and the demandant's address or that of his attorney. The clerk shall mail a copy of the demand to the personal representative if one has been appointed. After filing of a demand, no order or filing to which the demand relates shall be made or accepted without notice as prescribed in Section 75-1-401 to the demandant or his attorney. The validity of an order which is issued or filing which is accepted without compliance with this requirement shall not be affected by the error, but the petitioner receiving the order or the person making the filing may be liable for any damage caused by the absence of notice. The requirement of notice arising from a demand under this provision may be waived in writing by the demandant and shall cease upon the termination of his interest in the estate.
(1) Applications for informal probate or informal appointment shall be directed to the registrar, and verified by the applicant to be accurate and complete to the best of the applicant's knowledge and belief as to the appropriate information required under this section.
(2) Every application for informal probate of a will or for informal appointment of a personal representative, other than a special or successor representative, shall contain the following:
(a) a statement of the interest of the applicant;
(b) the name and date of death of the decedent, the decedent's age, the county and state of the decedent's domicile at the time of death, and the names and addresses of the spouse, children, heirs, and devisees and the ages of any who are minors so far as known or ascertainable with reasonable diligence by the applicant;
(c) if the decedent was not domiciled in the state at the time of the decedent's death, a statement showing venue;
(d) a statement identifying and indicating the address of any personal representative of the decedent appointed in this state or elsewhere whose appointment has not been terminated; and
(e) a statement indicating whether the applicant has received a demand for notice or is aware of any demand for notice of any probate or appointment proceeding concerning the decedent that may have been filed in this state or elsewhere.
(3) An application for informal probate of a will shall state the following in addition to the statements required by Subsection (2):
(a) that the original of the decedent's last will:
(i) is in the possession of the court;
(ii) was filed with the court's electronic filing system and is now in the possession of the applicant or the applicant's attorney; or
(iii) is an authenticated copy of a will probated in another jurisdiction accompanies the application or was filed with the court's electronic filing system and the authenticated copy is now in the possession of the applicant or the applicant's attorney;
(b) that the applicant, to the best of the applicant's knowledge, believes the will to have been validly executed;
(c) that after the exercise of reasonable diligence, the applicant is unaware of any instrument revoking the will, and that the applicant believes that the instrument which is the subject of the application is the decedent's last will; and
(d) that the time limit for informal probate as provided in this chapter has not expired either because three years or less have passed since the decedent's death, or if more than three years have passed since the decedent's death, circumstances as described by Section 75-3-107 authorizing tardy probate have occurred.
(4) An application for informal appointment of a personal representative to administer an estate under a will shall describe the will by date of execution and state the time and place of probate or the pending application or petition for probate. The application for appointment shall adopt the statements in the application or petition for probate, state the name, address and priority for appointment of the person whose appointment is sought, state whether or not bond is required, and, if required, unless specified by the will, state the estimated value of the personal and real estate of the decedent and of the income expected from the personal and real estate during the next year.
(5) An application for informal appointment of an administrator in intestacy shall state in addition to the statements required by Subsection (2):
(a) That after the exercise of reasonable diligence, the applicant is unaware of any unrevoked testamentary instrument relating to property having a situs in this state under Section 75-1-301, or, a statement why any such instrument of which he may be aware is not being probated;
(b) The priority of the person whose appointment is sought and the names of any other persons having a prior or equal right to the appointment under Section 75-3-203;
(c) If bond is required, the estimated value of the personal and real estate of the decedent and of the income expected from the personal and real estate during the next year.
(6) An application for appointment of a personal representative to succeed a personal representative appointed under a different testacy status shall refer to the order in the most recent testacy proceeding, state the name and address of the person whose appointment is sought and of the person whose appointment will be terminated if the application is granted, and describe the priority of the applicant.
(7) An application for appointment of a personal representative to succeed a personal representative who has tendered a resignation as provided in Subsection 75-3-610(3), or whose appointment has been terminated by death or removal, shall adopt the statements in the application or petition which led to the appointment of the person being succeeded, except as specifically changed or corrected, state the name and address of the person who seeks appointment as successor, and describe the priority of the applicant.
After receipt of an application requesting informal probate of a will, the registrar, upon making the findings required by Section 75-3-303 shall issue a written statement of informal probate if at least 10 days have elapsed since the date of the notice required by Section 75-3-306, or if at least 120 hours have elapsed since the decedent's death and all persons entitled to notice under Section 75-3-306 have waived such notice in writing. Informal probate is conclusive as to all persons until superseded by an order in a formal testacy proceeding. No defect in the application or procedure relating thereto which leads to informal probate of a will renders the probate void.
(1) In an informal proceeding for original probate of a will, the registrar shall determine whether:
(a) the application is complete;
(b) the applicant has made oath or affirmation that the statements contained in the application are true to the best of his knowledge and belief;
(c) the applicant appears from the application to be an interested person;
(d) on the basis of the statements in the application, venue is proper;
(e) an original, duly executed and apparently unrevoked will was presented to the court for electronic storage and electronic filing and is now in the possession of the applicant or the applicant's attorney, or is in the registrar's possession;
(f) any notice required by Section 75-3-204 has been given and that the application is not within Section 75-3-304; and
(g) it appears from the application that the time limit for original probate has not expired.
(2) The application shall be denied if it indicates that a personal representative has been appointed in another county of this state or except as provided in Subsection (4), if it appears that this or another will of the decedent has been the subject of a previous probate order.
(3) A will which appears to have the required signatures and which contains an attestation clause showing that requirements of execution under Section 75-2-502, 75-2-503, or 75-2-506 have been met shall be probated without further proof. In other cases, the registrar may assume execution if the will appears to have been properly executed, or he may accept a sworn statement or affidavit of any person having knowledge of the circumstances of execution, whether or not the person was a witness to the will.
(4) Informal probate of a will which has been previously probated elsewhere may be granted at any time upon written application by any interested person, together with deposit of an authenticated copy of the will and of the statement probating it from the office or court where it was first probated.
(5) A will from a place which does not provide for probate of a will after death and which is not eligible for probate under Subsection (1) above may be probated in this state upon receipt by the registrar of a duly authenticated copy of the will and a duly authenticated certificate of its legal custodian that the copy filed is a true copy and that the will has become operative under the law of the other place.
Applications for informal probate which relate to one or more of a known series of testamentary instruments (other than wills and codicils), the latest of which does not expressly revoke the earlier, shall be declined.
If the registrar is not satisfied that a will is entitled to be probated in informal proceedings because of failure to meet the requirements of Sections 75-3-303 and 75-3-304 or any other reason, he may decline the application. A declination of informal probate is not an adjudication and does not preclude formal probate proceedings.
(1) The moving party must give notice as described by Section 75-1-401 of his application for informal probate:
(a) To any person demanding it pursuant to Section 75-3-204.
(b) To any personal representative of the decedent whose appointment has not been terminated.
(2) Upon receipt of an application for informal probate of a will, the clerk shall give written notice of the application to the heirs and devisees who have not waived notice. The notice shall include the name and address of the applicant, the name and location of the court in which the application was filed, the date on which the application was filed, and a statement to the effect that the requested probate will be granted after the elapse of 10 days from the date of the notice. The notice shall be delivered or sent by ordinary mail to each of the heirs and devisees at his address as shown on the application. The failure of an heir or devisee to object to the granting of the probate within the prescribed period of time shall not affect his right to petition the court to set the probate aside under Section 75-3-401.
(1) After receipt of an application for informal appointment of a personal representative other than a special administrator as provided in Section 75-3-614, the registrar, after making the findings required by Section 75-3-308, shall appoint the applicant subject to qualification and acceptance, if at least 10 days have elapsed since the date of the notice required by Section 75-3-310, or if at least 120 hours have elapsed since the decedent's death and all persons entitled to notice under Section 75-3-310 have waived this notice in writing; but if the decedent was a nonresident, the registrar shall delay the order of appointment until 30 days have elapsed since death unless the personal representative appointed at the decedent's domicile is the applicant, or unless the decedent's will directs that his estate be subject to the laws of this state.
(2) The status of personal representative and the powers and duties pertaining to the office are fully established by informal appointment. An appointment, and the office of personal representative created by it, is subject to termination as provided in Sections 75-3-608 through 75-3-612, but is not subject to retroactive vacation.
(1) In informal appointment proceedings, the registrar shall determine whether:
(a) the application for informal appointment of a personal representative is complete;
(b) the applicant has made oath or affirmation that the statements contained in the application are true to the best of his knowledge and belief;
(c) the applicant appears from the application to be an interested person;
(d) on the basis of the statements in the application, venue is proper;
(e) any will to which the requested appointment relates has been formally or informally probated; but this requirement does not apply to the appointment of a special administrator;
(f) any notice required by Section 75-3-204 has been given; and
(g) from the statements in the application, the person whose appointment is sought has priority entitling him to the appointment.
(2) Unless Section 75-3-612 controls, the application shall be denied if it indicates that a personal representative who has not filed a written statement of resignation as provided in Subsection 75-3-610(3) has been appointed in this or another county of this state, that, unless the applicant is the domiciliary personal representative or his nominee, the decedent was not domiciled in this state, and that a personal representative whose appointment has not been terminated has been appointed by a court in the state of domicile, or that other requirements of this section have not been met.
If the registrar is not satisfied that a requested informal appointment of a personal representative should be made because of failure to meet the requirements of Sections 75-3-307 and 75-3-308, or for any other reason, he may decline the application. A declination of informal appointment is not an adjudication and does not preclude appointment in formal proceedings.
(1) The moving party must give notice as described by Section 75-1-401 of his intention to seek an appointment informally:
(a) To any person demanding it pursuant to Section 75-3-204.
(b) To any person having a prior or equal right to appointment not waived in writing and filed with the court.
(2) Upon receipt of an application for an informal appointment the clerk shall give written notice of the application to the heirs and devisees who have not waived notice. The notice shall include the name and address of the person whose appointment is sought, the name and location of the court in which the application was filed, the date on which the application was filed, and a statement to the effect that the appointment will be made after the elapse of 10 days from the date of the notice. The notice shall be delivered or sent by ordinary mail to each of the heirs and devisees at his address as shown on the application. The failure of an heir or devisee to object to the appointment within the prescribed period of time shall not affect his right to petition the court to set the appointment aside under Section 75-3-414.
If an application for informal appointment indicates the existence of a possible unrevoked testamentary instrument which may relate to property subject to the laws of this state, and which is not filed for probate in this court, the registrar shall decline the application.
(1) A formal testacy proceeding is litigation to determine whether a decedent left a valid will. A formal testacy proceeding may be commenced by an interested person filing a petition as described in Subsection 75-3-402(1) in which he requests that the court, after notice and hearing, enter an order probating a will, or a petition to set aside an informal probate of a will or to prevent informal probate of a will which is the subject of a pending application, or a petition in accordance with Subsection 75-3-402(3) for an order that the decedent died intestate.
(2) A petition may seek formal probate of a will without regard to whether the same or a conflicting will has been informally probated. A formal testacy proceeding may, but need not, involve a request for appointment of a personal representative.
(3) During the pendency of a formal testacy proceeding, the registrar shall not act upon any application for informal probate of any will of the decedent or any application for informal appointment of a personal representative of the decedent.
(4) Unless a petition in a formal testacy proceeding also requests confirmation of the previous informal appointment, a previously appointed personal representative, after receipt of notice of the commencement of a formal probate proceeding, must refrain from exercising his power to make any further distribution of the estate during the pendency of the formal proceeding. A petitioner who seeks the appointment of a different personal representative in a formal proceeding also may request an order restraining the acting personal representative from exercising any of the powers of his office and requesting the appointment of a special administrator. In the absence of a request, or if the request is denied, the commencement of a formal proceeding has no effect on the powers and duties of a previously appointed personal representative other than those relating to distribution.
(1) Petitions for formal probate of a will, or for adjudication of intestacy with or without request for appointment of a personal representative, shall be directed to the court, request a judicial order after notice and hearing, and contain further statements as indicated in this section. A petition for formal probate of a will:
(a) requests an order as to the testacy of the decedent in relation to a particular instrument which may or may not have been informally probated and determining the heirs;
(b) contains the statements required for informal applications as stated in Subsection 75-3-301(2) and the statements required by Subsections 75-3-301(3)(b) and (c), and, if the petition requests appointment of a personal representative, the statements required by Subsection 75-3-301(4); and
(c) states whether the original of the last will of the decedent is in the possession of the court, accompanies the petition, or was presented to the court for electronic storage or electronic filing and is in the possession of the petitioner or the petitioner's attorney.
(2) If the original will is not in the possession of the court, has not been presented to the court for electronic storage or electronic filing, does not accompany the petition, and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition also shall state the contents of the will and indicate that it is lost, destroyed, or otherwise unavailable.
(3) A petition for adjudication of intestacy and appointment of an administrator in intestacy shall request a judicial finding and order that the decedent left no will and, determining the heirs, contain the statements required by Subsections 75-3-301(2) and 75-3-301(5) and indicate whether supervised administration is sought. A petition may request an order determining intestacy and heirs without requesting the appointment of an administrator, in which case, the statements required by Subsection 75-3-301(5)(b) may be omitted.
(1) Upon commencement of a formal testacy proceeding, the court shall fix a time and place of hearing. Notice shall be given in the manner prescribed by Section 75-1-401 by the petitioner to the persons herein enumerated and to any additional person who has filed a demand for notice under Section 75-3-204. Notice shall be given to the following persons: the surviving spouse, children, and other heirs of the decedent, the devisees and executors named in any will that is being, or has been, probated, or offered for informal or formal probate in the county, or that is known by the petitioner to have been probated, or offered for informal or formal probate elsewhere, and any personal representative of the decedent whose appointment has not been terminated. Notice may be given to other persons. In addition, the petitioner shall give notice by publication to all unknown persons and to all known persons whose addresses are unknown who have any interest in the matters being litigated.
(2) If it appears by the petition or otherwise that the fact of the death of the alleged decedent may be in doubt, or on the written demand of any interested person, a copy of the notice of the hearing on the petition shall be sent by registered mail to the alleged decedent at his last known address. The court shall direct the petitioner to report the results of, or make and report back concerning, a reasonably diligent search for the alleged decedent in any manner that may seem advisable, including any or all of the following methods:
(a) By inserting in one or more suitable periodicals a notice requesting information from any person having knowledge of the whereabouts of the alleged decedent;
(b) By notifying law enforcement officials and public welfare agencies in appropriate locations of the disappearance of the alleged decedent;
(c) By engaging the services of an investigator. The costs of any search so directed shall be paid by the petitioner if there is no administration or by the estate of the decedent in case there is administration.
Any party to a formal proceeding who opposes the probate of a will for any reason shall state in his pleadings his objections to probate of the will.
If a petition in a testacy proceeding is unopposed, the court may order probate or intestacy on the strength of the pleadings if satisfied that the conditions of Section 75-3-409 have been met or conduct a hearing in open court and require proof of the matters necessary to support the order sought. If evidence concerning execution of the will is necessary, the affidavit or testimony of one of any attesting witnesses to the instrument is sufficient. If the affidavit or testimony of an attesting witness is not available, execution of the will may be proved by other evidence or affidavit.
(1) If evidence concerning execution of an attested will which is not self-proved is necessary in contested cases, the testimony of at least one of the attesting witnesses, if within the state, competent, and able to testify, is required. Due execution of an attested or unattested will may be proved by other evidence.
(2) If the will is self-proved, compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed subject to rebuttal without the testimony of any witness upon filing the will and the acknowledgment and affidavits annexed or attached thereto, unless there is proof of fraud or forgery affecting the acknowledgment or affidavit.
(1) In contested cases, petitioners who seek to establish intestacy have the burden of establishing prima facie proof of death, venue, and heirship. Proponents of a will have the burden of establishing prima facie proof of due execution in all cases, and if they are also petitioners, prima facie proof of death and venue. Contestants of a will have the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation. Except in cases where a presumption is operable, parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof. Where one or more presumptions are operable, the ultimate burden of persuasion shall be determined in accordance with the Utah Rules of Evidence.
(2) If a will is opposed by the petition for probate of a later will revoking the former, it shall be determined first whether the later will is entitled to probate, and if a will is opposed by a petition for a declaration of intestacy, it shall be determined first whether the will is entitled to probate.
A final order of a court of another state determining testacy, the validity, or construction of a will, made in a proceeding involving notice to and an opportunity for contest by all interested persons must be accepted as determinative by the courts of this state if it includes, or is based upon, a finding that the decedent was domiciled at his death in the state where the order was made.
After the time required for any notice has expired, upon proof of notice, and after any hearing that may be necessary, if the court finds that the testator is dead, venue is proper and that the proceeding was commenced within the limitation prescribed by Section 75-3-107, it shall determine the decedent's domicile at death, his heirs, and his state of testacy. Any will found to be valid and unrevoked shall be formally probated. Termination of any previous informal appointment of a personal representative, which may be appropriate in view of the relief requested and findings, is governed by Section 75-3-612. The petition shall be dismissed or appropriate amendment allowed if the court is not satisfied that the alleged decedent is dead. A will from a place which does not provide for probate of a will after death may be proved for probate in this state by a duly authenticated certificate of its legal custodian that the copy introduced is a true copy and that the will has become effective under the law of the other place.
If two or more instruments are offered for probate before a final order is entered in a formal testacy proceeding, more than one instrument may be probated if neither expressly revokes the other or contains provisions which work a total revocation by implication. If more than one instrument is probated, the order shall indicate what provisions control in respect to the nomination of an executor, if any. The order may, but need not, indicate how any provisions of a particular instrument are affected by the other instrument. After a final order in a testacy proceeding has been entered, no petition for probate of any other instrument of the decedent may be entertained, except incident to a petition to vacate or modify a previous probate order and subject to the time limits of Section 75-3-412.
If it becomes evident in the course of a formal testacy proceeding that, though one or more instruments are entitled to be probated, the decedent's estate is or may be partially intestate, the court shall enter an order to that effect.
(1) Subject to appeal and subject to vacation as provided in this section and in Section 75-3-413, a formal testacy order under this part, including an order that the decedent left no valid will and determining heirs, is final as to all persons with respect to all issues concerning the decedent's estate that the court considered or might have considered incident to its rendition relevant to the question of whether the decedent left a valid will, and to the determination of heirs, except that:
(a) The court shall entertain a petition for modification or vacation of its order and probate of another will of the decedent if it is shown that the proponents of the later-offered will were unaware of its existence at the time of the earlier proceeding or were unaware of the earlier proceeding and were given no notice of it, except by publication.
(b) If intestacy of all or part of the estate has been ordered, the determination of heirs of the decedent may be reconsidered if it is shown that one or more persons were omitted from the determination and it is also shown that the persons were unaware of their relationship to the decedent, were unaware of his death, or were given no notice of any proceeding concerning his estate, except by publication.
(c) The order originally rendered in the testacy proceeding may be modified or vacated, if appropriate under the circumstances, by the order of probate of the later-offered will or the order redetermining heirs.
(d) The finding of the fact of death is conclusive as to the alleged decedent only if notice of the hearing on the petition in the formal testacy proceeding was sent by registered or certified mail addressed to the alleged decedent at his last known address and the court finds that a search under Subsection 75-3-403(2) was made.
(2) If the alleged decedent is not dead, even if notice was sent and search was made, he may recover estate assets in the hands of the personal representative. In addition to any remedies available to the alleged decedent by reason of any fraud or intentional wrongdoing, the alleged decedent may recover any estate or its proceeds from distributees that is in their hands, or the value of distributions received by them, to the extent that any recovery from distributees is equitable in view of all of the circumstances.
(3) A petition for vacation under either Subsections (1)(a) or (b) must be filed prior to the earlier of the following time limits:
(a) If a personal representative has been appointed for the estate, the time of entry of any order approving final distribution of the estate, or, if the estate is closed by statement, six months after the filing of the closing statement.
(b) Whether or not a personal representative has been appointed for the estate of the decedent, the time prescribed by Section 75-3-107 when it is no longer possible to initiate an original proceeding to probate a will of the decedent.
(c) Twelve months after the entry of the order sought to be vacated.
For good cause shown, an order in a formal testacy proceeding may be modified or vacated within the time allowed for appeal.
(1) A formal proceeding for adjudication regarding the priority or qualification of one who is an applicant for appointment as personal representative, or of one who previously has been appointed personal representative in informal proceedings, if an issue concerning the testacy of the decedent is or may be involved, is governed by Section 75-3-402, as well as by this section. In other cases, the petition shall contain or adopt the statements required by Subsection 75-3-301(2) and describe the question relating to priority or qualification of the personal representative which is to be resolved. If the proceeding precedes any appointment of a personal representative, it shall stay any pending informal appointment proceedings as well as any commenced thereafter. If the proceeding is commenced after appointment, the previously appointed personal representative, after receipt of notice thereof, shall refrain from exercising any power of administration except as necessary to preserve the estate or unless the court orders otherwise.
(2) After notice to interested persons, including all persons interested in the administration of the estate as successors under the applicable assumption concerning testacy, any previously appointed personal representative and any person having or claiming priority for appointment as personal representative, the court shall determine who is entitled to appointment under Section 75-3-203, make a proper appointment and, if appropriate, terminate any prior appointment found to have been improper as provided in cases of removal under Section 75-3-611.
Supervised administration is a single in rem proceeding to secure complete administration and settlement of a decedent's estate under the continuing authority of the court which extends until entry of an order approving distribution of the estate and discharging the personal representative or other order terminating the proceeding. A supervised personal representative is responsible to the court, as well as to the interested parties, and is subject to directions concerning the estate made by the court on its own motion or on the motion of any interested party. Except as otherwise provided in this part, or as otherwise ordered by the court, a supervised personal representative has the same duties and powers as a personal representative who is not supervised.
A petition for supervised administration may be filed by any interested person or by a personal representative at any time or the prayer for supervised administration may be joined with a petition in a testacy or appointment proceeding. If the testacy of the decedent and the priority and qualification of any personal representative have not been adjudicated previously, the petition for supervised administration shall include the matters required of a petition in a formal testacy proceeding and the notice requirements and procedures applicable to a formal testacy proceeding apply. If not previously adjudicated, the court shall adjudicate the testacy of the decedent and questions relating to the priority and qualifications of the personal representative in any case involving a request for supervised administration, even though the request for supervised administration may be denied. After notice to interested persons, the court shall order supervised administration of a decedent's estate:
(1) If the decedent's will directs supervised administration, it shall be ordered unless the court finds that circumstances bearing on the need for supervised administration have changed since the execution of the will and that there is no necessity for supervised administration.
(2) If the decedent's will directs unsupervised administration, supervised administration shall be ordered only upon a finding that it is necessary for protection of persons interested in the estate.
(3) In other cases if the court finds that supervised administration is necessary under the circumstances.
(1) The pendency of a proceeding for supervised administration of a decedent's estate stays action on any informal application then pending or thereafter filed.
(2) If a will has been previously probated in informal proceedings, the effect of the filing of a petition for supervised administration is as provided for formal testacy proceedings by Section 75-3-401.
(3) After he has received notice of the filing of a petition for supervised administration, a personal representative who has been appointed previously shall not exercise his power to distribute any estate. The filing of the petition does not affect his other powers and duties unless the court restricts the exercise of any of them pending full hearing on the petition.
(1) Unless restricted by the court, a supervised personal representative has, without interim orders approving exercise of a power, all powers of personal representatives under this title, but he shall not exercise his power to make any distribution of the estate without prior order of the court.
(2) Any other restriction on the power of a personal representative which may be ordered by the court must be endorsed on his letters of appointment and, unless so endorsed, is ineffective as to persons dealing in good faith with the personal representative.
Unless otherwise ordered by the court, supervised administration is terminated by order in accordance with time restrictions, notices, and contents of orders prescribed for proceedings under Section 75-3-1001. Interim orders approving or directing partial distributions or granting other relief may be issued by the court at any time during the pendency of a supervised administration on the application of the personal representative or any interested person.
Prior to receiving letters, a personal representative shall qualify by filing with the appointing court any required bond and a statement of acceptance of the duties of the office.
By accepting appointment, a personal representative submits personally to the jurisdiction of the court in any proceeding relating to the estate that may be instituted by any interested person. Notice of any proceeding shall be delivered to the personal representative, or mailed to him by ordinary first-class mail at his address as listed in the application or petition for appointment or as thereafter reported to the court and to his address as then known to the petitioner.
(1) No bond is required of a personal representative appointed in formal or informal proceedings, except:
(a) upon the appointment of a special administrator without notice having been given;
(b) when an executor or other personal representative is appointed to administer an estate under a will containing an express requirement of bond;
(c) when bond is requested prior to appointment, by an interested party; or
(d) when bond is required under Section 75-3-605. No bond is required of any personal representative who is exempted from bond under Title 7, Financial Institutions Act.
(2) A bond required pursuant to this section may be dispensed with upon a determination by the court that it is not necessary.
If bond is required and the provisions of the will or order do not specify the amount, unless stated in his application or petition, the person qualifying shall file a statement under oath with the clerk indicating his best estimate of the value of the personal and real estate of the decedent and of the income expected from the personal and real estate during the next year, and he shall execute and file a bond with the clerk, or give other suitable security, in an amount not less than the estimate reduced by the amount of secured claims against such property. The clerk shall determine that the bond is duly executed by a corporate surety, or one or more individual sureties whose performance is secured by pledge of personal property, mortgage on real property, or other adequate security. The clerk may permit the amount of the bond to be reduced by the value of assets of the estate deposited with a domestic financial institution (as defined in Section 75-6-101) in a manner that prevents their unauthorized disposition. On petition of the personal representative or another interested person the court may excuse a requirement of bond, increase or reduce the amount of the bond, release sureties, or permit the substitution of another bond with the same or different sureties.
If bond is excused as provided in Section 75-3-603, any person apparently having an interest in the estate worth in excess of $5,000, or any unsecured creditors having a claim in excess of $5,000, may make a written demand that a personal representative give bond. The demand shall be filed with the registrar and a copy mailed to the personal representative, if appointment and qualification have occurred. Thereupon, bond is required, but the requirement ceases if the person demanding bond ceases to be interested in the estate, or withdraws the demand. After he has received notice and until the filing of the bond or cessation of the requirement of bond, the personal representative shall refrain from exercising any powers of his office except as necessary to preserve the estate. Failure of the personal representative to meet a requirement of bond by giving suitable bond within 30 days after receipt of notice is cause for his removal and appointment of a successor personal representative.
(1) The following requirements and provisions apply to any bond required by this part:
(a) Bonds shall name the state as obligee for the benefit of the persons interested in the estate and shall be conditioned upon the faithful discharge by the fiduciary of all duties according to law.
(b) Unless otherwise provided by the terms of the approved bond, sureties are jointly and severally liable with the personal representative and with each other. The address of sureties shall be stated in the bond.
(c) By executing an approved bond of a personal representative, the surety consents to the jurisdiction of the probate court which issued letters to the primary obligor in any proceedings pertaining to the fiduciary duties of the personal representative and naming the surety as a party. Notice of any proceeding shall be delivered to the surety or mailed to him by registered or certified mail at his address as listed with the court where the bond is filed and to his address as then known to the petitioner.
(d) On petition of a successor personal representative, any other personal representative of the same decedent, or any interested person, a proceeding in the court may be initiated against a surety for breach of the obligation of the bond of the personal representative.
(e) The bond of the personal representative is not void after the first recovery but may be proceeded against from time to time until the whole penalty is exhausted.
(2) No action or proceeding may be commenced against the surety on any matter as to which an action or proceeding against the primary obligor is barred by adjudication or limitation.
(1) On petition of any person who appears to have an interest in the estate, the court by temporary order may restrain a personal representative from performing specified acts of administration, disbursement, or distribution, or exercise of any powers or discharge of any duties of his office, or make any other order to secure proper performance of his duty, if it appears to the court that the personal representative otherwise may take some action which would jeopardize unreasonably the interest of the applicant or of some other interested person. Persons with whom the personal representative may transact business may be made parties.
(2) The matter shall be set for hearing within 10 days unless the parties otherwise agree. Notice as the court directs shall be given to the personal representative and his attorney of record, if any, and to any other parties named defendant in the petition.
(3) Upon petition made by any guardian, conservator, protected person, ward, creditor, or other person interested in the estate as an heir, devisee or otherwise, against any person suspected of having concealed, embezzled, or smuggled, laid away or disposed of any money, goods, or chattels of the decedent or to have in his possession or subject to his knowledge, any deeds, conveyances, bonds, contracts, or other writings, or any personal estate, or any other claim or demand or any last will of the decedent, the court may cite the suspected person to appear before it and may examine and proceed with him on the charge; and if on such examination it appears that he has wrongful possession of any such items, the court may order the delivery of the same to the personal representative, guardian, or conservator.
(1) Termination of appointment of a personal representative occurs as indicated in Sections 75-3-609 through 75-3-612.
(2) Termination ends the right and power pertaining to the office of personal representative as conferred by this title or any will, except that a personal representative, at any time prior to distribution or until restrained or enjoined by court order, may perform acts necessary to protect the estate and may deliver the assets to a successor representative.
(3) Termination does not discharge a personal representative from liability for transactions or omissions occurring before termination or relieve him of the duty to preserve assets subject to his control, to account therefor, and to deliver the assets.
(4) Termination does not affect the jurisdiction of the court over the personal representative but terminates his authority to represent the estate in any pending or future proceeding.
The death of a personal representative or the appointment of a conservator for the estate of a personal representative, terminates his appointment. Until appointment and qualification of a successor or special representative to replace the deceased or protected representative, the representative of the estate of the deceased or protected personal representative, if any, has the duty to protect the estate possessed and being administered by his decedent or ward at the time his appointment terminates, has the power to perform acts necessary for protection, and shall account for and deliver the estate assets to a successor or special personal representative upon his appointment and qualification.
(1) An appointment of a personal representative terminates as provided in Section 75-3-1003, one year after the filing of a closing statement.
(2) An order closing an estate as provided in Section 75-3-1001 or 75-3-1002 terminates an appointment of a personal representative.
(3) A personal representative may resign his position by filing a written statement of resignation with the registrar after he has given at least 15 days' written notice to the persons known to be interested in the estate. If no one applies or petitions for appointment of a successor representative within the time indicated in the notice, the filed statement of resignation is ineffective as a termination of appointment and in any event is effective only upon the appointment and qualification of a successor representative and delivery of the assets to him.
(1) A person interested in the estate may petition for removal of a personal representative for cause at any time. Upon filing of the petition, the court shall fix a time and place for hearing. Notice shall be given by the petitioner to the personal representative and to other persons as the court may order. Except as otherwise ordered as provided in Section 75-3-607, after receipt of notice of removal proceedings, the personal representative shall not act except to account, correct maladministration, or preserve the estate. If removal is ordered, the court also shall direct by order the disposition of the assets remaining in the name of, or under the control of, the personal representative being removed.
(2) Cause for removal exists:
(a) When removal would be in the best interest of the estate.
(b) If it is shown that a personal representative or the person seeking his appointment intentionally misrepresented material facts in the proceedings leading to his appointment.
(c) If it is shown that the personal representative has disregarded an order of the court, has become incapable of discharging the duties of his office, has mismanaged the estate, or failed to perform any duty pertaining to the office.
(3) Unless the decedent's will directs otherwise, a personal representative appointed at the decedent's domicile, incident to securing appointment of himself or his nominee as ancillary personal representative, may obtain removal of another who was appointed personal representative in this state to administer local assets.
Except as otherwise ordered in formal proceedings, the probate of a will subsequent to the appointment of a personal representative in intestacy or under a will which is superseded by formal probate of another will, or the vacation of an informal probate of a will subsequent to the appointment of the personal representative thereunder, does not terminate the appointment of the personal representative although his powers may be reduced as provided in Section 75-3-401. Termination occurs upon appointment in informal or formal appointment proceedings of a person entitled to appointment under the later assumption concerning testacy. If no request for new appointment is made within 30 days after expiration of time for appeal from the order in formal testacy proceedings, or from the informal probate, changing the assumption concerning testacy, the previously appointed personal representative upon request may be appointed personal representative under the subsequently probated will, or as in intestacy as the case may be.
Part 3, Informal Probate and Appointment Proceedings, and Part 4, Formal Testacy and Appointment Proceedings, govern proceedings for appointment of a personal representative to succeed one whose appointment has been terminated. After appointment and qualification, a successor personal representative may be substituted in all actions and proceedings to which the former personal representative was a party; and no notice, process, or claim which was given or served upon the former personal representative need be given to or served upon the successor in order to preserve any position or right the person giving the notice or filing the claim may thereby have obtained or preserved with reference to the former personal representative. Except as otherwise ordered by the court, the successor personal representative has the powers and duties in respect to the continued administration which the former personal representative would have had if his appointment had not been terminated.
(1) A special administrator may be appointed:
(a) Informally by the registrar on the application of any interested person when necessary to protect the estate of a decedent prior to the appointment of a general personal representative or if a prior appointment has been terminated as provided in Section 75-3-609;
(b) In a formal proceeding by order of the court on the petition of any interested person and finding, after notice and hearing, that appointment is necessary to preserve the estate or to secure its proper administration including its administration in circumstances where a general personal representative cannot or should not act. If it appears to the court that an emergency exists, appointment may be ordered without notice.
(1) If a special administrator is to be appointed pending the probate of a will which is the subject of a pending application or petition for probate, the court shall prefer the appointment of the person named personal representative in the decedent's last will if available and qualified. In appropriate cases, the court may limit the powers given to the special administrator, it may appoint someone else to be special administrator, or it may otherwise act to protect the estate and interested persons.
(2) In other cases, any proper person may be appointed special administrator.
(1) A special administrator appointed by the registrar in informal proceedings pursuant to Subsection 75-3-614(1)(a) has the duty to collect and manage the assets of the estate, to preserve them, to account therefor and to deliver them to the general personal representative upon the special administrator's qualification.
(2) The special administrator has the power of a personal representative under the title necessary to perform his duties.
A special administrator appointed by order of the court in any formal proceeding has the power of a general personal representative except as limited in the appointment and duties as prescribed in the order. The appointment may be for a specified time, to perform particular acts, or on other terms as the court may direct.
The appointment of a special administrator terminates in accordance with the provisions of the order of appointment or on the appointment of a general personal representative. In other cases, the appointment of a special administrator is subject to termination as provided in Sections 75-3-608 through 75-3-611.
The duties and powers of a personal representative commence upon his appointment. The powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter. Prior to appointment, a person named executor in a will may carry out written instructions of the decedent relating to his body, funeral, and burial arrangements. A personal representative may ratify and accept acts on behalf of the estate done by others where the acts would have been proper for a personal representative.
A person to whom general letters are issued first has exclusive authority under the letters until his appointment is terminated or modified. If, through error, general letters are afterwards issued to another, the first appointed representative may recover any property of the estate in the hands of the representative subsequently appointed, but the acts of the latter done in good faith before notice of the first letters are not void for want of validity of appointment.
(1)
(a) A personal representative is a fiduciary who shall observe the standard of care applicable to trustees as described by Section 75B-2-902.
(b) A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective will and this title and as expeditiously and efficiently as is consistent with the best interests of the estate.
(c) A personal representative shall use the authority conferred upon the personal representative by this title, the terms of the will, if any, and any order in proceedings to which the personal representative is party for the best interests of successors to the estate.
(2)
(a) A personal representative may not be surcharged for acts of administration or distribution if the conduct in question was authorized at the time.
(b) Subject to other obligations of administration, an informally probated will is authority to administer and distribute the estate according to the terms of the will.
(c) An order of appointment of a personal representative, whether issued in informal or formal proceedings, is authority to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative is not aware of a pending testacy proceeding, a proceeding to vacate an order entered in an earlier testacy proceeding, a formal proceeding questioning his appointment or fitness to continue, or a supervised administration proceeding.
(d) Nothing in this section affects the duty of the personal representative to administer and distribute the estate in accordance with the rights of claimants, the surviving spouse, any minor and dependent children, and any pretermitted child of the decedent as described elsewhere in this title.
(3) Except as to proceedings which do not survive the death of the decedent, a personal representative of a decedent domiciled in this state at the decedent's death has the same standing to sue and be sued in the courts of this state and courts of any other jurisdiction as the decedent had immediately prior to death.
A personal representative shall proceed expeditiously with the settlement and distribution of a decedent's estate and except as otherwise specified or ordered in regard to a supervised personal representative, do so without adjudication, order, or direction of the court, but may invoke the jurisdiction of the court in proceedings authorized by this title to resolve questions concerning the estate or its administration.
Within three months after his appointment, a personal representative, who is not a special administrator or a successor to another representative who has previously discharged this duty, shall prepare an inventory of property owned by the decedent at the time of his death, listing it with reasonable detail, and indicating as to each listed item, its fair market value as of the date of the decedent's death, and the type and amount of any encumbrance that may exist with reference to any item. The personal representative shall send a copy of the inventory to interested persons who request it. He may also file the original of the inventory with the court.
The personal representative may employ a qualified and disinterested appraiser to assist him in ascertaining the fair market value as of the date of the decedent's death of any asset the value of which may be subject to reasonable doubt. Different persons may be employed to appraise different kinds of assets included in the estate. The names and addresses of any appraiser shall be indicated on the inventory with the item or items he appraised.
If any property not included in the original inventory comes to the knowledge of a personal representative or if the personal representative learns that the value or description indicated in the original inventory for any item is erroneous or misleading, he shall make a supplementary inventory or appraisement showing the market value as of the date of the decedent's death of the new item or the revised market value or descriptions, and the appraisers or other data relied upon, if any, and file it with the court if the original inventory was filed, or furnish copies thereof or information thereof to persons interested in the new information.
Except as otherwise provided by a decedent's will, every personal representative has a right to, and shall take possession or control of, the decedent's property, except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled thereto unless or until, in the judgment of the personal representative, possession of the property by him will be necessary for purposes of administration. The request by a personal representative for delivery of any property possessed by an heir or devisee is conclusive evidence, in any action against the heir or devisee for possession thereof, that the possession of the property by the personal representative is necessary for purposes of administration. The personal representative shall pay taxes on, and take all steps reasonably necessary for the management, protection, and preservation of, the estate in his possession. He may maintain an action to recover possession of property or to determine the title thereto.
The property liable for the payment of unsecured debts of a decedent includes all property transferred by him by any means which is in law void or voidable as against his creditors, and subject to prior liens, the right to recover this property, so far as necessary for the payment of unsecured debts of the decedent, is exclusively in the personal representative. The personal representative is not required to institute such an action unless requested by creditors who must pay or secure the cost and expenses of litigation.
(1) Until termination of his appointment a personal representative has the same power over the title to property of the estate that an absolute owner would have, in trust, however, for the benefit of the creditors and others interested in the estate.
(2) This power may be exercised without notice, hearing, or order of court, unless otherwise specifically provided by this title.
If the exercise of power concerning the estate is improper, the personal representative is liable to interested persons for damage or loss resulting from breach of his fiduciary duty to the same extent as a trustee of an express trust. The rights of purchasers and others dealing with a personal representative shall be determined as provided in Sections 75-3-712 and 75-3-713.
Any sale or encumbrance to the personal representative, his spouse, agent, or attorney, or any corporation or trust in which he has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest on the part of the personal representative, is voidable by any person interested in the estate, except one who has consented after fair disclosure, unless:
(1) The will or a contract entered into by the decedent expressly authorized the transaction; or
(2) The transaction is approved by the court after notice to interested persons.
A person who in good faith either assists a personal representative or deals with him for value is protected as if the personal representative properly exercised his power. The fact that a person knowingly deals with a personal representative does not alone require the person to inquire into the existence of a power or the propriety of its exercise. Except for restrictions on powers of supervised personal representatives which are endorsed on letters as provided in Section 75-3-504, no provision in any will or order of court purporting to limit the power of a personal representative is effective except as to persons with actual knowledge thereof. A person is not bound to see to the proper application of estate assets paid or delivered to a personal representative. The protection here expressed extends to instances in which some procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters, including a case in which the alleged decedent is found to be alive. The protection here expressed is not by substitution for that provided by comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries.
Except as restricted or otherwise provided by this title, by the will or by an order in a formal proceeding and subject to the priorities stated in Section 75-3-902, a personal representative, acting reasonably for the benefit of the interested persons, may properly:
(1) retain assets owned by the decedent pending distribution or liquidation including those in which the representative is personally interested or which are otherwise improper for trust investment;
(2) receive assets from fiduciaries, or other sources;
(3) perform, compromise, or refuse performance of the decedent's contracts that continue as obligations of the estate, as he may determine under the circumstances. In performing enforceable contracts by the decedent to convey or lease land, the personal representative, among other possible courses of action, may:
(a) execute and deliver a deed of conveyance for cash payment of all sums remaining due or the purchaser's note for the sum remaining due secured by a mortgage or deed of trust on the land; or
(b) deliver a deed in escrow with directions that the proceeds, when paid in accordance with the escrow agreement, be paid to the successors of the decedent, as designated in the escrow agreement;
(4) satisfy written charitable pledges of the decedent irrespective of whether the pledges constituted binding obligations of the decedent or were properly presented as claims, if in the judgment of the personal representative the decedent would have wanted the pledges completed under the circumstances;
(5) if funds are not needed to meet debts and expenses currently payable and are not immediately distributable, deposit or invest liquid assets of the estate, including money received from the sale of other assets, in federally insured interest-bearing accounts, readily marketable secured loan arrangements, or other prudent investments which would be reasonable for use by trustees generally;
(6) acquire or dispose of an asset, including land in this or another state, for cash or on credit, at public or private sale; and manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset;
(7) make ordinary or extraordinary repairs or alterations in buildings or other structures, demolish any improvements, or raze existing or erect new party walls or buildings;
(8) subdivide, develop, or dedicate land to public use; make or obtain the vacation of plats and adjust boundaries; adjust differences in valuation on exchange or partition by giving or receiving considerations; or dedicate easements to public use without consideration;
(9) enter for any purpose into a lease as lessor or lessee, with or without option to purchase or renew, for a term within or extending beyond the period of administration;
(10) enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;
(11) abandon property when, in the opinion of the personal representative, it is valueless, is so encumbered, or is in condition that it is of no benefit to the estate;
(12) vote stocks or other securities in person or by general or limited proxy;
(13) pay calls, assessments, and other sums chargeable or accruing against or on account of securities, unless barred by the provisions relating to claims;
(14) hold a security in the name of a nominee or in other form without disclosure of the interest of the estate but the personal representative is liable for any act of the nominee in connection with the security so held;
(15) insure the assets of the estate against damage, loss, and liability and himself against liability as to third persons;
(16) borrow money with or without security to be repaid from the estate assets or otherwise; and advance money for the protection of the estate;
(17) effect a fair and reasonable compromise with any debtor or obligor, or extend, renew, or in any manner modify the terms of any obligation owing to the estate. If the personal representative holds a mortgage, pledge, or other lien upon property of another person, he may, in lieu of foreclosure, accept a conveyance or transfer of encumbered assets from the owner thereof in satisfaction of the indebtedness secured by lien;
(18) pay taxes, assessments, compensation of the personal representative, and other expenses incident to the administration of the estate;
(19) sell or exercise stock subscription or conversion rights; and consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise;
(20) allocate items of income or expense to either estate income or principal, as permitted or provided by law;
(21) employ persons, including attorneys, auditors, investment advisers, or agents, even if they are associated with the personal representative, to advise or assist the personal representative in the performance of his administrative duties; act without independent investigation upon their recommendations; and instead of acting personally, employ one or more agents to perform any act of administration, whether or not discretionary;
(22) prosecute or defend claims or proceedings in any jurisdiction for the protection of the estate and of the personal representative in the performance of his duties;
(23) sell, mortgage, or lease any real or personal property of the estate or any interest in it for cash, credit, or for part cash and part credit, and with or without security for unpaid balances;
(24) continue any unincorporated business or venture in which the decedent was engaged at the time of his death:
(a) in the same business form for a period of not more than four months from the date of appointment of a general personal representative if continuation is a reasonable means of preserving the value of the business including good will;
(b) in the same business form for any additional period of time that may be approved by order of the court in a formal proceeding to which the persons interested in the estate are parties; or
(c) throughout the period of administration if the business is incorporated by the personal representative and if none of the probable distributees of the business who are competent adults object to its incorporation and retention in the estate;
(25) incorporate any business or venture in which the decedent was engaged at the time of his death;
(26) provide for exoneration of the personal representative from personal liability in any contract entered into on behalf of the estate;
(27) satisfy and settle claims and distribute the estate as provided in this title.
A successor personal representative has the same power and duty as the original personal representative to complete the administration and distribution of the estate, as expeditiously as possible, but he shall not exercise any power expressly made personal to the executor named in the will.
If two or more persons are appointed co-representatives and unless the will provides otherwise, the concurrence of a majority is required on all acts connected with the administration and distribution of the estate. This restriction does not apply when any co-representative receives and receipts for property due the estate, when the concurrence of all cannot readily be obtained in the time reasonably available for emergency action necessary to preserve the estate, or when a co-representative has been delegated to act for the others. Persons dealing with a co-representative if actually unaware that another has been appointed to serve with him or if advised by the personal representative with whom they deal that he has authority to act alone for any of the reasons mentioned herein, are as fully protected as if the person with whom they dealt had been the sole personal representative.
Unless the terms of the will otherwise provide, every power exercisable by personal co-representatives may be exercised by the one or more remaining after the appointment of one or more is terminated, and if one of two or more nominated as co-executors is not appointed, those appointed may exercise all the powers incident to the office.
(1) A personal representative and an attorney are entitled to reasonable compensation for their services. If a petition is filed which either directly or indirectly seeks approval of the personal representative's compensation or the attorney's compensation and if no objection is filed by an interested person to the compensation requested, reasonable compensation shall be the compensation sought in the petition. When an interested person objects to the personal representative's compensation, the court shall determine reasonable compensation for the personal representative based on the quality, quantity, and value of the services rendered to the estate and the circumstances under which those services were rendered, including the practice for other fiduciaries who are in similar circumstances to the personal representative in question. When an interested person objects to the attorney's compensation, the court shall determine reasonable compensation for the attorney.
(2) When a petition seeks approval of or objects to a personal representative's compensation or an attorney's compensation, at least 10 days before the time set for the hearing of the petition, the petitioner or the petitioner's attorney shall send a copy of the petition to all interested persons either by certified, registered, or first class mail or by hand-delivery.
(3) If a will provides for compensation of the personal representative and there is no contract with the decedent regarding compensation, the personal representative may renounce the provision before qualifying and be entitled to reasonable compensation. A personal representative also may renounce his right to all or any part of the compensation. A written renunciation of fee may be filed with the court.
(1)
(a) In a judicial proceeding involving the administration of an estate, the court may, as justice and equity may require, award costs and expenses, including reasonable attorney fees, to any party to be paid by another party or from the estate that is the subject of the controversy.
(b) This Subsection (1) does not apply to the Office of the Attorney General when the Office of the Attorney General is a party to a judicial proceeding involving the administration of an estate to protect a public or charitable interest.
(2) If any personal representative or person nominated as personal representative defends or prosecutes any proceeding in good faith, whether successful or not, the personal representative is entitled to receive from the estate the necessary expenses and disbursements, including reasonable attorney fees incurred. This Subsection (2) expressly applies in a will contest to any person nominated as a personal representative in a testamentary instrument submitted in good faith.
After notice to all interested persons, on petition of an interested person or on appropriate motion if administration is supervised, the propriety of employment of any person by a personal representative, including any attorney, auditor, investment advisor, or other specialized agent or assistant, the reasonableness of the compensation of any person so employed, or the reasonableness of the compensation determined by the personal representative for the personal representative's own services, may be reviewed by the court. Any person who has received excessive compensation from an estate for services rendered may be ordered to make appropriate refunds.
(1)
(a) A personal representative, upon appointment, may publish a notice to creditors announcing the personal representative's appointment and address and notifying creditors of the estate to present their claims within three months after the date of the first publication of the notice or be forever barred.
(b) The notice described in Subsection (1)(a) shall be published:
(i) once a week for three successive weeks in a newspaper of general circulation in the county; and
(ii) in accordance with Section 45-1-101 for three weeks.
(2) A personal representative may give written notice by mail or other delivery to any creditor, notifying the creditor to present his claim within 90 days from the published notice if given as provided in Subsection (1) above or within 60 days from the mailing or other delivery of the notice, whichever is later, or be forever barred. Written notice shall be the notice described in Subsection (1) above or a similar notice.
(3) The personal representative shall not be liable to any creditor or to any successor of the decedent for giving or failing to give notice under this section.
(4) If the estate is being administered in accordance with Section 75-3-1201, a notice to creditors may be published in an affidavit in accordance with this section by the person claiming to be the successor or the decedent.
Unless an estate is insolvent the personal representative, with the consent of all successors whose interests would be affected, may waive any defense of limitations available to the estate. If the defense is not waived, no claim which was barred by any statute of limitations at the time of the decedent's death shall be allowed or paid. The running of any statute of limitations measured from some other event than death and advertisement for claims against a decedent is suspended during the three months following the decedent's death but resumes thereafter as to claims not barred pursuant to the sections which follow. For purposes of any statute of limitations, the proper presentation of a claim under Section 75-3-804 is equivalent to commencement of a proceeding on the claim.
(1) All claims against a decedent's estate which arose before the death of the decedent, including claims of the state and any subdivision of it, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, if not barred earlier by other statute of limitations, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented within the earlier of the following dates:
(a) one year after the decedent's death; or
(b) within the time provided by Subsection 75-3-801(2) for creditors who are given actual notice, and where notice is published, within the time provided in Subsection 75-3-801(1) for all claims barred by publication.
(2) In all events, claims barred by the nonclaim statute at the decedent's domicile are also barred in this state.
(3) All claims against a decedent's estate which arise at or after the death of the decedent, including claims of the state and any of its subdivisions, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented as follows:
(a) a claim based on a contract with the personal representative within three months after performance by the personal representative is due; or
(b) any other claim within the later of three months after it arises, or the time specified in Subsection (1)(a).
(4) Nothing in this section affects or prevents:
(a) any proceeding to enforce any mortgage, pledge, or other lien upon property of the estate;
(b) to the limits of the insurance protection only, any proceeding to establish liability of the decedent or the personal representative for which the decedent or the personal representative is protected by liability insurance;
(c) collection of compensation for services rendered and reimbursement for expenses advanced by the personal representative or by the attorney or accountant for the personal representative of the estate;
(d) medical assistance recovery under Title 26B, Chapter 3, Part 10, Medical Benefits Recovery; or
(e) any proceeding to enforce or collect a criminal account receivable, civil judgment of restitution, or civil account receivable, as those terms are defined in Section 77-32b-102.
(5) If a personal representative has not been timely appointed in accordance with this chapter, one may be appointed for the limited purposes of Subsection (4)(b) for any claim timely brought against the decedent.
(1) Claims against a decedent's estate may be presented as follows:
(a) The claimant may deliver or mail to the personal representative, or the personal representative's attorney of record, a written statement of the claim indicating its basis, the name and address of the claimant, and the amount claimed, or may file a written statement of the claim, in the form prescribed by rule, with the clerk of the court. The claim is deemed presented on either the receipt of the written statement of claim by the personal representative or the personal representative's attorney of record, or the filing of the claim with the court, whichever occurs first. If a claim is not yet due, the date when it will become due shall be stated. If the claim is contingent or unliquidated, the nature of the uncertainty shall be stated. If the claim is secured, the security shall be described. Failure to describe correctly the security, the nature of any uncertainty, and the due date of a claim not yet due does not invalidate the presentation made.
(b) The claimant may commence a proceeding against the personal representative in any court where the personal representative may be subjected to jurisdiction to obtain payment of the claim against the estate, but the commencement of the proceeding must occur within the time limited for presenting the claim. No presentation of claim is required in regard to matters claimed in proceedings against the decedent which were pending at the time of the decedent's death.
(2) If a claim is presented under Subsection (1)(a), no proceeding thereon may be commenced more than 60 days after the personal representative has mailed a notice of disallowance; but, in the case of a claim which is not presently due or which is contingent or unliquidated, the personal representative may consent to an extension of the 60-day period, or to avoid injustice the court, on petition, may order an extension of the 60-day period, but in no event may the extension run beyond the applicable statute of limitations.
(1) If the applicable assets of the estate are insufficient to pay all claims in full, the personal representative shall make payment in the following order:
(a) reasonable funeral expenses;
(b) costs and expenses of administration;
(c) debts and taxes with preference under federal law;
(d) reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation of persons attending the decedent, and medical assistance if Section 26B-3-1013 applies;
(e) debts and taxes with preference under other laws of this state; and
(f) all other claims.
(2) No preference shall be given in the payment of any claim over any other claim of the same class, and a claim due and payable shall not be entitled to a preference over claims not due.
(1) As to claims presented in the manner described in Section 75-3-804 and within the time limit prescribed in Section 75-3-803, the personal representative may mail a notice to any claimant stating that the claim has been allowed or disallowed. If, after allowing or disallowing a claim, the personal representative changes the decision concerning the claim, the personal representative shall notify the claimant. The personal representative may not change a disallowance of a claim after the time for the claimant to file a petition for allowance or to commence a proceeding on the claim has expired and the claim has been barred. If the notice of disallowance warns the claimant of the impending bar, a claim which is disallowed in whole or in part by the personal representative is barred so far as not allowed, unless the claimant seeks a court ordered allowance by filing a petition for allowance in the court or by commencing a proceeding against the personal representative not later than 60 days after the mailing of the notice of disallowance or partial allowance. If the personal representative fails to mail notice to a claimant of action on the claim within 60 days after the time for original presentation of the claim has expired, this failure has the effect of a notice of allowance.
(2) Upon the petition of the personal representative or a claimant in a proceeding for this purpose, the court may order any claim presented to the personal representative or filed with the clerk of the court in a timely manner and not barred by Subsection (1) to be allowed in whole or in part. Notice of this proceeding shall be given to the claimant, the personal representative, and those other persons interested in the estate as the court may direct by order at the time the proceeding is commenced.
(3) A judgment in a proceeding in another court against a personal representative to enforce a claim against a decedent's estate is a court ordered allowance of the claim.
(4) Unless otherwise provided in any judgment in another court entered against the personal representative, allowed claims bear interest at the legal rate for the period commencing six months after the decedent's date of death unless based on a contract making a provision for interest, in which case they bear interest in accordance with that provision.
(1) Upon the expiration of the earliest of the time limitations provided in Section 75-3-803 for the presentation of claims, the personal representative shall proceed to pay the claims allowed against the estate in the order of priority prescribed, after making provision for homestead, family, and support allowances, for claims already presented which have not yet been allowed or whose allowance has been appealed, and for unbarred claims which may yet be presented, including costs and expenses of administration. By petition to the court in a proceeding for the purpose, or by appropriate motion if the administration is supervised, a claimant whose claim has been allowed but not paid as provided in this section may secure an order directing the personal representative to pay the claim to the extent that funds of the estate are available for the payment.
(2) The personal representative at any time may pay any just claim that has not been barred, with or without formal presentation, but he is personally liable to any other claimant whose claim is allowed and who is injured by such payment if:
(a) the payment was made before the expiration of the time limit stated in Subsection (1) and the personal representative failed to require the payee to give adequate security for the refund of any of the payment necessary to pay other claimants; or
(b) the payment was made, due to the negligence or willful fault of the personal representative, in such manner as to deprive the injured claimant of his priority.
(1) Unless otherwise provided in the contract, a personal representative is not individually liable on a contract properly entered into in his fiduciary capacity in the course of administration of the estate unless he fails to reveal his representative capacity and identify the estate in the contract.
(2) A personal representative is individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if he is personally at fault.
(3) Claims based on contracts entered into by a personal representative in his fiduciary capacity, on obligations arising from ownership or control of the estate, or on torts committed in the course of estate administration may be asserted against the estate by proceeding against the personal representative in his fiduciary capacity, whether or not the personal representative is individually liable therefor.
(4) Issues of liability as between the estate and the personal representative individually may be determined in a proceeding for accounting, surcharge, or indemnification or other appropriate proceeding.
Payment of a secured claim is upon the basis of the amount allowed if the creditor surrenders his security; but otherwise payment is upon the basis of one of the following:
(1) If the creditor exhausts his security before receiving payment (unless precluded by other law) upon the amount of the claim allowed less the fair value of the security; or
(2) If the creditor does not have the right to exhaust his security or has not done so, upon the amount of the claim allowed less the value of the security determined by converting it into money according to the terms of the agreement pursuant to which the security was delivered to the creditor, or by the creditor and personal representative by agreement, arbitration, compromise, or litigation.
(1) If a claim which will become due at a future time or a contingent or unliquidated claim becomes due or certain before the distribution of the estate, and if the claim has been allowed or established by a proceeding, it is paid in the same manner as presently due and absolute claims of the same class.
(2) In other cases the personal representative, or, on petition of the personal representative or the claimant in a special proceeding for the purpose, the court may provide for payment as follows:
(a) If the claimant consents, he may be paid the present or agreed value of the claim, taking any uncertainty into account;
(b) Arrangement for future payment, or possible payment, on the happening of the contingency or on liquidation may be made by creating a trust, giving a mortgage, obtaining a bond or security from a distributee, or otherwise.
In allowing a claim the personal representative may deduct any counterclaim which the estate has against the claimant. In determining a claim against an estate a court shall reduce the amount allowed by the amount of any counterclaims and, if the counterclaims exceed the claim, render a judgment against the claimant in the amount of the excess. A counterclaim, liquidated or unliquidated, may arise from a transaction other than that upon which the claim is based. A counterclaim may give rise to relief exceeding in amount or different in kind from that sought in the claim.
(1) Except as provided in Subsection (2), no execution may issue upon nor may any levy be made against any property of the estate under any judgment against a decedent or a personal representative.
(2) This section does not prevent:
(a) the enforcement of mortgages, pledges, or liens upon real or personal property in an appropriate proceeding; or
(b) the collection of a criminal account receivable, civil judgment of restitution, or civil account receivable, as those terms are defined in Section 77-32b-102.
When a claim against the estate has been presented in any manner, the personal representative may, if it appears for the best interest of the estate, compromise the claim, whether due or not due, absolute or contingent, liquidated or unliquidated.
If any assets of the estate are encumbered by mortgage, pledge, lien, or other security interest, the personal representative may pay the encumbrance or any part thereof, renew or extend any obligation secured by the encumbrance, or convey or transfer the assets to the creditor in satisfaction of his lien, in whole or in part, whether or not the holder of the encumbrance has presented a claim, if it appears to be for the best interest of the estate. Payment of an encumbrance does not increase the share of the distributee entitled to the encumbered assets unless the distributee is entitled to exoneration.
(1) All assets of estates being administered in this state are subject to all claims, allowances, and charges existing or established against the personal representative wherever appointed.
(2) If the estate either in this state or as a whole is insufficient to cover all family exemptions and allowances determined by the law of the decedent's domicile, prior charges and claims, after satisfaction of the exemptions, allowances and charges, each claimant whose claim has been allowed either in this state or elsewhere in administrations of which the personal representative is aware, is entitled to receive payment of an equal proportion of his claim. If a preference or security in regard to a claim is allowed in another jurisdiction but not in this state, the creditor so benefited is to receive dividends from local assets only upon the balance of his claim after deducting the amount of the benefit.
(3) In case the family exemptions and allowances, prior charges and claims of the entire estate exceed the total value of the portions of the estate being administered separately and this state is not the state of the decedent's last domicile, the claims allowed in this state shall be paid their proportion if local assets are adequate for the purpose, and the balance of local assets shall be transferred to the domiciliary personal representative. If local assets are not sufficient to pay all claims allowed in this state the amount to which they are entitled, local assets shall be marshalled so that each claim allowed in this state is paid its proportion as far as possible, after taking into account all dividends on claims allowed in this state from assets in other jurisdictions.
(1) The estate of a nonresident decedent being administered by a personal representative appointed in this state shall, if there is a personal representative of the decedent's domicile willing to receive it, be distributed to the domiciliary personal representative for the benefit of the successors of the decedent unless:
(a) By virtue of the decedent's will, if any, and applicable choice of law rules, the successors are identified pursuant to the local law of this state without reference to the local law of the decedent's domicile;
(b) The personal representative of this state, after reasonable inquiry, is unaware of the existence or identity of a domiciliary personal representative; or
(c) The court orders otherwise in a proceeding for a closing order under Section 75-3-1001 or incident to the closing of a supervised administration.
(2) In other cases, distribution of the estate of a decedent shall be made in accordance with the other parts of this chapter.
In the absence of administration, the heirs and devisees are entitled to the estate in accordance with the terms of a probated will or the laws of intestate succession. Devisees may establish title by the probated will to devised property. Persons entitled to property by homestead allowance, exemption, or intestacy may establish title thereto by proof of the decedent's ownership, his death, and their relationship to the decedent. Successors take subject to all charges incident to administration, including the claims of creditors and allowances of surviving spouse and dependent children, and subject to the rights of others resulting from abatement, retainer, advancement, and ademption.
(1) Except as provided in Subsection (3) and except as provided in connection with the share of the surviving spouse who elects to take an elective share, shares of distributees abate, without any preference or priority as between real and personal property, in the following order:
(a) property not disposed of by the will;
(b) residuary devises;
(c) general devises;
(d) specific devises.
(2) For purposes of abatement, a general devise charged on any specific property or fund is a specific devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.
(3) If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in Subsection (1), the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.
(4) If the subject of a preferred devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.
The amount of a noncontingent indebtedness of a successor to the estate if due, or its present value if not due, shall be offset against the successor's interest; but the successor has the benefit of any defense which would be available to him in a direct proceeding for recovery of the debt.
General pecuniary devises bear interest at the legal rate beginning one year after the first appointment of a personal representative until payment, unless a contrary intent is indicated by the will.
A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.
(1) Unless a contrary intention is indicated by the will, the distributable assets of a decedent's estate shall be distributed in kind to the extent possible through application of the following provisions:
(a) A specific devisee is entitled to distribution of the thing devised to him, and a spouse or child who has selected particular assets of an estate as provided in Section 75-2-403 shall receive the items selected.
(b) Any homestead or family allowance or devise payable in money may be satisfied by value in kind provided:
(i) the person entitled to the payment has not demanded payment in cash;
(ii) the property distributed in kind is valued at fair market value as of the date of its distribution; and
(iii) no residuary devisee has requested that the asset in question remain a part of the residue of the estate.
(c) For the purpose of valuation under Subsection (1)(b) above, securities regularly traded on recognized exchanges, if distributed in kind, are valued at the price for the last sale of like securities traded on the business day prior to distribution, or if there was no sale on that day, at the median between amounts bid and offered at the close of that day. Assets consisting of sums owed the decedent or the estate by solvent debtors as to which there is no known dispute or defense are valued at the sum due with accrued interest or discounted to the date of distribution. For assets which do not have readily ascertainable values, a valuation as of a date not more than 30 days prior to the date of distribution, if otherwise reasonable, controls. For purposes of facilitating distribution, the personal representative may ascertain the value of the assets as of the time of the proposed distribution in any reasonable way, including the employment of qualified appraisers, even if the assets may have been previously appraised.
(d) The residuary estate shall be distributed in kind if there is no objection to the proposed distribution and it is practicable to distribute undivided interests. In other cases, residuary property may be converted into cash for distribution.
(2) After the probable charges against the estate are known, the personal representative may mail or deliver a proposal for distribution to all persons who have a right to object to the proposed distribution. The right of any distributee to object to the proposed distribution on the basis of the kind or value of asset he is to receive, if not waived earlier in writing, terminates if he fails to object in writing received by the personal representative within 30 days after mailing or delivery of the proposal.
If distribution in kind is made, the personal representative shall execute an instrument or deed of distribution assigning, transferring, or releasing the assets to the distributee as evidence of the distributee's title to the property.
Proof that a distributee has received an instrument or deed of distribution of assets in kind, or payment in distribution, from a personal representative, is conclusive evidence that the distributee has succeeded to the interest of the estate in the distributed assets, as against all persons interested in the estate, except that the personal representative may recover the assets or their value if the distribution was improper.
Unless the distribution or payment no longer can be questioned because of adjudication, estoppel, or limitation, a distributee of property improperly distributed or paid, or a claimant who was improperly paid, is liable to return the property improperly received and its income since distribution if he has the property. If he does not have the property, then he is liable to return the value as of the date of disposition of the property improperly received and its income and gain received by him.
If property distributed in kind or a security interest therein is acquired for value in good faith and without notice of any adverse claim by a purchaser from or lender to a distributee who has received an instrument or deed of distribution from the personal representative, or is so acquired by a purchaser from or lender to a transferee from the distributee, the purchaser or lender takes title free of rights of any interested person in the estate and incurs no personal liability to the estate, or to any interested person, whether or not the distribution was proper or supported by court order or the authority of the personal representative was terminated before execution of the instrument or deed. This section protects a purchaser from or lender to a distributee who, as personal representative, has executed a deed of distribution to himself, as well as a purchaser from or lender to any other distributee or his transferee. To be protected under this section, a purchaser or lender need not inquire whether a personal representative acted properly in making the distribution in kind, even if the personal representative and the distributee are the same person, or whether the authority of the personal representative had terminated before the distribution.
When two or more heirs or devisees are entitled to distribution of undivided interests in any real or personal property of the estate, the personal representative or one or more of the heirs or devisees may petition the court, prior to the formal or informal closing of the estate, to make partition. After notice to the interested heirs or devisees, the court shall partition the property in the same manner as provided by the law for civil actions of partition. The court may direct the personal representative to sell any property which cannot be partitioned without prejudice to the owners and which cannot conveniently be allotted to any one party.
Subject to the rights of creditors and taxing authorities, competent successors may agree among themselves to alter the interests, shares, or amounts to which they are entitled under the will of the decedent, or under the laws of intestacy, in any way that they provide in a written contract executed by all who are affected by its provisions. The personal representative shall abide by the terms of the agreement, subject to his obligation to administer the estate for the benefit of creditors, to pay all taxes and costs of administration, and to carry out the responsibilities of his office for the benefit of any successors of the decedent who are not parties. Personal representatives of decedents' estates are not required to see to the performance of trusts if the trustee thereof is another person who is willing to accept the trust. Accordingly, trustees of a testamentary trust are successors for the purposes of this section. Nothing contained in this section relieves trustees of any duties owed to beneficiaries of trusts.
(1) Before distributing to a trustee, the personal representative may require that the trust be registered if the state in which the trust is to be administered provides for registration and that the trustee inform the qualified beneficiaries as described in Section 75B-2-811.
(2) If the trust instrument does not excuse the trustee from giving bond, the personal representative may:
(a) petition the appropriate court to require that the trustee post bond if the trustee apprehends that distribution might jeopardize the interests of persons who are not able to protect themselves; and
(b) withhold distribution until the court has acted.
(3) No inference of negligence on the part of the personal representative shall be drawn from the personal representative's failure to exercise the authority conferred by Subsections (1) and (2).
(1) If an heir, devisee or claimant cannot be found, the personal representative shall distribute the share of the missing person to his conservator, if any, but otherwise to the state treasurer for the benefit of the state school fund.
(2) The money received by the state treasurer shall be paid to the person entitled on proof of his right to it or, if the state treasurer refuses or fails to pay, the person may petition the court which appointed the personal representative, whereupon the court upon notice to the state treasurer may determine the person entitled to the money and order the treasurer to pay it to him. No interest is allowed thereon, and the heir, devisee, or claimant shall pay all costs and expenses incident to the proceeding.
A personal representative may discharge the personal representative's obligation to distribute to any person under legal disability by distributing to the person's conservator, or any other person authorized by this title or otherwise to give a valid receipt and discharge for the distribution.
(1) As used in this section:
(a) "Estate" means the gross estate of a decedent as determined for the purpose of federal estate tax and the estate tax payable to this state;
(b) "Fiduciary" means personal representative, executor, administrator of any description, or trustee;
(c) "Person" means any individual, partnership, association, joint stock company, corporation, government, political subdivision, governmental agency, or local governmental agency;
(d) "Person interested in the estate" means any person, including a personal representative, conservator, guardian, or trustee entitled to receive, or who has received, from a decedent while alive or by reason of the death of a decedent any property or interest in property included in the decedent's taxable estate;
(e) "State" means any state, territory, or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico; and
(f) "Tax" means the federal estate tax and the inheritance, estate, or other death tax payable to this state and interest and penalties imposed in addition to the tax but specifically does not include the federal generation skipping transfer tax.
(2)
(a) Unless otherwise provided in the will or other dispositive instrument, the tax shall be apportioned among all persons interested in the estate.
(b) The apportionment shall be made in the proportion that the value of the interest of each person interested in the estate bears to the total value of the interests of all persons interested in the estate.
(c) The values used in determining the tax shall be used for that purpose.
(d) If the decedent's will or other dispositive instrument directs a method of apportionment of tax different from the method described in this title, the method described in the will or other dispositive instrument controls.
(3)
(a) The court having jurisdiction over the administration of the estate of a decedent shall determine the apportionment of the tax. If there are no probate proceedings, the court of the county in which the decedent was domiciled at death shall determine the apportionment of the tax upon the petition of the person required to pay the tax.
(b) If the court finds that it is inequitable to apportion interest and penalties in the manner provided in Subsection (2), because of special circumstances, it may direct the apportionment in the manner it finds equitable.
(c)
(i) The expenses reasonably incurred by any fiduciary and by other persons interested in the estate concerning the determination of the amount and apportionment of the tax shall be apportioned as provided in Subsection (2) and charged and collected as a part of the tax apportioned.
(ii) If the court finds it is inequitable to apportion the expenses as provided in Subsection (2), it may direct the apportionment equitably.
(d) If the court finds that the assessment of penalties and interest assessed in relation to the tax is due to delay caused by the negligence of the fiduciary, the court may charge the fiduciary with the amount of the assessed penalties and interest.
(e) In any suit or judicial proceeding to recover from any person interested in the estate the amount of the tax apportioned to the person in accordance with this title, the determination of the court in this regard is prima facie correct.
(4)
(a)
(i) The fiduciary or other person required to pay the tax may withhold from any property of the decedent in his possession and distributable to any person interested in the estate, the amount of tax attributable to his interest.
(ii) If the property in possession of the fiduciary or other person required to pay the tax and distributable to any person interested in the estate is insufficient to satisfy the proportionate amount of the tax determined to be due from the person, the fiduciary or other person required to pay the tax may recover the deficiency from the person interested in the estate.
(iii) If the property is not in the possession of the fiduciary or other person required to pay the tax, the fiduciary or the other person required to pay the tax may recover from any person interested in the estate the amount of the tax apportioned to the person in accordance with this section.
(b) If property held by the fiduciary or other person required to pay the tax is distributed prior to final apportionment of the tax, the fiduciary or other person may require the distributee to provide a bond or other security for the apportionment liability in the form and amount prescribed by the fiduciary, with the approval of the court having jurisdiction of the administration of the estate.
(5)
(a) In making an apportionment, allowances shall be made for any exemptions granted, any classification made of persons interested in the estate, and any deductions and credits allowed by the law imposing the tax.
(b)
(i) Any exemption or deduction allowed by reason of the relationship of any person to the decedent or by reason of the purposes of the gift inures to the benefit of the person bearing that relationship or receiving the gift.
(ii) When an interest is subject to a prior present interest which is not allowable as a deduction, the tax apportionable against the present interest shall be paid from principal.
(c) Any deduction for property previously taxed and any credit for gift taxes or death taxes of a foreign country paid by the decedent or his estate inures to the proportionate benefit of all persons liable to apportionment.
(d) Any credit for inheritance, succession, or estate taxes or taxes of this nature in respect to property or interests includable in the estate inures to the benefit of the persons or interests chargeable with the payment of the tax to the extent that, or in proportion as, the credit reduces the tax.
(e)
(i) To the extent that property passing to or in trust for a surviving spouse or child or any charitable, public, or similar gift or bequest does not constitute an allowable deduction for purposes of the tax solely by reason of an inheritance tax or other death tax imposed upon and deductible from the property, the property shall not be included in the computation provided for in Subsection (2), and to that extent no apportionment shall be made against the property.
(ii) This does not apply in any instance where the result will be to deprive the estate of a deduction otherwise allowable under Section 2053(d), Internal Revenue Code, relating to deduction for state death taxes on transfers for public, charitable, or religious uses.
(6)
(a) No interest in income and no estate for years or for life or other temporary interest in any property or fund is subject to apportionment as between the temporary interest and the remainder.
(b) The tax on the temporary interest and the tax, if any, on the remainder is chargeable against the corpus of the property or funds subject to the temporary interest and remainder.
(7)
(a) Neither the fiduciary nor other person required to pay the tax is under any duty to institute any suit or proceeding to recover from any person interested in the estate the amount of the tax apportioned to the person until the expiration of the three months next following final determination of the tax.
(b) A fiduciary or other person required to pay the tax who institutes the suit or proceeding within a reasonable time after the three months' period is not subject to any liability or surcharge because any portion of the tax apportioned to any person interested in the estate was collectible at a time following the death of the decedent but thereafter became uncollectible. If the fiduciary or other person required to pay the tax cannot collect from any person interested in the estate the amount of the tax apportioned to the person, the amount not recoverable shall be paid from the residuary estate.
(c) To the extent that the residuary estate is not adequate, the balance shall be equitably apportioned among the other persons interested in the estate who are subject to apportionment.
(8)
(a) Subject to this section, a fiduciary acting in another state or a person required to pay the tax who is domiciled in another state may institute an action in the courts of this state and may recover a proportionate amount of the federal estate tax, of an estate tax payable to another state, or of a death duty due by a decedent's estate to another state, from a person interested in the estate who is either domiciled in this state or who owns property in this state subject to attachment or execution.
(b) For the purposes of the action the determination of apportionment by the court having jurisdiction of the administration of the decedent's estate in the other state is prima facie correct.
(c) The provisions of this section apply only if the state in which the determination of apportionment was made affords a substantially similar remedy.
(9) This section does not apply to the apportionment of expenses incurred in connection with the determination of the amount and apportionment of the taxes due on account of the death of decedents dying prior to July 1, 1983.
(1) A will or trust of a decedent who dies after December 31, 2009 and before January 1, 2011, that contains a formula referring to the "unified credit," "estate tax exemption," "applicable exemption amount," "generation-skipping transfer tax exemption" or "GST exemption," or that measures a share of an estate or trust based on the amount that can pass free of federal estate or generation-skipping transfer taxes, or that is otherwise based on a similar provision of federal estate tax or generation-skipping transfer tax law, shall be considered to refer to the federal estate and generation-skipping transfer tax laws as they applied with respect to estates of decedents dying on December 31, 2009.
(a) This provision may not apply with respect to a will or trust executed or amended after December 31, 2009, or that manifests an intent that a contrary rule shall apply if the decedent dies on a date on which there is no then-applicable federal estate or generation-skipping transfer tax.
(b) The reference to January 1, 2011 in Subsection (1) shall, if the federal estate and generation-skipping transfer tax becomes effective before that date, refer instead to the first date on which the tax becomes legally effective.
(2) A proceeding to determine whether the decedent intended that the references under Subsection (1) be construed with respect to the law as it existed after December 31, 2009, shall be filed within 12 months of the date of death of the testator or grantor. It may be filed by the personal representative or any affected beneficiary under the will or other instrument.
(1) As used in this section:
(a) "Interest" has the same meaning as "estate, trust, or other beneficial interest" as defined in Section 75A-2-211.
(b) "Purchaser of interest" means a person who:
(i) purchases, by means of a written agreement, an interest from a beneficiary in exchange for consideration; and
(ii) regularly engages in, either directly or indirectly, the purchase of beneficial interests in estates in exchange for consideration.
(2) The requirements of this section apply to a distribution from a decedent's estate that is made to a purchaser of interest.
(3) This section does not apply to:
(a) a transferee who is a beneficiary of the estate;
(b) a person who has a claim to distribution from the estate under another instrument or by intestate succession;
(c) a transferee who is the registered domestic partner of the beneficiary, or who is related by blood, marriage, or adoption to the beneficiary or the decedent;
(d) a transaction made under Title 70C, Utah Consumer Credit Code; or
(e) a transferee who is engaged in the business of locating missing or unknown heirs and who acquires an interest from a beneficiary solely in exchange for providing information or services associated with locating the heir or beneficiary.
(4)
(a) A written agreement under this section shall:
(i) be printed in 10-point type or larger, including any accompanying documents provided by the purchaser of interest in relation to the written agreement;
(ii) state the amount of consideration paid to the beneficiary;
(iii) provide a description of the transferred interest; and
(iv) if the written agreement so provides, state the amount by which the transferee for value would have its distribution reduced if the beneficial interest assigned is distributed prior to a specified date.
(b) A written agreement under this section may not contain any of the following provisions, and if any such provision is included, the prohibited provision is null and void:
(i) a provision that holds the purchaser of interest harmless, other than for liability arising out of fraud by the beneficiary;
(ii) a provision granting the purchaser of interest agency powers to represent the beneficiary's interest in the decedent's estate beyond the interest to be transferred;
(iii) a provision requiring the beneficiary to pay the purchaser of interest for services that are not related to the written agreement or for services other than the transfer of interest under the written agreement; or
(iv) a provision permitting the purchaser of interest to have recourse against the beneficiary if the distribution from the estate in satisfaction of the beneficial interest is less than the beneficial interest assigned to the purchaser of interest, other than recourse for any expense or damage arising out of the material breach of the agreement or fraud by the beneficiary.
(c) Before a copy of a written agreement under this section is filed, served, or otherwise publicly distributed as may be required by law, the purchaser of interest shall redact from that copy all information that personally identifies the beneficiary, other than the name and address of the beneficiary.
(5) To request a transfer of the interest as provided under this section, the purchaser of interest shall, not later than 30 days following the date of execution of the written agreement or, if administration of the decedent's estate has not commenced, then within 30 days of issuance of the letters of administration or letters testamentary, but in no event later than 15 days prior to the hearing on the petition for final distribution:
(a) provide a copy of the written agreement to the beneficiary, and if all or some of the negotiation or discussion that resulted in the execution of the written agreement by the beneficiary was conducted in a language other than English, provide the beneficiary with a copy of the written agreement in English, together with a copy of the written agreement translated into the language in which the written agreement was negotiated or discussed;
(b) file a copy of the written agreement that meets the requirements of this section, and that is redacted in accordance with the requirements of Subsection (4)(c), with the court; and
(c) provide notice of the assignment on the personal representative or the attorney of record for the personal representative.
(6)
(a) The beneficiary may file a motion in opposition, which motion may also request that the court schedule a hearing, within 10 calendar days of receipt of the written agreement.
(b) The court on its own motion, or in response to a motion under Subsection (6)(a), may inquire into the circumstances surrounding the execution of, and the consideration for, the written agreement to determine that the requirements of this section have been satisfied.
(c) Notice of a hearing on any motion brought under this section shall be served on the beneficiary and on the purchaser of interest at least 15 days before the date of the hearing.
(7)
(a) Except as provided in Subsections (7)(b) and (7)(c), if no motion in opposition has been filed under Subsection (6)(a), the court shall allow the transfer.
(b) The court may order distribution under the written agreement, or may order distribution on any terms that the court considers equitable, if the court finds that the purchaser of interest did not substantially comply with the requirements of this section, or if the court finds that any of the following conditions existed at the time of transfer:
(i) fees, charges, or consideration paid or agreed to be paid by the beneficiary were grossly unreasonable; or
(ii) the transfer of the beneficial interest was obtained by duress, fraud, or undue influence.
(c) In addition to any remedy specified in this section, for any willful violation of the requirements of this section found to be committed in bad faith, the court may require the purchaser of interest to pay to the beneficiary up to twice the value paid for the assignment.
(8) If the decedent's estate is not subject to a pending court proceeding under Title 75, Utah Uniform Probate Code, but is the subject of a probate proceeding in another state, the purchaser of interest shall not be required to submit to the court a copy of the written agreement as required under Subsection (5).
(1) A personal representative or any interested person may petition for an order of complete settlement of the estate. The personal representative may petition at any time, and any other interested person may petition after one year from the appointment of the original personal representative except that no petition under this section may be entertained until the time for presenting claims which arose prior to the death of the decedent has expired. The petition may request the court to determine testacy, if not previously determined, to consider the final account or compel or approve an accounting and distribution, to construe any will or determine heirs, and to adjudicate the final settlement and distribution of the estate. After notice to all interested persons and hearing the court may enter an order or orders, on appropriate conditions, determining the persons entitled to distribution of the estate, and, as circumstances require, approving settlement and directing or approving distribution of the estate and discharging the personal representative from further claim or demand of any interested person.
(2) If one or more heirs or devisees were omitted as parties in, or were not given notice of, a previous formal testacy proceeding, the court, on proper petition for an order of complete settlement of the estate under this section, and after notice to the omitted or unnotified persons and other interested parties determined to be interested on the assumption that the previous order concerning testacy is conclusive as to those given notice of the earlier proceeding, may determine testacy as it affects the omitted persons and confirm or alter the previous order of testacy as it affects all interested persons as appropriate in the light of the new proofs. In the absence of objection by an omitted or unnotified person, evidence received in the original testacy proceeding shall constitute prima facie proof of due execution of any will previously admitted to probate, or of the fact that the decedent left no valid will if the prior proceedings determined this fact.
A personal representative administering an estate under an informally probated will or any devisee under an informally probated will may petition for an order of settlement of the estate which will not adjudicate the testacy status of the decedent. The personal representative may petition at any time, and a devisee may petition after one year from the appointment of the original personal representative, except that no petition under this section may be entertained until the time for presenting claims which arose prior to the death of the decedent has expired. The petition may request the court to consider the final account or compel or approve an accounting and distribution, to construe the will, and to adjudicate final settlement and distribution of the estate. After notice to all devisees and the personal representative and hearing, the court may enter an order or orders, on appropriate conditions, determining the persons entitled to distribution of the estate under the will, and, as circumstances require, approving settlement and directing or approving distribution of the estate and discharging the personal representative from further claim or demand of any devisee who is a party to the proceeding and those he represents. If it appears that a part of the estate is intestate, the proceedings shall be dismissed or amendments made to meet the provisions of Section 75-3-1001.
(1) Unless prohibited by order of the court and except for estates being administered in supervised administration proceedings when all of the distributees of the estate consent in writing, a personal representative may close an estate by filing with the court no earlier than four months after the date of original appointment of a general personal representative for the estate, a verified statement stating that the personal representative, or a prior personal representative whom the personal representative has succeeded, has:
(a) determined that the time limitation for presentation of creditors' claims has expired;
(b) fully administered the estate of the decedent by making payment, settlement, or other disposition of all claims which were presented, expenses of administration and estate, inheritance and other death taxes, except as specified in the statement, and that the assets of the estate have been distributed to the persons entitled. If any claims remain undischarged, the statement shall state whether the personal representative has distributed the estate subject to possible liability with the agreement of the distributees or it shall state in detail other arrangements which have been made to accommodate outstanding liabilities; and
(c) sent a copy of the statement to all distributees of the estate and to all creditors or other claimants of whom he is aware whose claims are neither paid nor barred and has furnished a full account in writing of his administration to the distributees whose interests are affected thereby.
(2) If no proceedings involving the personal representative are pending in the court one year after the closing statement is filed, the appointment of the personal representative terminates.
(3) Any accounting required under this section or either Section 75-3-1001 or 75-3-1002 may be waived when all of the distributees of the estate consent in writing to the waiver.
After assets of an estate have been distributed and subject to Section 75-3-1006, an undischarged claim not barred may be prosecuted in a proceeding against one or more distributees. No distributee shall be liable to claimants for amounts received as exempt property, homestead or family allowances, or for amounts in excess of the value of his distribution as of the time of distribution. As between distributees, each shall bear the cost of satisfaction of unbarred claims as if the claim had been satisfied in the course of administration. Any distributee who shall have failed to notify other distributees of the demand made upon him by the claimant in sufficient time to permit them to join in any proceeding in which the claim was asserted against him loses his right of contribution against other distributees.
Unless previously barred by adjudication and except as provided in the closing statement, the rights of successors and of creditors whose claims have not otherwise been barred against the personal representative for breach of fiduciary duty are barred unless a proceeding to assert the same is commenced within six months after the filing of the closing statement. The rights thus barred do not include rights to recover from a personal representative for fraud, misrepresentation, or inadequate disclosure related to the settlement of the decedent's estate.
(1) Unless previously adjudicated in a formal testacy proceeding or in a proceeding settling the accounts of a personal representative or otherwise barred, the claim of any claimant to recover from a distributee who is liable to pay the claim, and the right of any heir or devisee or of a successor personal representative acting in their behalf, to recover property improperly distributed or the value thereof from any distributee is barred at the later of:
(a) as to a claim by a creditor of the decedent, one year after the decedent's death; and
(b) as to any other claimant and any heir or devisee, at the later of:
(i) three years after the decedent's death; or
(ii) one year after the time of distribution thereof.
(2) This section does not bar an action to recover property or value received as the result of fraud.
After his appointment has terminated, the personal representative, his sureties, or any successor of either, upon the filing of a verified application showing, so far as is known by the applicant, that no action concerning the estate is pending in any court, is entitled to receive a certificate from the registrar that the personal representative appears to have fully administered the estate in question. The certificate evidences discharge of any lien on any property given to secure the obligation of the personal representative in lieu of bond or any surety but does not preclude action against the personal representative or the surety.
(1) If other property of the estate is discovered after an estate has been settled and the personal representative discharged or after one year after a closing statement has been filed, the court upon petition of any interested person and upon notice as it directs may appoint the same or a successor personal representative to administer the subsequently-discovered estate.
(2) If a new appointment is made, unless the court orders otherwise, the provisions of this title apply as appropriate but no claim previously barred may be asserted in the subsequent administration.
A compromise of any controversy as to admission to probate of any instrument offered for formal probate as the will of a decedent, the construction, validity, or effect of any probated will, the rights or interests in the estate of the decedent, any successor, or the administration of the estate, if approved in a formal proceeding in the court for that purpose, is binding on all the parties thereto, including those unborn, unascertained, or who could not be located. An approved compromise is binding even though it may affect a trust or an inalienable interest. A compromise does not impair the rights of creditors or of taxing authorities who are not parties to it.
The procedure for securing court approval of a compromise is as follows:
(1) The terms of the compromise shall be set forth in an agreement in writing which shall be executed by all competent persons and parents acting for any minor child having beneficial interests or having claims which will or may be affected by the compromise. Execution is not required by any person whose identity cannot be ascertained or whose whereabouts is unknown and cannot reasonably be ascertained.
(2) Any interested person, including the personal representative or a trustee, then may submit the agreement to the court for its approval and for execution by the personal representative, the trustee of every affected testamentary trust, and other fiduciaries and representatives.
(3) After notice to all interested persons or their representatives, including the personal representative of the estate and all affected trustees of trusts, the court, if it finds that the contest or controversy is in good faith and that the effect of the agreement upon the interests of persons represented by fiduciaries or other representatives is just and reasonable, may make an order approving the agreement and directing all fiduciaries under its supervision to execute the agreement. Minor children represented only by their parents may be bound only if their parents join with other competent persons in execution of the compromise. Upon the making of the order and the execution of the agreement, all further disposition of the estate is in accordance with the terms of the agreement.
(1) Thirty days after the death of a decedent, any person indebted to the decedent or having possession of tangible personal property, including an instrument evidencing a debt, obligation, stock, or chose in action, belonging to the decedent shall pay the indebtedness or deliver the tangible personal property, or instrument evidencing a debt, obligation, stock, or chose in action to a person claiming to be the successor of the decedent, upon being presented with an affidavit made by or on behalf of the successor stating that:
(a) the value of the entire estate subject to administration, wherever located, less liens and encumbrances, does not exceed $100,000;
(b) 30 days have elapsed since the death of the decedent;
(c) no application or petition for the appointment of a personal representative is pending or has been granted in any jurisdiction; and
(d) the claiming successor is entitled to payment or delivery of the property.
(2) Consistent with the requirements of this section, a transfer agent of any security shall change the registered ownership on the books of a corporation from the decedent to the successor or successors upon the presentation of an affidavit and the security as provided in Subsection (1).
(3) The Motor Vehicle Division of the State Tax Commission shall transfer title of not more than four boats, motor vehicles, trailers, or semitrailers, registered under Title 41, Motor Vehicles, or Title 73, Chapter 18, State Boating Act, from the decedent to the successor or successors upon presentation of an affidavit as provided in Subsection (1) and upon payment of the necessary fees, except that in lieu of that language in Subsection (1)(a), the affidavit shall state that the value of the entire estate subject to administration, wherever located, other than those motor vehicles, trailers, or semitrailers, less liens and encumbrances, does not exceed $100,000.
(4) Shares of stock in a water company that are transferred under Section 73-1-10 or Title 70A, Chapter 8, Uniform Commercial Code - Investment Securities, are not eligible for transfer under this part.
The person paying, delivering, transferring, or issuing personal property or the evidence thereof pursuant to affidavit is discharged and released to the same extent as if he dealt with a personal representative of the decedent. He is not required to see to the application of the personal property or evidence thereof or to inquire into the truth of any statement in the affidavit. If any person to whom an affidavit is delivered refuses to pay, deliver, transfer, or issue any personal property or evidence thereof, it may be recovered or its payment, delivery, transfer, or issuance compelled upon proof of their right in a proceeding brought for the purpose by or on behalf of the persons entitled to it. In such event, in addition to recovering the property, the person to whom an affidavit is delivered shall, in the discretion of the court, be liable for damages to the claimant for an amount up to three times the value of the personal property plus costs of suit and reasonable attorneys' fees. Any person to whom payment, delivery, transfer, or issuance is made is answerable and accountable therefor to any personal representative of the estate or to any other person having a superior right.
If it appears from the inventory and appraisal that the value of the entire estate, less liens and encumbrances, does not exceed homestead allowance, exempt property, family allowance, costs and expenses of administration, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last illness of the decedent, the personal representative, without giving notice to creditors, may immediately disburse and distribute the estate to the persons entitled thereto and file a closing statement as provided in Section 75-3-1204.
(1) Unless prohibited by order of the court and except for estates being administered by supervised personal representatives, a personal representative may close an estate administered under the summary procedures of Section 75-3-1203 by filing with the court, at any time after disbursement and distribution of the estate, a verified statement stating:
(a) the nature and value of the estate's assets at the time of distribution;
(b) that to the best knowledge of the personal representative, the value of the entire estate, less liens and encumbrances, did not exceed homestead allowance, exempt property, family allowance, costs and expenses of administration, reasonable funeral expenses, and reasonable, necessary medical and hospital expenses of the last illness of the decedent;
(c) that the personal representative has fully administered the estate by disbursing and distributing it to the persons entitled thereto; and
(d) that the personal representative has sent a copy of the closing statement to all distributees of the estate and to all creditors or other claimants of whom the personal representative is aware whose claims are neither paid nor barred and has furnished a full account in writing of administration to the distributees whose interests are affected.
(2) If no actions or proceedings involving the personal representative are pending in the court one year after the closing statement is filed, the appointment of the personal representative terminates.
(3) A closing statement filed under this section has the same effect as one filed under Section 75-3-1003.
As used in this chapter:
(1) "Local administration" means administration by a personal representative appointed in this state pursuant to appointment proceedings described in Chapter 3, Probate of Wills and Administration.
(2) "Local personal representative" includes any personal representative appointed in this state pursuant to appointment proceedings described in Chapter 3, Probate of Wills and Administration, and excludes foreign personal representatives who acquire the power of a local personal representative under Section 75-4-205.
(3) "Resident creditor" means a person domiciled in, or doing business in this state, who is, or could be, a claimant against an estate of a nonresident decedent.
At any time after the expiration of 60 days from the death of a nonresident decedent, any person indebted to the estate of the nonresident decedent or having possession or control of personal property, or of an instrument evidencing a debt, obligation, stock, or chose in action belonging to the estate of the nonresident decedent may pay the debt, deliver the personal property, or the instrument evidencing the debt, obligation, stock, or chose in action, to the domiciliary foreign personal representative of the nonresident decedent upon being presented with proof of his appointment and an affidavit made by or on behalf of the representative stating:
(1) the date of the death of the nonresident decedent;
(2) that no local administration, or application or petition therefor, is pending in this state;
(3) that the domiciliary foreign personal representative is entitled to payment or delivery.
Payment or delivery made in good faith on the basis of the proof of authority and affidavit under Section 75-4-201 releases the debtor or person having possession of the personal property to the same extent as if payment or delivery had been made to a local personal representative.
Payment or delivery under Section 75-4-201 may not be made if a resident creditor of the nonresident decedent has notified the debtor of the nonresident decedent or the person having possession of the personal property belonging to the nonresident decedent that the debt should not be paid nor the property delivered to the domiciliary foreign personal representative.
If no local administration or application or petition therefor is pending in this state, a domiciliary foreign personal representative may file with a court in this state in a county in which property belonging to the decedent is located, authenticated copies of his appointment and of any official bond he has given.
A domiciliary foreign personal representative who has complied with Section 75-4-204 may exercise as to assets in this state all powers of a local personal representative and may maintain actions and proceedings in this state subject to any conditions imposed upon nonresident parties generally. The provisions of this section shall not apply to persons other than individuals acting as foreign personal representatives unless the state of the principal place of business of such foreign personal representative provides substantially similar provisions applicable to personal representatives from this state.
The power of a domiciliary foreign personal representative under Section 75-4-201 or 75-4-205 shall be exercised only if there is no administration or application therefor pending in this state. An application or petition for local administration of the estate terminates the power of the foreign personal representative to act under Section 75-4-205, but the local court may allow the foreign personal representative to exercise limited powers to preserve the estate. No person who, before receiving actual notice of a pending local administration, has changed his position in reliance upon the powers of a foreign personal representative shall be prejudiced by reason of the application or petition for, or grant of, local administration. The local personal representative is subject to all duties and obligations which have accrued by virtue of the exercise of the powers by the foreign personal representative and may be substituted for him in any action or proceedings in this state.
In respect to a nonresident decedent, the provisions of Chapter 3, Probate of Wills and Administration, govern proceedings, if any, in a court of this state for probate of the will, appointment, removal, supervision, and discharge of the local personal representative, and any other order concerning the estate; and the status, powers, duties, and liabilities of any local personal representative and the rights of claimants, purchasers, distributees, and others in regard to a local administration.
A foreign personal representative submits personally to the jurisdiction of the courts of this state in any proceeding relating to the estate by:
(1) filing authenticated copies of his appointment as provided in Section 75-4-204;
(2) receiving payment of money or taking delivery of personal property under Section 75-4-201; or
(3) doing any act as a personal representative in this state which would have given the state jurisdiction over him as an individual. Jurisdiction under Subsection (2) is limited to the money or value of personal property collected.
In addition to jurisdiction conferred by Section 75-4-301, a foreign personal representative is subject to the jurisdiction of the courts of this state to the same extent that his decedent was subject to jurisdiction immediately prior to death.
(1) Service of process may be made upon the foreign personal representative by registered or certified mail, addressed to his last reasonably ascertainable address, and requesting a return receipt signed by addressee only. Notice by ordinary first class mail is sufficient if registered or certified mail service to the addressee is unavailable. Service may be made upon a foreign personal representative in the manner in which service could have been made under other laws of this state on either the foreign personal representative or his decedent immediately prior to death.
(2) If service is made upon a foreign personal representative as provided in Subsection (1) above he shall be allowed at least 30 days within which to appear or respond.
An adjudication rendered in any jurisdiction in favor of or against any personal representative of the estate is as binding on the local personal representative as if he were a party to the adjudication.
As used in this chapter:
(1) "Adult" means an individual who is 18 years old or older.
(2) "Court visitor" means an individual who is trained in law, nursing, or social work and is an officer, employee, or special appointee of the court with no personal interest in the proceedings.
(3) "Full guardianship" means a guardianship that grants a guardian all the powers available to the guardian under the law with respect to an individual who is incapacitated, including all the powers, duties, and rights that a parent has with respect to the parent's unemancipated minor child.
(4) "Incapacitated" means the same as that term is defined in Section 75-1-201.
(5) "Joint legal decision-making" means two individuals, regardless of whether the individuals are married, sharing legal decision-making and each individual's rights or responsibilities are not being superior to the other individual's rights, except with respect to specified decisions set forth by the court or the individuals in an order of appointment.
(6) "Legal decision-making" means the legal right and responsibility to make all legal decisions for an individual who is incapacitated, including decisions regarding education, health care, religious training, and personal care decisions.
(7) "Letters of guardianship" means a legal document that establishes a guardian's authority to make decisions for an individual.
(8) "Limited guardianship" means, except as provided in Section 75-5-316, a guardianship that grants the guardian less than all powers available to the guardian under the law or otherwise restricts the powers of the guardian.
(9) "Order of appointment" means an order from a court:
(a) appointing a guardian for an individual who is incapacitated; and
(b) describing the powers, duties, and responsibilities of the guardian.
(10) "Specialized care professional" means an individual who is certified as a National Certified Guardian or National Master Guardian by the Center for Guardianship Certification or similar organization.
(11) "Suitable institution" means any nonprofit or for profit corporation, partnership, sole proprietorship, or other type of business organization that is owned, operated by, or employs a specialized care professional.
(1) A court has jurisdiction over protective proceedings and guardianship proceedings in accordance with Chapter 5b, Uniform and Adult Guardianship and Protective Proceedings Jurisdiction Act, and Title 78A, Judiciary and Judicial Administration.
(2) When both guardianship and protective proceedings as to the same person are commenced or pending in the same court, the proceedings may be consolidated.
(1) Any person under a duty to pay or deliver money or personal property to a minor may perform the duty to pay or deliver money or personal property, in amounts not exceeding $15,000 per annum, by paying or delivering the money or personal property to:
(a) the minor if:
(i) the minor is married; or
(ii) payment to the minor is expressly authorized by statute;
(b) any person having the care and custody of the minor with whom the minor resides; or
(c) a guardian of the minor.
(2) This section does not apply if the person making payment or delivery has actual knowledge that a conservator has been appointed or proceedings for appointment of a conservator of the estate of the minor are pending.
(3)
(a) Any person, other than the minor, receiving money or property for a minor:
(i) is obligated to apply the money to the support and education of the minor; and
(ii) may not pay oneself except by way of reimbursement for out-of-pocket expenses for goods and services necessary for the minor's support.
(b) Any excess sums of money under Subsection (3)(a) shall be preserved for future support of the minor.
(c) Any balance of money that is not used and any property received for the minor must be turned over to the minor when the minor attains the age of 18.
(4)
(a) If any money under Subsection (1) is the result of a personal injury claim or wrongful death claim, the threshold amount of $15,000 per annum described in Subsection (1) shall be the amount payable to the minor after the payment of medical bills, attorney fees, and costs of litigation that were incurred by the claim.
(b) Any person, other than the minor, receiving money under Subsection (4)(a) for a minor shall hold the money in a trust for the sole benefit of the minor.
(c) Any money that is held in a trust for a minor under Subsection (4)(b) shall be turned over to the minor when the minor attains the age of 18.
(d) Notwithstanding Subsection (4)(c), a parent or guardian of the minor may petition the court to request the disbursement of the money held in the trust for the minor under Subsection (4)(b) at any time before the minor is 18 years old.
(5) Any person receiving money under this section on behalf of a minor shall have the power to settle and release in whole or in part the claims belonging to the minor giving rise to the duty to pay money to the minor.
(6) Any person who pays or delivers in accordance with provisions of this section is not responsible for the proper application thereof.
A parent or a guardian of a minor or incapacitated person, by a properly-executed power of attorney, may delegate to another person, for a period not exceeding six months, any of the parent's or guardian's powers regarding care, custody, or property of the minor child or ward:
(1) except the power to consent to:
(a) marriage; or
(b) adoption of a minor ward; and
(2) subject to Section 53G-6-302, including making decisions related to schooling.
Nothing contained in this chapter affects or impairs the power of any court to appoint a guardian to represent the interests of any minor interested in any suit or matter pending before it.
A guardian coming into the possession or control of funds or other property of a minor or incapacitated person may be required by the court to furnish a bond in an amount and under the conditions as set forth for conservators in Sections 75-5-411 and 75-5-412.
(1)
(a) A person becomes a guardian of a minor by acceptance of a testamentary appointment, through appointment by a local school board under Section 53G-6-303, or upon appointment by the court.
(b) The guardianship status continues until terminated, without regard to the location from time to time of the guardian and minor ward.
(2)
(a) A document issued by other than a court of law which purports to award guardianship to a person who is not a legal resident of the jurisdiction in which the guardianship is awarded is not valid in the state of Utah until reviewed and approved by a Utah court.
(b) The procedure for obtaining approval of a guardianship under Subsection (2)(a) shall be identical to the procedure required under this part for obtaining a court appointment of a guardian.
(1) The parent of a minor may appoint a guardian of an unemancipated minor by will, as provided in this section, or by other written instrument as provided in Section 75-5-202.5.
(2) Subject to the rights of the minor and others under Section 75-5-203, an appointment by will or written instrument becomes effective upon filing the guardian's acceptance in the court in which the will is probated or the document is filed, if before acceptance, both parents are dead or the surviving parent is adjudged incapacitated.
(3) If both parents are dead, an effective appointment by the parent who died later has priority.
(4) This state recognizes a testamentary appointment effected by filing the guardian's acceptance under a will probated in another state which is the testator's domicile.
(5) Upon acceptance of appointment, written notice of acceptance shall be given by the guardian to the minor and to the person having his care, or to his nearest adult relative.
(1) The parent of an unemancipated minor may appoint a guardian by written instrument designating the guardian. An appointment by written instrument becomes effective where:
(a) the written instrument is filed with the petition for appointment of guardian in the court having probate jurisdiction in the county of residence of the last parent to die, if death occurred in the state, and otherwise in the court having probate jurisdiction in the county in which the minor resides in the state; and
(b) the person appointed as guardian filed in the court having jurisdiction an affidavit of acceptance which states:
(i) the name, address, and age, or birthday if known, of the minor;
(ii) the name, address, and telephone number of the appointee-guardian;
(iii) the names of the parents of the minor and that both are dead or that any surviving parent has been adjudged incapacitated;
(iv) the name of the parent who was last to die and the county where that parent resided at the date of his death;
(v) that the appointee-guardian knows of no other appointment of a guardian which supersedes the appointment by written instrument;
(vi) that the appointee-guardian accepts the appointment.
(2) The latest document appointing a guardian, whether will or written instrument, which is executed by the last parent to die has priority.
(3) Upon acceptance of an appointment, written notice of acceptance shall be given by the guardian to the minor, if he is 14 years of age or older, and to the person having his care or to his nearest adult relative.
(4) For purposes of this chapter, "instrumental" refers to a written instrument as described in this section.
Any person interested in the welfare of a minor, or a minor of 14 years or older, may file with the court in which the will is probated or the written instrument is filed a written objection to the appointment before it is accepted or within 30 days after notice of its acceptance. An objection may be withdrawn. An objection does not preclude, after a hearing on the objection, appointment by the court in a proper proceeding of the testamentary or instrumental nominee, or any other suitable person.
(1) In accordance with Subsection (2), the court may appoint a guardian for an unemancipated minor if:
(a) each parent of the minor acknowledges that the parent understands the legal effect of the guardianship and consents;
(b) all parental rights have been terminated; or
(c) each parent is unwilling or unable to exercise the parent's parental rights for any reason, including a court order suspending the parent's parental rights.
(2)
(a) A guardian appointed by will under Section 75-5-202, or by written instrument under Section 75-5-202.5, whose appointment has not been prevented or nullified under Section 75-5-203 has priority over any court appointed guardian.
(b) Notwithstanding Subsection (2)(a), the court may proceed with a court appointment upon a finding that the testamentary or instrumental guardian has failed to accept the testamentary appointment within 30 days after notice of the guardianship proceeding.
The venue for guardianship proceedings for a minor is in the place where the minor resides or is present.
(1)
(a) The court may appoint as guardian any person whose appointment would be in the best interests of the minor.
(b) In determining the minor's best interests, the court may consider the minor's physical, mental, moral, and emotional health needs.
(2) Except as provided in Subsection (3), the court shall appoint a person nominated by the minor, if the minor is 14 years of age or older, unless the court finds the appointment contrary to the best interests of the minor.
(3) The court may deny the appointment of a guardian for a minor of school age if it finds that:
(a) if the minor is older than 11 years of age:
(i) the minor has not secured a certificate from the local police authority in the jurisdiction where the minor has lived during the past two years stating that there have been no criminal charges filed against the minor and the minor is not the subject of a criminal investigation in that jurisdiction and given a copy of the certificate to the superintendent of the school district in which the minor would attend school in Utah; or
(ii) a release has not been given by or on behalf of the minor to the superintendent of the school district in which the minor would attend school in Utah within a reasonable time prior to the guardianship hearing, allowing the superintendent full access to all criminal records of the minor in those jurisdictions outside the state where the minor has resided during the previous two years, which release remains part of the minor's school records together with verification of residence for the previous two years, except that information disclosed in the criminal records may not be made a part of the minor's school record;
(b) the school district has proven by a preponderance of the evidence that the primary purpose for the guardianship is to avoid the payment of tuition, which a school district may assess against a nonresident for attendance at a Utah public school; or
(c) after consideration of relevant evidence, including any presented by the school district in which the petitioner resides, the minor's behavior indicates an ongoing unwillingness to abide by applicable law or school rules.
(4) If a school district files an objection for reasons described in Subsection (3)(b), and the court does not find in favor of the school district, the court may award the petitioner attorney fees and costs if the court finds that the school district's arguments lack a reasonable basis in law or fact.
(1) Notice of the time and place of hearing of a petition for the appointment of a guardian of a minor is to be given by the petitioner in the manner prescribed by Section 75-1-401 to:
(a) the minor, if the minor is 14 years old or older;
(b) the person who has had the principal care and custody of the minor during the 60 days preceding the date of the petition;
(c) any living parent of the minor;
(d) any guardian appointed by the will or written instrument of the parent of the minor who died last; and
(e) the school district in which the petitioner resides and a representative of the school district may participate in the hearing.
(2)
(a) After a hearing, a court may appoint a guardian if the court finds by preponderance of the evidence that:
(i) a qualified person seeks appointment;
(ii) venue is proper;
(iii) the required notices have been given;
(iv) the requirements of Sections 75-5-204 and 75-5-206 have been met; and
(v) the welfare and best interests of the minor will be served by the requested appointment.
(b) In other cases the court may dismiss the proceedings or make any other disposition of the matter that will best serve the interest of the minor.
(3)
(a) If necessary, the court may appoint a temporary guardian, with the status of an ordinary guardian of a minor.
(b) The authority of a temporary guardian may not last longer than six months.
(4) If, at any time in the proceeding, the court determines that the interests of the minor are or may be inadequately represented, it may appoint an attorney to represent the minor, giving consideration to the preference of the minor if the minor is 14 years old or older.
By accepting a testamentary, instrumental, or court appointment as guardian, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person or any person interested in the welfare of the minor. Notice of any proceeding shall be delivered to the guardian or mailed to him by ordinary mail at his address as listed in the court records and to his address as then known to the petitioner. Letters of guardianship shall indicate whether the guardian was appointed by will, written instrument, or by court order.
(1) For purposes of this section, "residual parental rights and duties" is as defined in Section 80-1-102.
(2) Except as provided in Subsection (4)(a), a guardian of a minor has the powers and responsibilities of a parent who has not been deprived of custody of the parent's unemancipated minor, including the powers and responsibilities described in Subsection (3).
(3) A guardian of a minor:
(a) must take reasonable care of the personal effects of the guardian's ward;
(b) must commence protective proceedings if necessary to protect other property of the guardian's ward;
(c) subject to Subsection (4)(b), may receive money payable for the support of the ward to the ward's parent, guardian, or custodian under the terms of a:
(i) statutory benefit or insurance system;
(ii) private contract;
(iii) devise;
(iv) trust;
(v) conservatorship; or
(vi) custodianship;
(d) subject to Subsection (4)(b), may receive money or property of the ward paid or delivered by virtue of Section 75-5-102;
(e) except as provided in Subsection (4)(c), must exercise due care to conserve any excess money or property described in Subsection (3)(d) for the ward's future needs;
(f) unless otherwise provided by statute, may institute proceedings to compel the performance by any person of a duty to:
(i) support the ward; or
(ii) pay sums for the welfare of the ward;
(g) is empowered to:
(i) facilitate the ward's education, social, or other activities; and
(ii) subject to Subsection (4)(d), authorize medical or other professional care, treatment, or advice;
(h) may consent to the:
(i) marriage of the guardian's ward, if specifically authorized by a court to give this consent; or
(ii) adoption of the guardian's ward if the:
(A) guardian of the ward is specifically authorized by a court to give this consent; and
(B) parental rights of the ward's parents have been terminated; and
(i) must report the condition of the minor and of the minor's estate that has been subject to the guardian's possession or control:
(i) as ordered by court on petition of any person interested in the minor's welfare; or
(ii) as required by court rule.
(4)
(a) Notwithstanding Subsection (2), a guardian of a minor is not:
(i) legally obligated to provide from the guardian's own funds for the ward; and
(ii) liable to third persons by reason of the guardian's relationship for acts of the ward.
(b) Sums received under Subsection (3)(c) or (d):
(i) may not be used for compensation for the services of a guardian, except as:
(A) approved by court order; or
(B) determined by a duly appointed conservator other than the guardian; and
(ii) shall be applied to the ward's current needs for support, care, and education.
(c) Notwithstanding Subsection (3)(e), if a conservator is appointed for the estate of the ward, the excess shall be paid over at least annually to the conservator.
(d) A guardian of a minor is not, by reason of giving the authorization described in Subsection (3)(g)(ii), liable for injury to the minor resulting from the negligence or acts of third persons, unless it would have been illegal for a parent to have given the authorization.
(5) A parent of a minor for whom a guardian is appointed retains residual parental rights and duties.
(6) If a parent of a minor for whom a guardian is appointed consents to the adoption of the minor, the guardian is entitled to:
(a) receive notice of the adoption proceeding pursuant to Section 81-13-207;
(b) intervene in the adoption; and
(c) present evidence to the court relevant to the best interest of the minor as described in Subsection 81-13-207(11).
(7) If a minor for whom a guardian is appointed is adopted subsequent to the appointment, the guardianship shall terminate when the adoption is finalized.
A guardian's authority and responsibility terminates upon the death, resignation, or removal of the guardian or upon the minor's death, adoption, marriage, or attainment of majority, but termination does not affect his liability for prior acts nor his obligation to account for funds and assets of his ward. Resignation of a guardian does not terminate the guardianship until it has been approved by the court. A testamentary appointment under an informally probated will terminates if the will is later denied probate in a formal proceeding.
(1) The court where the ward resides has concurrent jurisdiction with the court which appointed the guardian, or in which acceptance of an appointment by will or written instrument was filed, over resignation, removal, accounting, and other proceedings relating to the guardianship.
(2) If the court located where the ward resides is not the court in which acceptance of appointment is filed, the court in which proceedings subsequent to appointment are commenced shall in all appropriate cases notify the other court, in this or another state, and after consultation with that court determine whether to retain jurisdiction or transfer the proceedings to the other court, whichever is in the best interest of the ward. A copy of any order accepting a resignation or removing a guardian shall be sent to the court in which acceptance of appointment is filed.
(1) Any person interested in the welfare of a ward, or the ward, if 14 or more years of age, may petition for removal of a guardian on the ground that removal would be in the best interest of the ward. A guardian may petition for permission to resign. A petition for removal or for permission to resign may, but need not, include a request for appointment of a successor guardian.
(2) After notice and hearing on a petition for removal or for permission to resign, the court may terminate the guardianship and make any further order that may be appropriate.
(3) If, at any time in the proceeding, the court determines that the interests of the ward are, or may be, inadequately represented, it may appoint an attorney to represent the minor, giving consideration to the preference of the minor if the minor is 14 or more years of age.
(1) The parent of an incapacitated person may by will, or by written instrument as provided in Section 75-5-202.5, appoint a guardian of the incapacitated person. A testamentary appointment by a parent becomes effective when, after having given seven days' prior written notice of his intention to do so to the incapacitated person and to the person having his care or with whom he resides or to at least one adult relative in the nearest degree of kinship to the incapacitated person in which there is an adult, the guardian files acceptance of appointment in the court in which the will is informally or formally probated, or where the written instrument is filed, if prior thereto both parents are dead or the surviving parent is adjudged incapacitated. If both parents are dead, an effective appointment by the parent who died later has priority unless it is terminated by the denial of probate in formal proceedings. A provision contained in a person's will or written instrument appointing a guardian of his minor children is not to be considered to be an appointment of a guardian of an incapacitated adult child unless it appears from the will that this was the testator's intention.
(2) The spouse of a married incapacitated person may by will or written instrument appoint a guardian of the incapacitated person. The appointment becomes effective when, after having given seven days' prior written notice of his intention to do so to the incapacitated person and to the person having his care or with whom he resides or to at least one adult relative in the nearest degree of kinship to the incapacitated person in which there is an adult, the guardian files acceptance of appointment in the court in which the will is informally or formally probated or the written instrument is filed. An effective appointment by a spouse has priority over an appointment by a parent unless it is terminated by the denial of probate in formal proceedings.
(3) This state shall recognize a testamentary appointment effected by filing acceptance under a will probated at the testator's domicile in another state.
(4) On the filing with the court in which the will was probated or the written instrument was filed, of written objection to the appointment by the person for whom a testamentary or instrumental appointment of guardian has been made, the appointment is terminated. An objection does not prevent appointment by the court in a proper proceeding of the nominee named by will or written instrument or any other suitable person upon an adjudication of incapacity in proceedings under the succeeding sections of this part.
(1) Except as otherwise provided by this chapter or any other law, a person alleged to be incapacitated has the right to:
(a) be represented by counsel before a guardianship is imposed and have counsel represent the person during the guardianship proceeding, except as provided in Subsection 75-5-303(6)(e);
(b) receive a copy of all documents filed in a guardianship proceeding;
(c) have a relative, physician, physician assistant, or any interested person speak about or raise any issue of concern on behalf of the person during the guardianship proceeding;
(d) receive information about guardianships from the court; and
(e) be treated with respect and dignity.
(2) For a guardianship granted before May 7, 2025, the rights of an incapacitated person for whom a guardian is appointed are in accordance with the statutory provisions in effect as of the date that the guardianship was granted, including, as applicable, Subsection 75-5-312(1)(c)(i) unless expressly limited by a court in the order of appointment.
(3) Except as otherwise provided by this chapter or any other law, for a guardianship granted on or after May 7, 2025, an incapacitated person for whom a guardian is appointed has the right to:
(a) have counsel represent the incapacitated person at any time after the guardian is appointed;
(b) have a relative, physician, physician assistant, or any interested person speak about or raise any issue of concern on behalf of the person in any court hearing about the guardianship;
(c) receive a copy of all documents filed in court regarding the guardianship;
(d) receive information about guardianships from the court;
(e) ask questions and express concerns or complaints about a guardian and the actions of a guardian to the court;
(f) be granted the greatest degree of freedom possible that is consistent with the reasons for the guardianship;
(g) be treated with respect and dignity;
(h) be treated fairly by the incapacitated person's guardian;
(i) have all services provided by a guardian at a reasonable rate of compensation;
(j) have a court review any request for payment by a guardian to avoid excessive or unnecessary fees or duplicative billing;
(k) receive prudent financial management of the incapacitated person's property;
(l) subject to Subsections 75-5-312(4)(h) and 75-5-417(4), and subject to the exception provided in Subsection 75-5-312(7)(d), receive a copy of an accounting report regarding the incapacitated person's estate that is submitted to the court by the guardian under Section 75-5-312 or the conservator under Section 75-5-417 if a conservator is appointed for the incapacitated person; and
(m) ask the court to:
(i) review the management activity of a guardian if a dispute cannot be resolved regarding the guardian's management;
(ii) continue to review the need for a guardianship or to modify or terminate a guardianship in accordance with Section 75-5-306 and Section 75-5-307; and
(iii) enter an order restoring the incapacitated person's capacity at the earliest possible time in accordance with Section 75-5-306 and Section 75-5-307.
(4) The court may not waive, suspend, or limit a right described in Subsection (3).
(5) Except as otherwise provided by this chapter or any other law, and subject to Subsection (6), for a guardianship granted on or after May 7, 2025, an incapacitated person for whom a guardian is appointed has the right, to the extent practicable, to:
(a) participate in developing an individualized plan for the incapacitated person's care, including:
(i) managing the incapacitated person's assets and property;
(ii) determining the incapacitated person's residence; and
(iii) determining the services to be received by the incapacitated person;
(b) be given consideration in regards to the incapacitated person's current and previously stated desires, preferences for health care and medical treatment, and religious and moral beliefs;
(c) remain as independent as possible, including giving deference to the incapacitated person's preference for the incapacitated person's residence and standard of living:
(i) as expressed or demonstrated before a determination of capacity was made; or
(ii) as currently expressed or demonstrated by the incapacitated person if the preference is reasonable under the circumstances;
(d) be able to exercise control over all aspects of the incapacitated person's life that are not granted to the guardian in an order of appointment of a limited guardianship;
(e) maintain privacy and confidentiality in personal matters, to the extent that privacy and confidentiality does not inhibit the ability of the incapacitated person's guardian to fulfill the guardian's responsibilities or perform the guardian's duties;
(f) receive telephone calls and personal mail and associate with relatives and acquaintances unless the guardian and the court determine that the association should be restricted or prohibited in accordance with Section 75-5-312.5;
(g) receive timely, effective, and appropriate health care and medical treatment that does not violate the incapacitated person's rights;
(h) receive an allowance or control a reasonable amount of the incapacitated person's earnings or other income; and
(i) collaborate with the incapacitated person's guardian to use appropriate financial tools to maintain a bank account and manage the incapacitated person's personal money.
(6) The court may waive or limit a right described in Subsection (5) if:
(a) an interested party requests the waiver or limitation; and
(b) the court finds, by clear and convincing evidence, that there is a compelling reason for the waiver or limitation.
(7)
(a) The rights of an incapacitated person under this section do not abrogate any remedy provided by law.
(b) This section may not be interpreted in a way that would permit or justify any action that violates a provision in Sections 76-5-111 through 76-5-111.4 or Section 76-5-112.5.
(c) Nothing in this section shall be construed to alter or preempt the requirements for protecting health information under the Health Insurance Portability and Accountability Act of 1996, 50 Pub. L. No. 104-191, 110 Stat. 1936, as amended.
(8) Any right described in this section may be:
(a) addressed in a guardianship proceeding; or
(b) enforced through a private cause of action.
The venue for guardianship proceedings for an incapacitated person is in the place where the incapacitated person resides or is present. If the incapacitated person is admitted to an institution pursuant to order of a court of competent jurisdiction, venue is also in the county in which that court sits.
(1) An allegedly incapacitated person or any person interested in an allegedly incapacitated person's welfare may petition for a finding of incapacity and appointment of a guardian.
(2)
(a) Upon the filing of a petition, the court shall set a date for hearing on the issues of incapacity.
(b) Unless the allegedly incapacitated person has counsel of the person's own choice, the court shall appoint an attorney to represent the person in the proceeding the cost of which shall be paid by the allegedly incapacitated person, unless the allegedly incapacitated person and the allegedly incapacitated person's parents are indigent.
(c) If the court determines that the petition is without merit, the attorney fees and court costs shall be paid by the person filing the petition.
(d) If the court appoints the petitioner or the petitioner's nominee as guardian of the incapacitated person, regardless of whether the nominee is specified in the moving petition or nominated during the proceedings, the petitioner shall be entitled to receive from the incapacitated person reasonable attorney fees and court costs incurred in bringing, prosecuting, or defending the petition.
(3) The legal representation of an allegedly incapacitated person by an attorney shall terminate upon the appointment of a guardian, unless:
(a) there are separate conservatorship proceedings still pending before the court subsequent to the appointment of a guardian;
(b) there is a timely filed appeal of the appointment of the guardian or the determination of incapacity; or
(c) upon an express finding of good cause, the court orders otherwise.
(4)
(a) The court may appoint a health care provider, as that term is defined in Section 75A-3-101, who is qualified by training, education, and experience to examine the functional capabilities and limitations of the allegedly incapacitated person.
(b) An appointed health care provider shall file with the court a report assessing, within the scope of the health care provider's license and experience, using evidence-based screening tools appropriate for the assessment, the functional capabilities and limitations of the allegedly incapacitated person to, with or without appropriate technological assistance:
(i) receive and evaluate information;
(ii) make and communicate decisions; and
(iii) provide for necessities such as food, shelter, clothing, health care, or safety.
(c)
(i) An appointed health care provider may interview the person seeking appointment as guardian.
(ii) The appointed health care provider may not base the appointed health care provider's assessment described in Subsection (4)(b) solely or predominately on the opinion of the person seeking appointment as guardian.
(5)
(a) The court may appoint a court visitor to:
(i) interview the person seeking appointment as guardian;
(ii) visit the present place of abode of the allegedly incapacitated person and the place it is proposed that the allegedly incapacitated person will be detained or reside if the requested appointment is made; or
(iii) conduct other investigations or observations as directed by the court.
(b) The court visitor shall file a written report with the court.
(6)
(a) The allegedly incapacitated person shall be present at the hearing and see or hear all evidence bearing upon the person's condition.
(b) The court may only waive the presence of the allegedly incapacitated person if all of the following criteria are met:
(i) the person is represented by an attorney;
(ii) a court visitor is appointed to investigate, the costs of which shall be paid by the person seeking the guardianship; and
(iii) following the investigation, the court finds that there is no reasonable accommodation that will enable the allegedly incapacitated person to be present for or participate in the hearing.
(c) A court visitor is not required to investigate under Subsection (6)(b)(ii) if there is clear and convincing evidence from a physician that the person alleged to be incapacitated is experiencing a state of extended comatosis that is likely to persist through the time of the hearing.
(d) In addition to the rights described in Section 75-5-301.5, an allegedly incapacitated person is entitled to be represented by counsel, to present evidence, to cross-examine witnesses, including the court-appointed health care provider and the court visitor, and to trial by jury. The issue may be determined at a closed hearing without a jury if the allegedly incapacitated person or the person's counsel so requests.
(e) Counsel for the allegedly incapacitated person is not required if all of the following criteria are met:
(i) the allegedly incapacitated person is the biological or adopted child of the petitioner;
(ii) the value of the allegedly incapacitated person's entire estate does not exceed $20,000 as established by an affidavit of the petitioner in accordance with Section 75-3-1201;
(iii) the allegedly incapacitated person's appearance at the hearing has not been waived and the person appears in court with the petitioner, as described in Subsection (6)(a);
(iv) the allegedly incapacitated person is given the opportunity to communicate, to the extent possible, the person's acceptance of or objection to the appointment of the proposed guardian, including the opportunity to communicate that acceptance or objection to the court and, as applicable, to the person's supporters, health care providers, and attorney;
(v) no attorney from the state court's list of attorneys who have volunteered to represent respondents in guardianship proceedings is able to provide counsel to the person within 60 days of the date of the hearing, as described in Subsection (2)(b);
(vi) the court is satisfied that counsel is not necessary to protect the interests of the allegedly incapacitated person; and
(vii) the court appoints a court visitor and receives a report from the court visitor under Subsection (5).
(1) The court may appoint a guardian as requested if the court finds, by clear and convincing evidence, that:
(a) the person for whom a guardian is sought is incapacitated; and
(b) the appointment is necessary or desirable as a means of providing continuing care and supervision of the incapacitated person.
(2)
(a)
(i) The court shall prefer a limited guardianship and may only grant a full guardianship if no other alternative exists.
(ii) If the court does not grant a limited guardianship, a specific finding shall be made that nothing less than a full guardianship is adequate.
(b)
(i) An order of appointment of a limited guardianship shall state the limitations of the guardianship.
(ii) Letters of guardianship for a limited guardianship shall state the limitations of the guardianship unless the court determines for good cause shown that a limitation should not be listed in the letters.
(3)
(a) Except as provided in Subsection (3)(b), a guardian appointed by will or written instrument, under Section 75-5-301, whose appointment has not been prevented or nullified under Subsection 75-5-301(4), has priority over any guardian who may be appointed by the court.
(b) Upon a finding that the testamentary or instrumental guardian has failed to accept the appointment within 30 days after notice of the guardianship proceeding, the court may:
(i) dismiss the proceeding; or
(ii) enter any other appropriate order.
(4) If the court grants a guardian with the power to make or assist with health care decisions for an incapacitated person, the court shall include in the order of appointment the name of any interested person for whom the guardian must notify of any significant health care or treatment received by the incapacitated person.
By accepting appointment, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person or any person interested in the welfare of the ward. Notice of any proceeding shall be delivered to the guardian or mailed to him by ordinary mail at his address as listed in the court records and to his address as then known to the petitioner.
(1)
(a) Except for the time period described in Subsection (1)(b), the ward or any person interested in the ward's welfare may petition for an order:
(i) that the ward is no longer incapacitated; and
(ii) for removal or resignation of the guardian in accordance with Section 75-5-307.
(b) In an order adjudicating capacity, a court may specify a minimum period of time, not exceeding one year, during which no petition for an adjudication that the ward is no longer incapacitated can be filed without leave from the court.
(c) A request for the order described in Subsection (1) may be made by informal letter to the court.
(d) Any person who knowingly interferes with a request described in Subsection (1)(a) may be sanctioned by the court.
(2) The authority and responsibility of a guardian for an incapacitated person terminates upon:
(a) the death of the guardian or the ward;
(b) the determination that the guardian is incapacitated; or
(c) the removal or resignation of the guardian in accordance with Section 75-5-307.
(3) Resignation of a guardian does not terminate the guardianship until the resignation has been approved by the court.
(4) Testamentary appointment of a guardian under an informally probated will terminates if the will is later denied probate in a formal proceeding.
(5) Termination of a guardian does not affect the guardian's liability for the guardian's prior acts or the guardian's obligation to account for funds and assets of the guardian's ward.
(6) On a petition to order that a ward's incapacity is terminated, the court shall follow the same procedures to safeguard the rights of the ward for a petition for appointment of a guardian under Section 75-5-303.
(1) On a petition of resignation from a guardian, the court may:
(a) accept the guardian's resignation; or
(b) make any other order that is appropriate.
(2) On a petition of removal of a guardian from the ward or any person interested in the ward's welfare, the court may remove a guardian if:
(a) the guardian obtained the appointment by fraud, deceit, or gross misrepresentation;
(b) the guardian fails to perform the guardian's duties described in Section 75-5-312;
(c) the guardian is unable to perform the guardian's duties, described in Section 75-5-312, due to incapacity or illness;
(d) the guardian fails to use reasonable care and diligence in the management of the ward's estate;
(e) the guardian is found by the court to have filed a petition frivolously or in bad faith under Section 75-5-312.5;
(f) the guardian's interests have become adverse to the faithful performance of the guardian's duties and there is a risk that the guardian will fail to faithfully perform the guardian's duties; or
(g) removal of the guardian would be in the best interest of the ward.
(3) If the court removes a guardian under Subsection (2), the court may:
(a) appoint a successor guardian; or
(b) make any other order that is appropriate.
(4) On a petition of resignation or removal of a guardian, the court shall follow the same procedures to safeguard the rights of the ward for a petition for appointment of a guardian under Section 75-5-303.
(5) The court is not required to appoint an attorney to represent the ward if the case is uncontested and the ward's incapacity is not at issue.
(1) In a proceeding for the appointment or removal of a guardian of an incapacitated person other than the appointment of an emergency guardian or temporary suspension of a guardian, notice of hearing shall be given to each of the following:
(a) the ward or the person alleged to be incapacitated and spouse, parents, and adult children of the ward or person;
(b) any person who is serving as guardian or conservator or who has care and custody of the ward or person;
(c) in case no other person is notified under Subsection (1)(a), at least one of the closest adult relatives, if any can be found;
(d) any guardian appointed by the will of the parent who died later or spouse of the incapacitated person; and
(e) Adult Protective Services if Adult Protective Services has received a referral under Title 26B, Chapter 6, Part 2, Abuse, Neglect, or Exploitation of a Vulnerable Adult, concerning the welfare of the ward or person alleged to be incapacitated or concerning the guardian or conservator or proposed guardian or conservator.
(2) The notice shall be in plain language and large type and the form shall have the final approval of the Judicial Council. The notice shall indicate the time and place of the hearing, the possible adverse consequences to the person receiving notice of rights, a list of rights, including the person's own or a court appointed counsel, and a copy of the petition.
(3) Notice shall be served personally on the alleged incapacitated person and the person's spouse and parents if they can be found within the state. Notice to the spouse and parents, if they cannot be found within the state, and to all other persons except the alleged incapacitated person shall be given as provided in Section 75-1-401. Waiver of notice by the person alleged to be incapacitated is not effective unless the person attends the hearing or the person's waiver of notice is confirmed in an interview with the visitor appointed pursuant to Section 75-5-303.
(1) If an incapacitated person has no guardian and an emergency exists or if an appointed guardian is not effectively performing the guardian's duties and the court further finds that the welfare of the incapacitated person requires immediate action, it may, without notice, appoint an emergency guardian for the person for a specified period not to exceed 30 days pending notice and hearing.
(2) Upon request by an interested person after the appointment of an emergency guardian, the court shall hold a hearing within 14 days pursuant to Section 75-5-303.
(1) If, after notice and hearing as required by Section 75-5-303, the court finds good cause, the court may:
(a) appoint a temporary guardian;
(b) convert an emergency guardian to a temporary guardian if an emergency guardian has been appointed under Section 75-5-310; or
(c) appoint a different person as temporary guardian to replace an emergency guardian appointed under Section 75-5-310.
(2) Unless the allegedly incapacitated person has already obtained counsel in this proceeding or an attorney has been already appointed for the person, the court shall appoint an attorney to represent the person in the proceeding.
(3) Until a full hearing and further order of the court, the temporary guardian shall be charged with the care and custody of the ward and may not permit the ward to be removed from the state. The authority of any permanent guardian previously appointed by the court is suspended so long as a temporary guardian has authority.
(4) A temporary guardian may be removed at any time, and shall obey all orders and make any reports required by the court.
(5) A temporary guardian has all of the powers and duties of a permanent guardian as set forth in Section 75-5-312.
(1)
(a) The court shall appoint a guardian in accordance with the incapacitated person's most recent nomination, unless that person is disqualified or the court finds other good cause why the person should not serve as guardian.
(b) That nomination shall have been made prior to the person's incapacity, shall be in writing and shall be signed by the person making the nomination.
(c) The nomination shall be in substantially the following form:
Nomination of Guardian by an Adult
I, (Name), being of sound mind and not acting under duress, fraud, or other undue influence, do hereby nominate (Name, current residence, and relationship, if any, of the nominee) to serve as my guardian in the event that after the date of this instrument I become incapacitated.
Executed at ____________________________ (city, state)
on this ____________ day of ______________
(Signature)
(2) Except as provided in Subsection (1), persons who are not disqualified have priority for appointment as guardian in the following order:
(a) a person who has been nominated by the incapacitated person, by any means other than that described in Subsection (1), if the incapacitated person was 14 years old or older when the nomination was executed and, in the opinion of the court, that person acted with sufficient mental capacity to make the nomination;
(b) the spouse of the incapacitated person;
(c) an adult child of the incapacitated person;
(d) a parent of the incapacitated person, including a person nominated by will, written instrument, or other writing signed by a deceased parent;
(e) any relative of the incapacitated person with whom he has resided for more than six months prior to the filing of the petition;
(f) a person nominated by the person who is caring for him or paying benefits to him;
(g) a specialized care professional, so long as the specialized care professional does not:
(i) profit financially or otherwise from or receive compensation for acting in that capacity, except for the direct costs of providing guardianship or conservatorship services; or
(ii) otherwise have a conflict of interest in providing those services;
(h) any competent person or suitable institution; or
(i) the Office of Public Guardian under Title 26B, Chapter 6, Part 3, Office of Public Guardian.
(1)
(a) A guardian of an incapacitated person shall diligently and in good faith carry out the specific duties, powers, and rights that the guardian is granted:
(i) in an order of appointment by a court under Section 75-5-304; and
(ii) under this section.
(b) A court may, in the order of appointment, place specific limitations on the guardian's power, duties, and rights.
(c)
(i) Except as provided in this Subsection (1), a guardian has the same powers, rights, and duties respecting the ward that a parent has respecting the parent's unemancipated minor.
(ii) A guardian is not liable to a third person for acts of the guardian's ward solely by reason of the relationship described in Subsection (1)(c)(i).
(d) In carrying out duties, powers, and rights that a guardian is granted, the guardian shall encourage the ward, to the extent practicable, to participate in decisions, exercise self-determination, act on the ward's own behalf, and develop or regain the capacity to manage the ward's personal affairs.
(e) To the extent known, a guardian, in making decisions about the ward, shall consider the expressed desires, preferences, and personal values of the ward.
(2) Except as modified by an order of appointment under Section 75-5-304, a guardian has the following duties and powers:
(a) to the extent that it is consistent with the terms of any order by a court relating to detention or commitment of the ward, a guardian is entitled to custody of the person of the ward and may establish the ward's place of residence within, or outside of, this state, except that the guardian must give consideration to the ward's preference for the ward's place of residence in accordance with Section 75-5-301.5;
(b) if a guardian is entitled to custody of the ward, the guardian shall provide for the care, comfort, and maintenance of the ward and, whenever appropriate, arrange for the ward's training and education;
(c) without regard to custodial rights of the ward's person, a guardian shall take reasonable care of the ward's clothing, furniture, vehicles, and other personal effects and commence protective proceedings if other property of the ward is in need of protection;
(d) a guardian may give the consent or approval that may be necessary to enable the ward to receive medical or other professional care, counsel, treatment, or service, except that the guardian must:
(i) give consideration to the ward's current and previously stated desires for health care and medical treatment in accordance with Section 75-5-301.5; and
(ii) respect the ward's right to receive timely, effective, and appropriate health care in accordance with Section 75-5-301.5;
(e) a guardian is required to notify any interested person named in the order of appointment under Subsection 75-5-304(4) of any significant health care or treatment received by the ward;
(f) a guardian is required to immediately notify persons who request notification and are not restricted in associating with the ward in accordance with Section 75-5-312.5 of:
(i) the ward's admission to a hospital for three or more days or to a hospice program;
(ii) the ward's death; or
(iii) the arrangements for the disposition of the ward's remains;
(g) a guardian is required to immediately notify all interested persons if the guardian reasonably believes that the ward's death is likely to occur within the next 10 days, based on:
(i) the guardian's own observations; or
(ii) information from the ward's physician or other medical care providers;
(h) a guardian is required to:
(i) unless emergency conditions exist:
(A) file with the court a notice of the guardian's intent to move the ward; and
(B) serve the notice on all interested persons at least 10 days before the day on which the guardian moves the ward; or
(ii) take reasonable steps to:
(A) notify all interested persons of the guardian's intent to move the ward; and
(B) file the notice of the move with the court as soon as practicable following the earlier of the move or the date when the guardian's intention to move the ward is made known to the ward, the ward's care giver, or any other third party;
(i) except as otherwise provided by Section 75-5-312.5, a guardian may not restrict or prohibit a ward's association, as defined in Section 75-5-312.5, with family, relatives, or friends;
(j) if no conservator for the estate of the ward has been appointed, a guardian may:
(i) institute proceedings to compel any person under a duty to support the ward or to pay sums for the welfare of the ward to perform that duty;
(ii) compel the production of the ward's estate documents, including the ward's will, trust, power of attorney, and any advance health care directive; and
(iii) receive money and tangible property deliverable to the ward and apply the money and property for support, care, and education of the ward, except that:
(A) the guardian may not use funds from the ward's estate for room and board that the guardian or the guardian's spouse, parent, or child have furnished the ward unless a charge for the service is approved by order of the court made upon notice to at least one adult relative in the nearest degree of kinship to the ward in which there is an adult; and
(B) the guardian shall exercise care to conserve any excess for the ward's needs;
(k) if no conservator for the estate of the ward has been appointed:
(i) for all estates in excess of $50,000 excluding the residence owned by the ward, a guardian shall send a report with a full accounting to the court on an annual basis; or
(ii) for estates less than $50,000 excluding the residence owned by the ward, a guardian shall fill out an informal annual report and mail the report to the court;
(l) a guardian shall provide an annual accounting of the status of the ward, including a report of the physical and mental condition of the ward, the ward's estate that has been subject to the guardian's possession, the ward's place of residence and others living in the same household, to the court in the petition or the annual report as required under Subsection (2)(k); and
(m) a guardian shall comply with standards set by the National Guardianship Association for guardians to the extent that the standards are applicable to the guardian.
(3) For the purposes of Subsections (2)(f), (g), and (h), an interested person is a person required to receive notice in guardianship proceedings as described in Section 75-5-309.
(4)
(a) An accounting report under Subsection (2)(k) shall include a statement regarding:
(i) all assets at the beginning and end of the reporting year;
(ii) any income received during the year;
(iii) any disbursements for the support of the ward;
(iv) any investments or trusts that are held for the ward's benefit;
(v) any expenditures or fees charged to the ward's estate; and
(vi) any other expenses incurred by the ward's estate.
(b) The court may require additional information in an accounting report under Subsection (2)(k).
(c) The Judicial Council shall approve forms for the accounting reports described in Subsection (2)(k).
(d) An annual accounting report under Subsection (2)(k) shall be examined and approved by the court.
(e) If the ward's income is limited to a federal or state program requiring an annual accounting report, a copy of that report may be submitted to the court in lieu of the required annual accounting report under Subsection (2)(k).
(f)
(i) A corporate fiduciary is not required to petition the court, but shall submit the corporate fiduciary's internal report annually to the court.
(ii) The report under Subsection (4)(f)(i) shall be examined and approved by the court.
(g) If a fee is paid for an accounting of an estate, a fee may not be charged for an accounting of the status of a ward under Subsection (2)(l).
(h) Upon a motion and after a hearing, the court may alter the frequency of, or the information included in, an accounting report provided to a ward in accordance with Subsection 75-5-301.5(3)(l).
(5) If a conservator has been appointed for a ward:
(a) all of the ward's estate received by the guardian in excess of those funds expended to meet current expenses for support, care, and education of the ward shall be paid to the conservator for management as provided in this chapter; and
(b) the guardian shall account to the conservator for funds expended.
(6)
(a) Any guardian of a person for whom a conservator has been appointed:
(i) shall control the custody and care of the ward; and
(ii) is entitled to receive reasonable sums for services and for room and board furnished to the ward as agreed upon between the guardian and the conservator if the amounts agreed upon are reasonable under the circumstances.
(b) The guardian may request the conservator to expend the ward's estate by payment to third persons or institutions for the ward's care and maintenance.
(7)
(a) The court may impose a penalty in an amount not to exceed $5,000 if a guardian:
(i) makes a substantial misstatement on filings of annual reports;
(ii) is guilty of gross impropriety in handling the property of the ward; or
(iii) willfully fails to file the report required by this section after receiving written notice from the court of the failure to file and after a grace period of two months has elapsed.
(b) The court may order restitution of funds misappropriated from the estate of a ward.
(c) A penalty under this Subsection (7) shall be paid by the guardian and may not be paid by the ward or the ward's estate.
(d) The provisions and penalties in Subsection (2)(k) or (l) governing annual reports do not apply if the guardian or a coguardian is the parent of the ward.
(8) A person who refuses to accept the authority of a guardian with authority over financial decisions to transact business with the assets of the ward after receiving a certified copy of letters of guardianship is liable for costs, expenses, attorney fees, and damages if the court determines that the person did not act in good faith in refusing to accept the authority of the guardian.
(1) As used in this section:
(a) "Associate" or "association" means:
(i) visitation of an adult ward by a relative or qualified acquaintance; or
(ii) communication between an adult ward and a relative or qualified acquaintance in any form, including by telephone, mail, or electronic communication.
(b) "Qualified acquaintance" means an individual, other than a relative of the adult ward, who:
(i) has established a significant, mutual friendship with the adult ward; or
(ii) is clergy in the adult ward's religion or religious congregation.
(c) "Relative" means an adult ward's spouse, parent, step-parent, child, step-child, sibling, step-sibling, half-sibling, grandparent, grandchild, uncle, aunt, nephew, niece, or first cousin.
(2)
(a) Except as otherwise provided by court order, a guardian may not restrict or prohibit the right of an adult ward to associate with a relative or qualified acquaintance of the adult ward.
(b) If an adult ward is unable to express consent to visitation by a relative or a qualified acquaintance of the adult ward, the consent of the adult ward is presumed based on evidence of a prior relationship between the adult ward and the relative or qualified acquaintance of the adult ward.
(c) A guardian may not permit a relative or qualified acquaintance of an adult ward to associate with the adult ward:
(i) if a court order prohibits the association;
(ii) in a manner prohibited by court order; or
(iii) if the adult ward expresses a desire to not associate with the relative or qualified acquaintance.
(3) A guardian may, as part of the initial guardianship proceeding, petition the court to issue an order:
(a) prohibiting or placing conditions on association between an adult ward and a relative or qualified acquaintance of the adult ward; or
(b) granting the guardian the authority to prohibit or place conditions on association between an adult ward and a relative or qualified acquaintance of the adult ward.
(4) A guardian may, at any time after the initial guardianship proceeding:
(a) petition the court to issue an order described in Subsection (3) or to rescind or modify an order described in Subsection (3); or
(b) petition, subject to notice, the court on an emergency basis to issue a temporary order until further order of the court described in Subsection (3) or to rescind or modify an order described in Subsection (3).
(5) An adult ward, a relative of an adult ward, or a qualified acquaintance of an adult ward may, at any time after the initial guardianship proceeding, petition the court to rescind or modify an order described in Subsection (3).
(6) If a guardian violates Subsection (2), the adult ward, a relative of the adult ward, or a qualified acquaintance of the adult ward may, as applicable:
(a) file an ex parte motion to enforce an order or to obtain sanctions;
(b) seek an injunction to enforce compliance by the guardian with the law and any applicable court order; or
(c) petition the court to have the guardian removed as guardian of the adult ward.
(7) For a hearing on a petition filed under this section, a court:
(a) may appoint a court visitor to meet with the adult ward to determine the wishes of the adult ward regarding association;
(b) shall give notice and an opportunity to be heard to the guardian, the adult ward, and the relative or qualified acquaintance;
(c) shall preserve the right of the adult ward to be present at the hearing; and
(d) may order supervised visitation by the relative or qualified acquaintance before the hearing.
(8) A court may not enter an order prohibiting or placing restrictions on association between an adult ward and a relative or qualified acquaintance, unless the court finds by a preponderance of the evidence that:
(a) the adult ward desires the prohibition or restriction;
(b) if the adult ward had the capacity to make a knowing and intelligent decision regarding the association, the adult ward would prohibit the association or impose the restriction; or
(c) the prohibition or restriction is the least restrictive means necessary to protect the health or welfare of the adult ward.
(9) In making the determination described in Subsection (8), the court may consider any relevant evidence, including:
(a) the wishes of the adult ward, expressed during or before the guardianship;
(b) the history of the relationship between the adult ward and the relative or qualified acquaintance;
(c) any history of criminal activity, abuse, neglect, or violence by the relative or qualified acquaintance; or
(d) whether a protective order was ever issued against the relative or qualified acquaintance with respect to the adult ward.
(10) Except as provided in Subsection (11), the guardian shall have the burden of proof when:
(a) seeking an order prohibiting association or placing restrictions on association with a relative or qualified acquaintance of the adult ward;
(b) modifying an order to place additional prohibitions or restrictions on association with a relative or qualified acquaintance of the adult ward; or
(c) opposing an action described in Subsection (6)(a) or (b).
(11) The relative or qualified acquaintance shall have the burden of proof if the relative or qualified acquaintance is seeking to modify an order previously entered by a court under this section.
(12)
(a) If, in a proceeding under this section, the court finds that the petition was filed frivolously or in bad faith, the court shall award attorney fees to a party opposing the petition.
(b) If, in a proceeding under this section, the court finds that the guardian is in contempt of court or has acted frivolously or in bad faith in prohibiting or restricting association, the court:
(i) shall award attorney fees to the prevailing party; and
(ii) may impose a sanction, not to exceed $1,000, against the guardian.
(c) A court shall prohibit attorney fees awarded under this Subsection (12) from being paid by the adult ward or the adult ward's estate.
(1) The court where the ward resides has concurrent jurisdiction with the court which appointed the guardian or in which acceptance of an appointment by will or written instrument was filed over resignation, removal, accounting, and other proceedings relating to the guardianship.
(2) If the court located where the ward resides is not the court in which acceptance of appointment is filed, the court in which proceedings subsequent to appointment are commenced shall in all appropriate cases notify the other court, in this or another state, and after consultation with that court determine whether to retain jurisdiction or transfer the proceedings to the other court, whichever may be in the best interest of the ward. A copy of any order accepting a resignation or removing a guardian shall be sent to the court in which acceptance of appointment is filed.
Where a petition is filed for the appointment of a guardian for a mentally incompetent ward, a certificate of the administrator or his duly authorized representative, that such person has been rated incompetent by the veterans administration on examination in accordance with the laws and regulations governing such veterans administration and that the appointment of a guardian is a condition precedent to the payment of any money due such ward by the veterans administration, shall be prima facie evidence of the necessity for such appointment.
When a copy of any public record is required by the veterans administration to be used in determining the eligibility of any person to participate in benefits made available by the veterans administration, the official custodian of such public record shall without charge provide the applicant for such benefits or any person acting on behalf of the authorized representative of the veterans administration with a certified copy of such record.
(1)
(a) With regard to persons who are residents of the Utah State Developmental Center, the expedited process provided by this section may be applied to obtain a limited guardianship.
(b) For purposes of this section:
(i) "Limited guardianship" means a guardianship solely for the purpose of granting consent for medical care and for participation in approval of the ward's individualized program plan.
(ii) "Ward" means a resident of the Utah State Developmental Center who is the subject of guardianship proceedings under this section.
(2) Any person interested in the incapacitated person's welfare may file a petition for a finding of incapacity and appointment of a guardian. That person may seek the limited guardianship pro se, using the forms described in this section. Any fee for filing a petition for a limited guardianship shall be waived if the guardian is proceeding under this section.
(3) Upon filing a petition for limited guardianship under this section, the court shall set a date for hearing.
(4) The ward has the right to be present at the hearing and to see and hear all evidence relating to his condition.
(5) At that hearing the court shall review the affidavit of the superintendent of the Utah State Developmental Center, described in Subsection (11), and determine whether notice has been given to the appropriate persons described in Subsection (6).
(6) If the proposed guardian is not a parent or relative of the ward, personal notice shall be given to the ward's spouse, parents, and any adult children of the ward. Personal notice shall also be given to other persons as the court may direct.
(7) The court may, in its discretion, appoint a guardian ad litem to represent the ward in the hearing, and may request independent evaluation by a physician appointed by the court. The physician shall submit his findings to the court in writing.
(8) The court may grant the petition for a limited guardianship and sign the Order of Appointment if the court finds that:
(a) the appropriate parties have been given notice;
(b) the ward is incapacitated, based on the affidavit of the superintendent of the Utah State Developmental Center and any affidavit or testimony of persons entitled to receive notice or requested to present evidence under this section; and
(c) it is necessary and desirable to establish the guardianship.
(9) Venue for these expedited guardianship proceedings shall be the same as that described in Section 75-5-302.
(10) A petition for a limited guardianship shall include the following information:
(a) the interest of the petitioner;
(b) the name, age, residence, and address of the ward;
(c) verification that the ward is a resident of the Utah State Developmental Center;
(d) the name and address of the nearest relative of the ward; and
(e) the reason for appointment of guardianship.
(11) The petitioner shall also provide the court with an affidavit of the superintendent of the Utah State Developmental Center that includes the following information:
(a) that the ward is a resident of the Utah State Developmental Center;
(b) the date the ward was originally admitted to the Utah State Developmental Center;
(c) the diagnosis of the ward, including a description of the ward's disabling condition, the level of the ward's intellectual disability, and any medical or physical conditions of the ward;
(d) that the Utah State Developmental Center is certified as an intermediate care facility for people with an intellectual disability;
(e) that because of that certification, the Utah State Developmental Center receives financial participation from the United States Government for its operation and maintenance costs; and
(f) that federal regulations under Title XIX require the ward to have a guardian appointed for the sole purpose of giving consent for medical and dental care and of participation in and approval of the ward's individual program plan.
(12) If the court finds that, under the requirements of this section the proposed limited guardian should be appointed, it shall enter an order establishing that limited guardianship in substantially the following form:
The court finds that:
(a) appointment of a limited guardianship for (named ward) is necessary and desirable as a means of providing continuing care and supervision and to ensure his welfare;
(b) the ward is incapacitated;
(c) (named guardian) is appointed as the limited guardian of (named ward); and
(d) the guardianship is a limited guardianship solely for the purpose of:
(i) granting permission for medical and dental care on behalf of the ward; and
(ii) participation in the development and approval of the ward's individual program plan.
(13) Appointment of guardianship under this section places no additional responsibility or liability on the guardian with regard to the ward. The limited guardianship is solely for consent for medical care and approval of the ward's individualized program plan, and shall not be construed to increase or create liability or responsibility for the guardian.
(1) As used in this section:
(a) "Physician" means an individual:
(i) licensed as a physician under Title 58, Chapter 67, Utah Medical Practice Act; or
(ii) licensed as a physician under Title 58, Chapter 68, Utah Osteopathic Medical Practice Act.
(b) "Psychologist" means a person licensed under Title 58, Chapter 61, Psychologist Licensing Act, to engage in the practice of psychology as defined in Section 58-61-102.
(c) "Sole legal decision-making" means one parent or one individual having the legal right and responsibility to make major decisions for the minor child.
(2)
(a) Notwithstanding the other provisions of this part, a person who may be a guardian of an incapacitated person under Section 75-5-301 may initiate guardianship proceedings pursuant to this Subsection (2) for a minor who is at least 17 years, six months old and who is alleged to be incapacitated and request that a guardianship order take effect immediately on the day the minor turns 18 years old.
(b)
(i) The petitioner shall provide with the petition a written report of an evaluation of the minor by a physician or psychologist that meets the requirements of Subsection (2)(c).
(ii) If the evaluation is conducted within six months after the date the petition is filed with the court, the petitioner may ask in the petition that the court accept this report in lieu of ordering any additional evaluation and the court may grant the request.
(c) A written report filed pursuant to this section by a physician or psychologist acting within that person's scope of practice shall include the following information:
(i) a specific description of the physical, psychiatric, or psychological diagnosis of the person;
(ii) a comprehensive assessment listing any functional impairments of the alleged incapacitated person and an explanation of how and to what extent these functional impairments may prevent that person from receiving or evaluating information in making decisions or in communicating informed decisions, with or without assistance, regarding that person;
(iii) an analysis of the tasks of daily living the alleged incapacitated person is capable of performing independently or with assistance;
(iv) a list of the medications the alleged incapacitated person is receiving, the dosage of the medications, and a description of the effects each medication has on the person's behavior to the best of the declarant's knowledge;
(v) a prognosis for improvement in the alleged incapacitated person's condition and a recommendation for the most appropriate rehabilitation plan or care plan; and
(vi) other information the physician or psychologist considers appropriate.
(3)
(a) Notwithstanding the priorities in Section 75-5-311, if the petition for appointment of a guardian for the incapacitated person is filed pursuant to Subsection (2) or within two years after the day the incapacitated person turns 18 years old, unless the court finds the appointment to be contrary to the incapacitated person's best interest:
(i) the court shall appoint as the incapacitated person's guardian any person who, by court order, had sole legal decision-making of the incapacitated person when the incapacitated person attained 17 years, six months old; or
(ii) if two individuals had joint legal decision-making of the incapacitated person when the incapacitated person attained 17 years, six months old, the court shall appoint both individuals as the incapacitated person's coguardians.
(b) If under Subsection (3)(a) the court finds the appointment of an individual described in Subsection (3)(a) is contrary to the incapacitated person's best interest or if the individual is unwilling to be appointed or serve as a guardian, the court may apply the priorities in Section 75-5-311 in appointing a guardian.
(4)
(a) The court may appoint more than one person as the incapacitated person's coguardians if the appointment is required by Subsection (3) or the court finds that the appointment is in the incapacitated person's best interest.
(b) If the court appoints coguardians, the coguardians shall share legal decision-making for the incapacitated person and neither coguardian's rights or responsibilities are superior except as otherwise ordered by the court.
(1) Upon petition and after notice and hearing in accordance with the provisions of this part, the court may appoint a conservator or make other protective order for cause as follows:
(a) Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a minor if the court determines that a minor owns money or property that requires management or protection which cannot otherwise be provided, has or may have business affairs which may be jeopardized or prevented by minority, or that funds are needed for the minor's support and education and protection is necessary or desirable to obtain or provide funds.
(b) The provisions of Subsection (1)(a) may be applied to a person beyond minority up to age 21 under special circumstances as determined by the court.
(2) Appointment of a conservator or other protective order may be made in relation to the estate and affairs of a person if the court determines that the person:
(a) is unable to manage the person's property and affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance; and
(b) has property which will be wasted or dissipated unless proper management is provided or that funds are needed for the support, care, and welfare of the person or those entitled to be supported by the person and protection is necessary or desirable to obtain or provide funds.
(3) Appointment of a conservator or other protective order may not be denied solely on the basis that the person for whom the conservatorship or other protective order is sought has a valid power of attorney in effect.
After the service of notice in a proceeding seeking the appointment of a conservator or other protective order and until termination of the proceeding, the court in which the petition is filed has:
(1) Exclusive jurisdiction to determine the need for a conservator or other protective order until the proceedings are terminated;
(2) Exclusive jurisdiction to determine how the estate of the protected person which is subject to the laws of this state shall be managed, expended, or distributed to or for the use of the protected person or any of his dependents;
(3) Concurrent jurisdiction to determine the validity of claims against the person or estate of the protected person and his title to any property or claim.
Venue for proceedings under this part is:
(1) In the county in this state where the person to be protected resides, whether or not a guardian has been appointed in another place; or
(2) If the person to be protected does not reside in this state, in any county where he has property.
(1) The person to be protected, any person who is interested in his estate, affairs, or welfare, including his parent, guardian, or custodian, or any person who would be adversely affected by lack of effective management of his property and affairs may petition for the appointment of a conservator or for other appropriate protective order.
(2) The petition shall set forth to the extent known, the interest of the petitioner; the name, age, residence, and address of the person to be protected; the name and address of his guardian, if any; the name and address of his nearest relative known to the petitioner; a general statement of his property with an estimate of the value thereof, including any compensation, insurance, pension, or allowance to which he is entitled; and the reason why appointment of a conservator or other protective order is necessary. If the appointment of a conservator is requested, the petition also shall set forth the name and address of the person whose appointment is sought and the basis of his priority for appointment.
(1) On a petition for appointment of a conservator or other protective order, the person to be protected and his spouse or, if none, his parents, must be served personally with notice of the proceeding at least 10 days before the date of the hearing if they can be found within the state, or, if they cannot be found within the state, they must be given notice in accordance with Section 75-1-401. Waiver by the person to be protected is not effective unless he attends the hearing or, unless minority is the reason for the proceeding, waiver is confirmed in an interview with the visitor.
(2) Notice of a petition for appointment of a conservator or other initial protective order, and of any subsequent hearing, must be given to any person who has filed a request for notice under Section 75-5-406 and to interested persons and other persons as the court may direct. Except as otherwise provided in Subsection (1) above, notice shall be given in accordance with Section 75-1-401.
Any interested person who desires to be notified before any order is made in a protective proceeding may file with the registrar a request for notice subsequent to payment of any fee required by statute or court rule. The clerk shall mail a copy of the demand to the conservator if one has been appointed. A request is not effective unless it contains a statement showing the interest of the person making it and his address, or that of his attorney, and is effective only as to matters occurring after the filing. Any governmental agency paying or planning to pay benefits to the person to be protected is an interested person in protective proceedings.
(1) Upon receipt of a petition for appointment of a conservator or other protective order because of minority, the court shall set a date for the hearing on the matters alleged in the petition. If, at any time in the proceeding, the court determines that the interests of the minor are or may be inadequately represented, it may appoint an attorney to represent the minor, giving consideration to the choice of the minor if 14 years of age or older. An attorney appointed by the court to represent a minor has the powers and duties of a guardian ad litem.
(2) Upon receipt of a petition for appointment of a conservator or other protective order for reasons other than minority, the court shall set a date for hearing. Unless the person to be protected has already retained counsel, the court may appoint an attorney to represent the person to be protected who then has the powers and duties of a guardian ad litem.
(3) The legal representation of the protected person by an attorney shall terminate upon the appointment of a conservator, unless:
(a) there are separate guardianship proceedings still pending before the court subsequent to the appointment of a conservator;
(b) there is a timely filed appeal of the appointment of the conservator; or
(c) upon an express finding of good cause, the court orders otherwise.
(4) If the alleged disability is mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, or chronic intoxication, the court may direct that the person to be protected be examined by a physician designated by the court, preferably a physician who is not connected with any institution in which the person is a patient or is detained. The court may send a visitor to interview the person to be protected. The visitor may be a guardian ad litem or an officer or employee of the court.
(5) After hearing, upon finding that a basis for the appointment of a conservator or other protective order has been established, the court shall make an appointment or other appropriate protective order.
(1) The court has the following powers which may be exercised directly or through a conservator in respect to the estate and affairs of protected persons:
(a) While a petition for appointment of a conservator or other protective order is pending and after preliminary hearing and without notice to others, the court has power to preserve and apply the property of the person to be protected as may be required for the person's benefit or the benefit of the person's dependents.
(b) After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a minor without other disability, the court has all those powers over the estate and affairs of the minor which are or might be necessary for the best interests of the minor, the minor's family, and the members of the minor's household.
(c) After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a person for reasons other than minority, the court has, for the benefit of the person and members of the person's household, all the powers over the person's estate and affairs that the person could exercise if present and not under disability, except the power to make a will. These powers include the power to:
(i) make gifts;
(ii) convey or release the person's contingent and expectant interests in property including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety;
(iii) exercise or release the person's powers as personal representative, custodian for minors, conservator, or donee of a power of appointment;
(iv) enter into contracts;
(v) create revocable or irrevocable trusts of property of the estate that may extend beyond the person's disability or life;
(vi) exercise options of the person with a disability to purchase securities or other property;
(vii) exercise the person's rights to elect options and change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value;
(viii) exercise the person's right to an elective share in the estate of the person's deceased spouse; and
(ix) renounce any interest by testate or intestate succession or by inter vivos transfer.
(d) The court may exercise, or direct the exercise of, its authority to exercise or release powers of appointment of which the protected person is donee, to renounce interests, to make gifts in trust or otherwise exceeding 20% of any year's income of the estate, or to change beneficiaries under insurance and annuity policies, only if satisfied, after notice and hearing, that it is in the best interests of the protected person, and that the person either is incapable of consenting or has consented to the proposed exercise of power.
(2) An order made pursuant to this section determining that a basis for appointment of a conservator or other protective order exists has no effect on the capacity of the protected person.
(3) If the court elects to appoint a conservator under Subsection (1), the court may appoint a temporary conservator to serve until further order of the court. A temporary conservator, if appointed, has all of the powers and duties of a conservator as set forth in Sections 75-5-417, 75-5-418, 75-5-419, and 75-5-424.
(1) If it is established in a proper proceeding that a basis exists as described in Section 75-5-401 for affecting the property and affairs of a person, the court, without appointing a conservator, may authorize, direct, or ratify any transaction necessary or desirable to achieve any security, service, or care arrangement meeting the foreseeable needs of the protected person. Protective arrangements include, but are not limited to, payment, delivery, deposit, or retention of funds or property, sale, mortgage, lease, or other transfer of property, entry into an annuity contract, a contract for life care, a deposit contract, a contract for training and education, or addition to or establishment of a suitable trust.
(2) When it has been established in a proper proceeding that a basis exists as described in Section 75-5-401 for affecting the property and affairs of a person, the court, without appointing a conservator, may authorize, direct, or ratify any contract, trust, or other transaction relating to the protected person's financial affairs or involving his estate if the court determines that the transaction is in the best interests of the protected person.
(3) Before approving a protective arrangement or other transaction under this section, the court shall consider the interests of creditors and dependents of the protected person and, in view of his disability, whether the protected person needs the continuing protection of a conservator. The court may appoint a special conservator to assist in the accomplishment of any protective arrangement or other transaction authorized under this section who shall have the authority conferred by the order and serve until discharged by order after report to the court of all matters done pursuant to the order of appointment.
(1) The court may appoint an individual, or a corporation with general power to serve as trustee, as conservator of the estate of a protected person. The following are entitled to consideration for appointment in the order listed:
(a) a conservator, guardian of property, or other like fiduciary appointed or recognized by the appropriate court of any other jurisdiction in which the protected person resides;
(b) an individual or corporation nominated by the protected person if he is 14 or more years of age and has, in the opinion of the court, sufficient mental capacity to make an intelligent choice;
(c) the court shall appoint a conservator in accordance with the protected person's most recent nomination, unless the potential conservator is disqualified or the court finds other good cause why that person should not serve as conservator. The nomination shall be in writing and shall be signed by the person making the nomination. The nomination shall be in substantially the following form:
Nomination of Conservator
I, (Name), being of sound mind and not acting under duress, fraud, or other undue influence, do hereby nominate (Name, current residence, and relationship, if any, of the nominee) to serve as the conservator of my property in the event that after the date of this instrument I become incapacitated or have other need for protection.
Executed at __________________________________ (city, state)
on this ___________ day of _______________________________
______________________________ (Signature)
(d) a person who has been nominated by the protected person, by any means other than that described in Subsection (1)(c), if the protected person was 14 years of age or older when the nomination was executed and, in the opinion of the court, that person acted with sufficient mental capacity to make the nomination;
(e) the spouse of the protected person;
(f) an adult child of the protected person;
(g) a parent of the protected person, or a person nominated by the will of a deceased parent;
(h) any relative of the protected person with whom he has resided for more than six months prior to the filing of the petition;
(i) a person nominated by the person who is caring for him or paying benefits to him.
(2) A person in the priorities described in Subsection (1)(a), (e), (f), (g), or (h) may nominate in writing a person to serve in his stead. With respect to persons having equal priority, the court is to select the one who is best qualified of those willing to serve. The court, for good cause, may pass over a person having priority and appoint a person having less priority or no priority.
Subject to the provisions of Title 7, Financial Institutions Act, relating to the bonding requirements for corporate fiduciaries, the court shall require a conservator to furnish a bond conditioned upon faithful discharge of all duties of the trust according to law, with sureties as it shall specify, unless the court dispenses with such bond for good cause shown. Unless otherwise directed, the bond shall be in the amount of the aggregate capital value of the property of the estate in his control plus one year's estimated income minus the value of securities and cash deposited under arrangements requiring an order of the court for their removal and the value of any land which the fiduciary, by express limitation of power, lacks power to sell or convey without court authorization. The court, in lieu of sureties on a bond, may accept other security for the performance of the bond, including a pledge of securities or a mortgage of land.
(1) The following requirements and provisions apply to any bond required under Section 75-5-411:
(a) unless otherwise provided by the terms of the approved bond, sureties are jointly and severally liable with the conservator and with each other;
(b)
(i) by executing an approved bond of a conservator, the surety consents to the jurisdiction of the court which issued letters to the primary obligor in any proceeding pertaining to the fiduciary duties of the conservator and naming the surety as a party defendant; and
(ii) notice of the proceeding shall be delivered to the surety or mailed to him by registered or certified mail at his address as listed with the court where the bond is filed and to his address as then known to the petitioner;
(c) on petition of a successor conservator or any interested person, a proceeding may be initiated against a surety for breach of the obligation of the bond of the conservator; and
(d) the bond of the conservator is not void after the first recovery but may be proceeded against from time to time until the whole penalty is exhausted.
(2) No proceeding may be commenced against the surety on any matter as to which an action or proceeding against the primary obligor is barred by adjudication or limitation under this title.
By accepting appointment, a conservator submits personally to the jurisdiction of the court in any proceeding relating to the estate that may be instituted by any interested person. Notice of any proceeding shall be delivered to the conservator or mailed to him by registered or certified mail at his address as listed in the petition for appointment, or as thereafter reported to the court, and to his address as then known to the petitioner.
If not otherwise compensated for services rendered, any visitor, lawyer, physician, conservator, or special conservator appointed in a protective proceeding is entitled to reasonable compensation from the estate. If the court appoints the petitioner or the petitioner's nominee as conservator over the protected person, regardless of whether the nominee is specified in the moving petition or nominated during the proceedings, the petitioner is entitled to receive from the estate reasonable attorney fees and court costs incurred in bringing and defending the petition.
(1) The court may remove a conservator for good cause, upon notice and hearing, or accept the resignation of a conservator. After the death, resignation, or removal of a conservator, the court may appoint another conservator. A conservator so appointed succeeds to the title and powers of the preceding conservator.
(2) Before removing a conservator, accepting the resignation of a conservator, or ordering that a protected person's incapacity has terminated, the court shall follow the same procedures to safeguard the rights of the protected person as apply to a petition for appointment of a conservator as provided in Section 75-5-407. The court is not required to appoint an attorney to represent the ward if the case is uncontested and the protected person's capacity is not at issue.
(1) Any person interested in the welfare of a person for whom a conservator has been appointed may file a petition in the appointing court for an order:
(a) requiring bond or security or additional bond or security, or reducing bond;
(b) requiring an accounting for the administration of the conservatorship estate;
(c) directing distribution;
(d) removing the conservator and appointing a temporary or successor conservator; or
(e) granting other appropriate relief, including any relief available under Title 75B, Chapter 2, Uniform Trust Code, if the protected person is a grantor, settlor, trustor, or beneficiary of a trust.
(2) A conservator may petition the appointing court for instructions concerning the conservator's fiduciary responsibility.
(3) Upon notice and hearing the court may give appropriate instructions or make any appropriate order.
(1) A conservator shall act as a fiduciary and shall observe the standards of care as set forth in Section 75B-2-902.
(2)
(a) For all estates in excess of $50,000 excluding the residence owned by the ward, the conservator shall send a report with a full accounting to the court on an annual basis.
(b) For estates less than $50,000 excluding the residence owned by the ward, the conservator shall fill out an informal annual report and mail the report to the court.
(c) A report under Subsection (2)(a) or (b) shall include a statement regarding:
(i) all assets at the beginning and end of the reporting year;
(ii) any income received during the year;
(iii) any disbursements for the support of the ward;
(iv) any investments or trusts that are held for the ward's benefit;
(v) any expenditures or fees charged to the ward's estate; and
(vi) any other expenses incurred by the ward's estate.
(d) The Judicial Council shall approve the forms for the accounting reports described in Subsections (2)(a) and (b).
(e) An annual accounting report under Subsection (2)(a) or (b) shall be examined and approved by the court.
(3)
(a) Corporate fiduciaries are not required to fully petition the court, but shall submit their internal report annually to the court.
(b) A report under Subsection (3)(a) shall be examined and approved by the court.
(4) Upon a motion and after a hearing, the court may alter the frequency of, or the information included in, an accounting report provided to a ward in accordance with Subsection 75-5-301.5(3)(l).
(5)
(a) The court may impose a fine in an amount not to exceed $5,000, if, after receiving written notice of the failure to file and after a grace period of two months have elapsed, a conservator or corporate fiduciary:
(i) makes a substantial misstatement on filings of any required annual reports;
(ii) is guilty of gross impropriety in handling the property of the ward; or
(iii) willfully fails to file the report required by this section.
(b) The court may also order restitution of funds misappropriated from the estate of a ward.
(c) The penalty shall be paid by the conservator or corporate fiduciary and may not be paid by the estate.
(6) These provisions and penalties governing annual reports do not apply if the conservator is the parent of the ward.
(1) Within 90 days after appointment of a conservator, the conservator shall prepare and file with the appointing court a complete inventory of the estate of the protected person together with an oath or affirmation that it is complete and accurate so far as the conservator is informed. The estate of the protected person does not include the assets of a trust.
(2) The conservator shall provide a copy of the inventory to the protected person if the person:
(a) can be located;
(b) has attained the age of 14 years; and
(c) has sufficient mental capacity to understand these matters, and to any parent or guardian with whom the protected person resides.
(3) The conservator shall keep suitable financial records and produce them upon the request of any interested person.
(1) Every conservator must account to the court for the administration of the estate upon resignation or removal and at any other times the court may direct.
(2) On termination of the protected person's minority or disability, a conservator may account to the court, the former protected person, or the personal representative of the protected person.
(3) Subject to appeal or vacation within the time permitted, an order, made upon notice and hearing, allowing an intermediate account of a conservator, adjudicates as to any liabilities concerning the matters considered in connection with the protected person's account, and an order, made upon notice and hearing, allowing a final account adjudicates as to all previously unsettled liabilities of the conservator to the protected person or the protected person's successors relating to the conservatorship.
(4) In connection with any account, the court may require a conservator to submit to a physical check of the estate in the conservator's control, to be made in any manner the court may specify.
(1) The appointment of a conservator vests in the conservator title as fiduciary to all property of the protected person, presently held or thereafter acquired, not including the assets of a trust, including title to any property previously held for the protected person by custodians or attorneys-in-fact, except for property held pursuant to any uniform gifts to minors act or provisions.
(2) The appointment of a conservator is not a transfer or alienation within the meaning of general provisions of any federal or state statute or regulation, insurance policy, pension plan, contract, will, or trust instrument imposing restrictions upon or penalties for transfer or alienation by the protected person of any rights or interest, but this section does not restrict the ability of persons to make specific provision by contract or dispositive instrument relating to a conservator.
(1)
(a) Letters of conservatorship are evidence of transfer of the assets of a protected person to the conservator.
(b) An order terminating a conservatorship is evidence of transfer of the assets of the estate from the conservator to the protected person or the protected person's successors.
(c) Subject to the requirements of general statutes governing the filing or recordation of documents of title to land or other property, letters of conservatorship and orders terminating conservatorships may be filed or recorded to give record notice of title as between the conservator and the protected person.
(2) A person who refuses to accept the authority of a conservator to transact business with the assets of the protected person after receiving a certified copy of letters of conservatorship is liable for costs, expenses, attorney fees, and damages if the court determines that the person did not act in good faith in refusing to accept the authority of the conservator.
Any sale or encumbrance to a conservator, his spouse, agent, or attorney, or any corporation or trust in which he has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest, is voidable unless the transaction is approved by the court after notice to interested persons and others as directed by the court.
A person who in good faith either assists a conservator or deals with him for value in any transaction, other than those requiring a court order as provided in Section 75-5-408, is protected as if the conservator properly exercised the power. The fact that a person knowingly deals with a conservator does not alone require the person to inquire into the existence of a power or the propriety of its exercise, except that restrictions on powers of conservators which are endorsed on letters as provided in Section 75-5-426 are effective as to third persons. A person is not bound to see to the proper application of estate assets paid or delivered to a conservator. The protection here expressed extends to instances in which some procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters. The protection here expressed is not by substitution for that provided by comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries.
(1) A conservator has all of the powers conferred in this chapter and any additional powers conferred by law on trustees in this state. In addition, a conservator of the estate of an unmarried minor as to whom no one has parental rights, has the duties and powers of a guardian of a minor described in Section 75-5-209 until the minor attains majority or marries, but the parental rights so conferred on a conservator do not preclude appointment of a guardian as provided by Part 2, Guardians of Minors.
(2)
(a) A conservator has the power to compel the production of the protected person's estate documents, including the protected person's will, trust, power of attorney, and any advance health care directives.
(b) If a guardian is also appointed for the ward, the conservator shall share with the guardian the estate documents the conservator receives.
(3) A conservator has power without court authorization or confirmation to invest and reinvest funds of the estate as would a trustee.
(4) A conservator, acting reasonably in efforts to accomplish the purpose for which the conservator was appointed, may use the funds of the estate and act without court authorization or confirmation, to:
(a) collect, hold, and retain assets of the estate, including land in another state, until, in the conservator's judgment, disposition of the assets should be made, and the assets may be retained even though they include an asset in which the conservator is personally interested;
(b) receive additions to the estate;
(c) continue or participate in the operation of any business or other enterprise;
(d) acquire an undivided interest in an estate asset in which the conservator, in any fiduciary capacity, holds an undivided interest;
(e) invest and reinvest estate assets in accordance with Subsection (3);
(f) deposit estate funds in a bank including a bank operated by the conservator;
(g) acquire or dispose of an estate asset, including land in another state, for cash or on credit, at public or private sale; and to manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset;
(h) make ordinary or extraordinary repairs or alterations in buildings or other structures, demolish any improvements, and raze existing or erect new party walls or buildings;
(i)
(i) subdivide, develop, or dedicate land to public use;
(ii) make or obtain the vacation of plats and adjust boundaries;
(iii) adjust differences in valuation on exchange or partition by giving or receiving considerations; and
(iv) dedicate easements to public use without consideration;
(j) enter for any purpose into a lease as lessor or lessee with or without option to purchase or renew for a term within or extending beyond the term of the conservatorship;
(k) enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;
(l) grant an option involving disposition of an estate asset or take an option for the acquisition of any asset;
(m) vote a security, in person or by general or limited proxy;
(n) pay calls, assessments, and any other sums chargeable or accruing against or on account of securities;
(o)
(i) sell or exercise stock subscription or conversion rights; and
(ii) consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise;
(p) hold a security in the name of a nominee or in other form without disclosure of the conservatorship so that title to the security may pass by delivery, but the conservator is liable for any act of the nominee in connection with the stock so held;
(q) insure the assets of the estate against damage or loss and the conservator against liability with respect to third persons;
(r)
(i) borrow money to be repaid from estate assets or otherwise; and
(ii) advance money for the protection of the estate or the protected person, and for all expenses, losses, and liabilities sustained in the administration of the estate or because of the holding or ownership of any estate assets, and the conservator has a lien on the estate as against the protected person for advances so made;
(s)
(i) pay or contest any claim;
(ii) settle a claim by or against the estate or the protected person by compromise, arbitration, or otherwise; and
(iii) release, in whole or in part, any claim belonging to the estate to the extent that the claim is uncollectible;
(t) pay taxes, assessments, compensation of the conservator, and other expenses incurred in the collection, care, administration, and protection of the estate;
(u) allocate items of income or expense to either estate income or principal, as provided by law, including creation of reserves out of income for depreciation, obsolescence, or amortization, or for depletion in mineral or timber properties;
(v) pay any sum distributable to a protected person or dependent without liability to the conservator, by paying the sum to the distributee or by paying the sum for the use of the distributee either to the distributee's guardian, or if none, to a relative or other person with custody of the person;
(w)
(i) employ persons, including attorneys, auditors, investment advisors, or agents, even though they are associated with the conservator, to advise or assist in the performance of administrative duties;
(ii) act upon a recommendation made by a person listed in Subsection (4)(w)(i) without independent investigation; and
(iii) instead of acting personally, employ one or more agents to perform any act of administration, whether or not discretionary;
(x) prosecute or defend actions, claims, or proceedings in any jurisdiction for the protection of estate assets and of the conservator in the performance of the conservator's duties;
(y) act as a qualified beneficiary of any trust in which the protected person is a qualified beneficiary; and
(z) execute and deliver the instruments that will accomplish or facilitate the exercise of the powers vested in the conservator.
(1) A conservator may expend or distribute income or principal of the estate without court authorization or confirmation for the support, education, care, or benefit of the protected person and the protected person's dependents in accordance with the following principles:
(a) The conservator is to consider recommendations relating to the appropriate standard of support, education, and benefit for the protected person made by a parent or guardian, if any. A conservator may not be surcharged for sums paid to persons or organizations actually furnishing support, education, or care to the protected person pursuant to the recommendations of a parent or guardian of the protected person unless the conservator knows that the parent or guardian is deriving personal financial benefit therefrom, including relief from any personal duty of support, or unless the recommendations are clearly not in the best interests of the protected person.
(b) The conservator is to expend or distribute sums reasonably necessary for the support, education, care or benefit of the protected person with due regard to:
(i) the size of the estate, the probable duration of the conservatorship and the likelihood that the protected person, at some future time, may be fully able to manage the protected person's affairs and the estate which has been conserved for the protected person;
(ii) the accustomed standard of living of the protected person and members of the protected person's household; and
(iii) other funds or sources used for the support of the protected person.
(c) The conservator may expend funds of the estate for the support of persons legally dependent on the protected person and others who are members of the protected person's household who are unable to support themselves and who are in need of support.
(d) Funds expended under this Subsection (1) may be paid by the conservator to any person, including the protected person to reimburse for expenditures which the conservator might have made, or in advance for services to be rendered to the protected person when it is reasonable to expect that they will be performed and where advance payments are customary or reasonably necessary under the circumstances.
(2) If the estate is ample to provide for the purposes implicit in the distributions authorized by Subsection (1), a conservator for a protected person other than a minor has power to make gifts to charity and other objects as the protected person might have been expected to make, in amounts which do not exceed in total for any year 20% of the income from the estate.
(3) When a person who is a minor and who has not been adjudged to have a disability under Subsection 75-5-401(2)(a) attains the age of majority, the person's conservator, after meeting all prior claims and expenses of administration, shall pay over and distribute all funds and properties to the former protected person as soon as possible.
(4) When the conservator is satisfied that a protected person's disability, other than minority, has ceased, the conservator, after meeting all prior claims and expenses of administration, shall pay over and distribute all funds and properties to the former protected person as soon as possible.
(5) If a protected person dies, the conservator:
(a) shall:
(i) deliver to the court for safekeeping any will of the deceased protected person that may have come into the conservator's possession;
(ii) inform the personal representative or a beneficiary named in the will that the conservator has done so; and
(iii) retain the estate for delivery to a duly appointed personal representative of the decedent or other persons entitled to it;
(b) may continue to pay the obligations lawfully due against the estate and to protect the estate from waste, injury, or damages that might reasonably be foreseeable; and
(c) may apply to exercise the powers and duties of a personal representative so that the conservator may proceed to administer and distribute the decedent's estate without additional or further appointment, provided that at least 40 days from the death of the protected person no other person has been appointed personal representative and no application or petition for appointment is before the court.
(6) Upon application for an order granting the powers of a personal representative to a conservator as provided in Subsection (5)(c) and after notice as provided in Section 75-3-310, the court may order the conferral of the power upon determining that there is no objection and endorse the letters of the conservator to note that the formerly protected person is deceased and that the conservator has acquired all of the powers and duties of a personal representative. The making and entry of an order under this section shall have the effect of an order of appointment of a personal representative as provided in Section 75-3-308 and Chapter 3, Part 6, Personal Representative - Appointment, Control, and Termination of Authority, Part 7, Duties and Powers of Personal Representatives, Part 8, Creditors' Claims, Part 9, Special Provisions Relating to Distribution, and Part 10, Closing Estates, except that the estate in the name of the conservator, after administration, may be distributed to the decedent's successors without prior retransfer to the conservator as personal representative.
Subject to the restrictions of Subsection 75-5-408(1)(d), the court may confer on a conservator at the time of appointment or later, in addition to the powers conferred on him by Sections 75-5-424 and 75-5-425, any power which the court itself could exercise under Subsections 75-5-408(1)(b) and 75-5-408(1)(c). The court may, at the time of appointment or later, limit the powers of a conservator otherwise conferred by Sections 75-5-424 and 75-5-425, or previously conferred by the court, and may at any time relieve him of any limitation. If the court limits any power conferred on the conservator by Section 75-5-424 or 75-5-425, the limitation shall be endorsed upon his letters of appointment.
In investing the estate, and in selecting assets of the estate for distribution under Subsections 75-5-425(1) and (2), in utilizing powers of revocation or withdrawal available for the support of the protected person, and exercisable by the conservator or the court, the conservator and the court should take into account any known estate plan of the protected person, including his will, any revocable trust of which he is settlor, and any contract, transfer, or joint ownership arrangement with provisions for payment or transfer of benefits or interests at his death to another or others which he may have originated. The conservator may examine the will of the protected person.
(1) A conservator must pay from the estate all just claims against the estate and against the protected person arising before or after the conservatorship upon their presentation and allowance. A claim may be presented by either of the following methods:
(a) The claimant may deliver or mail to the conservator a written statement of the claim indicating its basis, the name and address of the claimant, and the amount claimed.
(b) The claimant may file a written statement of the claim, in the form prescribed by rule, with the clerk of the court and deliver or mail a copy of the statement to the conservator. A claim is considered presented on the first to occur of receipt of the written statement of claim by the conservator, or the filing of the claim with the court.
(2) A presented claim is allowed if it is not disallowed by written statement mailed by the conservator to the claimant within 60 days after its presentation. The presentation of a claim tolls any statute of limitation relating to the claim until 30 days after its disallowance.
(3) A claimant whose claim has not been paid may petition the court for determination of his claim at any time before it is barred by the applicable statute of limitation, and, upon due proof, procure an order for its allowance and payment from the estate. If a proceeding is pending against a protected person at the time of appointment of a conservator or is initiated against the protected person thereafter, the moving party must give notice of the proceeding to the conservator if the outcome is to constitute a claim against the estate.
(4) If it appears that the estate in conservatorship is likely to be exhausted before all existing claims are paid, preference is to be given to prior claims for the care, maintenance, and education of the protected person or his dependents and existing claims for expenses of administration.
(1) Unless otherwise provided in the contract, a conservator is not individually liable on a contract properly entered into in his fiduciary capacity in the course of administration of the estate unless he fails to reveal his representative capacity and identify the estate in the contract.
(2) The conservator is individually liable for obligations arising from ownership or control of property of the estate or for torts committed in the course of administration of the estate only if he is personally at fault.
(3) Claims based on contracts entered into by a conservator in his fiduciary capacity, on obligations arising from ownership or control of the estate, or on torts committed in the course of administration of the estate may be asserted against the estate by proceeding against the conservator in his fiduciary capacity, whether or not the conservator is individually liable therefor.
(4) Any question of liability between the estate and the conservator individually may be determined in a proceeding for accounting, surcharge, indemnification, or other appropriate proceeding or action.
The protected person, his personal representative, the conservator, or any other interested person may petition the court to terminate the conservatorship. A protected person seeking termination is entitled to the same rights and procedures as in an original proceeding for a protective order. The court, upon determining after notice and hearing that the minority or disability of the protected person has ceased, may terminate the conservatorship. Upon termination, title to assets of the estate passes to the former protected person or to his successors, subject to provision in the order for expenses of administration or to conveyances from the conservator to the former protected persons or his successors to evidence the transfer.
(1) Any person indebted to a protected person, or having possession of property or of an instrument evidencing a debt, stock, or chose in action belonging to a protected person, may pay or deliver to a conservator, guardian of the estate, or other like fiduciary appointed by a court of the state of residence of the protected person, upon being presented with proof of his appointment and an affidavit made by him or on his behalf stating:
(a) That no protective proceeding relating to the protected person is pending in this state; and
(b) That the foreign conservator is entitled to payment or to receive delivery.
(2) If the person to whom the affidavit is presented is not aware of any protective proceeding pending in this state, payment or delivery in response to the demand and affidavit discharges the debtor or possessor.
If no local conservator has been appointed and no petition in a protective proceeding is pending in this state, a domiciliary foreign conservator may file with a court in this state in a county in which property belonging to the protected person is located, authenticated copies of his appointment and of any official bond he has given. Thereafter, he may exercise as to assets in this state all powers of a local conservator and may maintain actions and proceedings in this state subject to any conditions imposed upon nonresident parties generally.
Upon petition made by any interested person against anyone suspected of having concealed, embezzled, or conveyed away any of the money, goods or effects, or an instrument in writing, belonging to the protected person, ward, or to his estate, the court may cite the suspected person to appear before it and may examine and proceed with him on the charge; and if on such examination it appears that he has wrongful possession of any such property, the court may order the delivery of the same to the conservator or guardian.
As used in this part:
(1)
(a) "Individual with a severe intellectual disability" means an adult who:
(i) has lifelong functional limitations to the extent that the adult is incapacitated; and
(ii) has received a diagnosis from a physician or psychologist of a severe intellectual disability that has existed since the adult was a minor.
(b) "Individual with a severe intellectual disability" does not include an adult who had capacity at one time or may regain capacity.
(2) "Petitioner" means the person who brings a petition for guardianship under this part.
(3) "Physician" means an individual:
(a) licensed as a physician under Title 58, Chapter 67, Utah Medical Practice Act; or
(b) licensed as a physician under Title 58, Chapter 68, Utah Osteopathic Medical Practice Act.
(4) "Psychologist" means an individual licensed under Title 58, Chapter 61, Psychologist Licensing Act, to engage in the practice of psychology as defined in Section 58-61-102.
(5) "Remotely" means a participant will appear by video conference or other electronic means approved by the court.
(6) "Respondent" means the adult who is alleged to be an individual with a severe intellectual disability.
(1) This part only applies to a guardianship for an adult for whom there is a signed letter or report from a physician or psychologist that indicates that the adult is an individual with a severe intellectual disability.
(2) Except as provided in Subsection (4) or another provision of this part, the provisions of Part 3, Guardians of Incapacitated Persons, do not apply to the guardianship of an adult described in Subsection (1).
(3) This part does not apply to a guardianship for an adult if the court finds that the adult is not an individual with a severe intellectual disability.
(4) Part 3, Guardians of Incapacitated Persons, applies to a guardianship for an adult who is not an individual with a severe intellectual disability.
(1) An adult, who is allegedly incapacitated and for whom there is a signed letter or report from a physician or psychologist that indicates that the adult is an individual with a severe intellectual disability, has the right to:
(a) except as provided in Section 75-5-606, be represented by counsel before a guardianship is imposed and have counsel represent the adult during the guardianship proceeding;
(b) receive a copy of all documents filed in a guardianship proceeding;
(c) have a relative, physician, psychologist, physician assistant, or any interested person speak about or raise any issue of concern on behalf of the adult during the guardianship proceeding;
(d) receive information about guardianships from the court; and
(e) be treated with respect and dignity.
(2) Except as otherwise provided by this part, if a court orders a full guardianship for an adult and enters an order of appointment that specifies that the adult is an individual with a severe intellectual disability, the adult has the right to:
(a) have a relative, physician, psychologist, physician assistant, or any interested person speak about or raise any issue of concern on behalf of the adult in any court hearing about the guardianship;
(b) receive a copy of all documents filed in court regarding the guardianship;
(c) receive information about guardianships from the court;
(d) ask questions and express concerns or complaints about a guardian and the actions of a guardian to the court;
(e) to the extent practicable, receive timely, effective, and appropriate health care and medical treatment that does not violate the adult's rights;
(f) have all services provided by a guardian at a reasonable rate of compensation;
(g) have a court review any request for payment by a guardian to avoid excessive or unnecessary fees or duplicative billing; and
(h) receive prudent financial management of the adult's property, including Supplemental Security Income and Supplemental Security Disability Insurance.
(3) If the court enters an order for a limited guardianship for an adult or fails to specify in the order of appointment as to whether the adult is an individual with a severe intellectual disability, the adult has the rights of an incapacitated person described in Section 75-5-301.5.
(1) A person interested in an adult's welfare may petition a court for a finding that:
(a) the adult is an individual with a severe intellectual disability; and
(b) the appointment of a guardian is necessary or desirable as a means of providing continuing care to the adult.
(2) Notwithstanding Title 78B, Chapter 3a, Venue for Civil Actions, a petitioner shall bring a petition described in Subsection (1) in the county where:
(a) the respondent resides or is present; or
(b) if the respondent is admitted to an institution by an order of a court, the court is located.
(3)
(a) Upon the filing of a petition under Subsection (1), the court shall set a date for a hearing on the issue of whether the respondent is an individual with a severe intellectual disability.
(b) The court shall, while preserving the due process rights of the respondent, conduct the hearing remotely in accordance with Utah Rules of Civil Procedure, Rule 87, unless the court finds good cause under Utah Rules of Civil Procedure, Rule 87, to not conduct the hearing remotely.
(4) Except as provided in Section 75-5-606, the respondent is entitled to be represented by counsel, present evidence, and cross-examine witnesses, including a physician, psychologist, physician assistant, or court visitor appointed under Section 75-5-607.
(5) The court shall determine the issue of whether the respondent is an individual with a severe intellectual disability at a closed hearing, without a jury, if the respondent or the respondent's counsel requests so.
(6) The respondent shall:
(a) be present at any hearing on the petition; or
(b) hear all evidence bearing upon the respondent's condition.
(7) If the petitioner requests a waiver of the presence of the respondent, the court shall order an investigation by a court visitor in accordance with Section 75-5-607.
(1) Upon a petition for the appointment or removal of a guardian for an adult who is an individual with a severe intellectual disability, or is alleged to be an individual with a severe intellectual disability, other than the appointment of an emergency guardian or temporary suspension of a guardian, the petitioner shall give notice of the petition to:
(a) the adult and the adult's parents;
(b) any person who is serving as guardian or conservator or who has care and custody of the adult;
(c) if the petitioner is unable to notify the adult's parents under Subsection (1)(a), at least one of the closest adult relatives of the individual if any can be found; and
(d) Adult Protective Services if Adult Protective Services has received a referral under Title 26B, Chapter 6, Part 2, Abuse, Neglect, or Exploitation of a Vulnerable Adult, concerning the welfare of the adult or concerning the guardian or conservator or proposed guardian or conservator.
(2) A notice described in Subsection (1) shall:
(a) be in plain language and large type and in a form with final approval of the Judicial Council;
(b) indicate the time and place of the hearing, the possible adverse consequences to the adult described in Subsection (1) who is receiving notice of rights, a list of rights, including the adult's own or court appointed counsel, and a copy of the petition;
(c) be served personally on:
(i) the adult described in Subsection (1); and
(ii) the adult's parents if the adult's parents can be found within the state; and
(d) be served in accordance with Section 75-1-401 on:
(i) the adult's parents if the adult's parents cannot be found within the state; and
(ii) any other person that is required to be served notice under Subsection (1).
(1)
(a) Except as provided in Subsection (2), the court shall appoint an attorney to represent a respondent on a petition for guardianship unless the respondent has counsel of the respondent's own choice.
(b) The respondent shall pay the costs of an attorney appointed under Subsection (1)(a) unless the respondent or the respondent's parents are indigent.
(2) Counsel for a respondent is not required under Subsection (1) if:
(a) the respondent is the child, grandchild, or sibling of the petitioner;
(b) the value of the respondent's entire estate does not exceed $2,000 as established by an affidavit from the petitioner;
(c) the respondent appears in court with the petitioner in-person or remotely;
(d) the respondent is given the opportunity to communicate, to the extent possible, the respondent's acceptance of the appointment of a guardian; and
(e) the court is satisfied that counsel is not necessary in order to protect the interests of the respondent.
(3) If the court determines that a petition brought under this part is without merit, the petitioner shall pay any attorney fees and court costs.
(4) The legal representation of the respondent by an attorney shall terminate upon the appointment of a guardian, unless:
(a) there are separate conservatorship proceedings still pending before the court subsequent to the appointment of a guardian;
(b) there is a timely filed appeal of the appointment of the guardian or the determination that the respondent is an individual with a severe intellectual disability; or
(c) the court orders otherwise upon an express finding of good cause.
(1)
(a) The court may appoint a physician, a psychologist, or a physician assistant to examine the respondent.
(b) If the court appoints a physician. a psychologist, or a physician assistant under Subsection (1)(a), the physician, psychologist, or physician assistant shall submit a report in writing to the court.
(2) The court may appoint a court visitor to:
(a) interview the individual seeking appointment as guardian of the respondent;
(b) visit the present place of abode of the respondent and the place proposed where the respondent will be detained or reside if a guardian is appointed; or
(c) conduct other investigations or observations as directed by the court.
(1)
(a) If a respondent does not have a guardian and an emergency exists, the court may, without notice, appoint an emergency guardian for the respondent for a specified period not to exceed 30 days pending notice and a hearing.
(b) The court may, without notice, appoint an emergency guardian for an individual with a severe intellectual disability for a specified period not to exceed 30 days pending notice and a hearing if:
(i) an appointed guardian for the individual is not effectively performing the guardian's duties; and
(ii) the court further finds that the welfare of the respondent or individual requires immediate action.
(c) Upon request by an interested person after the appointment of an emergency guardian under Subsection (1)(a) or (b), the court shall hold a hearing within 14 days in accordance with Section 75-5-604.
(2) If the court finds good cause after notice and hearing under Sections 75-5-604 and 75-5-605, the court may:
(a) appoint a temporary guardian;
(b) convert an emergency guardian to a temporary guardian if an emergency guardian has been appointed under Subsection (1); or
(c) appoint a different person as temporary guardian to replace an emergency guardian appointed under Subsection (1).
(3) Unless the respondent or individual with a severe intellectual disability has already obtained or been appointed counsel or an attorney is not required as described in Section 75-5-606, the court shall appoint an attorney to represent the respondent or individual.
(4) Until a full hearing and further order of the court, the temporary guardian:
(a) shall be charged with the care and custody of the respondent or individual with a severe intellectual disability; and
(b) may not permit the respondent or individual with a severe intellectual disability to be removed from the state.
(5) The authority of any permanent guardian previously appointed by the court is suspended so long as a temporary guardian has authority.
(6) A temporary guardian may be removed at any time, and shall obey all orders and make any reports required by the court.
(7) A temporary guardian has all of the powers and duties of a permanent guardian as set forth in Section 75-5-611.
(1) The court may appoint a guardian for a respondent if the court finds:
(a) the respondent is an individual with a severe intellectual disability; and
(b) the appointment of a guardian is necessary or desirable as a means of providing continuing care to the respondent.
(2) If the court appoints a guardian as described in Subsection (1), the court shall:
(a) appoint a guardian for the respondent in accordance with Section 75-5-610;
(b) prefer a full guardianship for the respondent; and
(c) specify in the order of appointment that:
(i) the respondent is an individual with a severe intellectual disability; and
(ii) the respondent does not have capacity to execute or consent to any contract or written agreement.
(3)
(a) If the court orders a limited guardianship for a respondent:
(i) the respondent is entitled to the rights described in Section 75-5-301.5 for an incapacitated person; and
(ii) the court shall state the limitations of the guardianship and the rights to which the respondent is entitled in the order of appointment.
(4) If the court grants a guardian with the power to make or assist with health care decisions for a respondent, the court shall include in the order of appointment the name of any interested person whom the guardian must notify of any significant health care or treatment received by the individual.
(5)
(a) By accepting an appointment, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person or any person interested in the welfare of the respondent.
(b) Notice of any proceeding shall be delivered to the guardian or mailed to the guardian by ordinary mail at the guardian's address as listed in the court records and to the guardian's address as known to the petitioner at the time of the appointment.
(6) If the court orders a limited guardianship for an individual with a severe intellectual disability, the guardian has the same duties, powers, and rights described in Section 75-5-312 for a guardian of an incapacitated person.
(7) If the court orders a full guardianship for an individual with a severe intellectual disability, the guardian has the duties, powers, and rights described in Section 75-5-611.
(1) Unless the court finds there is good cause that the person should not serve as guardian, the court shall appoint a guardian for an individual with a severe intellectual disability in the following order of priority:
(a) a parent of the individual with a severe intellectual disability;
(b) an adult sibling of the individual with a severe intellectual disability;
(c) a grandparent of the individual with a severe intellectual disability;
(d) an adult relative of the individual with a severe intellectual disability if the individual has resided with the relative for more than 180 days before the day on which the petition was filed;
(e) one of the closest adult relatives of the individual if any can be found;
(f) a specialized care professional, so long as the specialized care professional does not:
(i) profit financially or otherwise from or receive compensation for acting in that capacity, except for the direct costs of providing guardianship or conservatorship services; or
(ii) otherwise have a conflict of interest in providing those services;
(g) a competent person or suitable institution; or
(h) the Office of Public Guardian described in Title 26B, Chapter 6, Part 3, Office of Public Guardian.
(2) The court may appoint more than one person as guardian for the individual with a severe intellectual disability.
(3) If the court appoints coguardians for an individual with a severe intellectual disability:
(a) the coguardians shall share legal decision-making for the individual with a severe intellectual disability; and
(b) each coguardian's rights and responsibilities are not superior to the other coguardian's rights and responsibilities unless the court designates that a coguardian's rights and responsibilities are superior.
(1) This section only applies to a guardian who is appointed by a court for an individual with a severe intellectual disability in a full guardianship.
(2)
(a) A guardian shall diligently and in good faith carry out the specific duties, powers, and rights that the guardian is granted under this section and in the order of appointment entered under Section 75-5-609.
(b) A guardian is not liable to a third person for acts of the individual with a severe intellectual disability solely by reason of the guardian having the same powers, rights, and duties as a parent with respect to the parent's unemancipated minor child.
(3)
(a) In carrying out duties, powers, and rights that a guardian is granted, the guardian shall encourage the individual with a severe intellectual disability, to the extent practicable, to participate in decisions, exercise self-determination, act on the individual's own behalf, and develop the skills to manage the individual's personal affairs.
(b) To the extent known, a guardian shall consider the expressed desires, preferences, and personal values of the individual with a severe intellectual disability when making decisions about the individual.
(4) A guardian is entitled to custody of the individual with a severe intellectual disability to the extent that the custody is consistent with the terms of any order by a court relating to the detention and commitment of the individual.
(5) If a guardian has custody of the individual with a severe intellectual disability under Subsection (4), the guardian:
(a) may establish the individual's place of residence within, or outside of, this state; and
(b) shall provide for the care, comfort, and maintenance of the individual and arrange for the individual's training and education whenever appropriate.
(6) Without regard to the custodial rights of the individual with a severe intellectual disability, a guardian shall take reasonable care of the individual's clothing, furniture, vehicles, and other personal effects and commence protective proceedings if other property of the individual is in need of protection.
(7) A guardian of the individual with a severe intellectual disability may:
(a) give the consent or approval that may be necessary to enable the individual to receive medical or other professional care, counsel, treatment, or service;
(b) restrict or prohibit the individual's association with relatives and acquaintances if the guardian deems that the association is harmful to the individual; and
(c) restrict the individual from taking or consuming:
(i) a drug, as defined in Section 58-17b-102, that has not been prescribed to the individual;
(ii) a tobacco product, an electronic cigarette product, or a nicotine product, as those terms are defined in Section 76-9-1101;
(iii) alcohol;
(iv) pornography; or
(v) a legal substance or activity that would be harmful to the health and wellbeing of the individual.
(8)
(a) A guardian of the individual with a severe intellectual disability shall:
(i) notify any interested person named in the order of appointment under Subsection 75-5-609(4) of any significant health care or treatment received by the individual;
(ii) immediately notify persons who request notification and are not restricted in associating with the individual of:
(A) the individual's admission to a hospital for three or more days or to a hospice program;
(B) the individual's death; or
(C) the arrangements for the disposition of the individual's remains;
(iii) immediately notify all interested persons if the guardian reasonably believes that the individual's death is likely to occur within the next 10 days, based on:
(A) the guardian's own observations; or
(B) information from the individual's physician or other medical care providers; and
(iv) provide the court with a current address of an individual if the guardian moves the individual.
(b) For purposes of this Subsection (8), an interested person is a person required to receive notice in guardianship proceedings as described in Section 75-5-605.
(9) If a conservator has not been appointed for the estate of the individual with a severe intellectual disability, a guardian may:
(a) institute proceedings to compel any person under a duty to support the individual or to pay sums for the welfare of the individual to perform that duty;
(b) receive money and tangible property deliverable to the individual and apply the money and property for support, care, and education of the individual, except that:
(i) the guardian may not use funds from the individual's estate for room and board that the guardian or the guardian's family member or relative has furnished unless a charge for the service is approved by order of the court made upon notice to at least one adult relative in the nearest degree of kinship to the individual in which there is an adult; and
(ii) the guardian shall manage the individual's money and property in a prudential manner to ensure that the individual qualifies for disability benefits.
(10)
(a) If a conservator has not been appointed for the estate of the individual with a severe intellectual disability, and except as provided in Subsection (13)(b), a guardian shall:
(i) send a report with a full account to the court on an annual basis if the individual's estate is in excess of $50,000 excluding the residence, if any, owned by the individual; or
(ii) fill out an informal annual report and mail the report to the court if the individual's estate is less than $50,000 excluding the residence, if any, owned by the individual.
(b) An accounting report under Subsection (10)(a) shall include a statement regarding:
(i) all assets at the beginning and end of the reporting year;
(ii) any income received during the year;
(iii) any disbursements for the support of the individual with a severe intellectual disability;
(iv) any investments or trusts that are held for the individual's benefit;
(v) any expenditures or fees charged to the individual's estate; and
(vi) any other expenses incurred by the individual's estate.
(c) The court may require additional information in an accounting report under Subsection (10)(a).
(d) The Judicial Council shall approve forms for the accounting reports described in Subsection (10)(a).
(e) An annual accounting report under Subsection (10)(a) shall be examined and approved by the court.
(f) If the income of the individual with a severe intellectual disability is limited to a federal or state program requiring an annual accounting report, a copy of that report may be submitted to the court in lieu of the required annual accounting report under Subsection (10)(a).
(g)
(i) A corporate fiduciary is not required to petition the court, but shall submit the corporate fiduciary's internal report annually to the court.
(ii) The report under Subsection (10)(g)(i) shall be examined and approved by the court.
(h) If a fee is paid for an accounting of the estate of the individual with a severe intellectual disability, a fee may not be charged for an accounting of the individual's status under Subsection (13).
(11) If a conservator has been appointed for the estate of the individual with a severe intellectual disability, a guardian shall:
(a) control the custody and care of the individual and is entitled to receive reasonable sums for services and for room and board furnished to the individual as agreed upon between the guardian and the conservator if the amounts agreed upon are reasonable under the circumstances;
(b) pay all of the individual's estate received by the guardian in excess of those funds expended to meet current expenses for support, care, and education of the individual to the conservator for management of the individual's estate as provided in this chapter; and
(c) account to the conservator for funds expended to meet current expenses for support, care, and education of the individual.
(12) If a conservator has been appointed for the estate of the individual with a severe intellectual disability, a guardian may request the conservator to expend the individual's estate by payment to third persons or institutions for the individual's care and maintenance.
(13)
(a) Except as provided in Subsection (13)(b), the guardian shall provide an annual accounting of the individual's status, including a report of the physical and mental condition of the individual, the individual's estate that has been subject to the guardian's possession, and the individual's place of residence and others living in the same household, to the court in the petition or the annual report as required under Subsection (10).
(b) The guardian is not required to provide an annual report or accounting described in Subsection (10)(a) or (13)(a) if the guardian is the parent, grandparent, or sibling of the individual with a severe intellectual disability.
(14)
(a) The court may impose a penalty in an amount not to exceed $5,000 if a guardian:
(i) makes a substantial misstatement on filings of annual reports;
(ii) is guilty of gross impropriety in handling the property of the individual with a severe intellectual disability; or
(iii) willfully fails to file the report required by this section after receiving written notice from the court of the failure to file and after a grace period of two months has elapsed.
(b) The court may order restitution of funds misappropriated from the estate of the individual with a severe intellectual disability.
(c) A penalty under this Subsection (14) shall be paid by the guardian and may not be paid by the individual or the individual's estate.
(15) A person who refuses to accept the authority of a guardian with authority over financial decisions to transact business with the assets of the individual with a severe intellectual disability after receiving a certified copy of letters of guardianship is liable for costs, expenses, attorney fees, and damages if the court determines that the person did not act in good faith in refusing to accept the authority of the guardian.
(1) On a petition of resignation from a guardian of an individual with a severe intellectual disability, the court may:
(a) accept the guardian's resignation; or
(b) make any other order that is appropriate.
(2) On a petition of removal of a guardian from the individual with a severe intellectual disability or any person interested in the individual's welfare, the court may remove a guardian if:
(a) the guardian obtained the appointment by fraud, deceit, or gross misrepresentation;
(b) the guardian fails to perform the guardian's duties or responsibilities described in:
(i) Section 75-5-611 if the individual is in full guardianship; or
(ii) Section 75-5-312 if the individual is in a limited guardianship;
(c) the guardian is unable to perform the guardian's duties or responsibilities due to incapacity or illness;
(d) the guardian fails to use reasonable care and diligence in the management of the individual's estate;
(e) the individual is in a limited guardianship, the guardian is not permitted to restrict the individual's association, and the guardian is found by the court to have filed a petition frivolously or in bad faith under Section 75-5-312.5;
(f) the guardian's interests have become adverse to the faithful performance of the guardian's duties and there is a risk that the guardian will fail to faithfully perform the guardian's duties; or
(g) removal of the guardian would be in the best interest of the individual.
(3) If the court removes a guardian under Subsection (2), the court may:
(a) appoint a successor guardian; or
(b) make any other order that is appropriate.
(4) On a petition of resignation or removal of a guardian, the court shall follow the same procedures to safeguard the rights of the individual with a severe intellectual disability on a petition for appointment of a guardian under Sections 75-5-603, 75-5-604, 75-5-606, and 75-5-607.
(5) The court is not required to appoint an attorney to represent the individual with a severe intellectual disability upon the removal or resignation of the individual's guardian if the case is uncontested and the individual's incapacity is not at issue.
(1)
(a) An individual with a severe intellectual disability, or any person interested in the individual's welfare, may petition for an order:
(i) that the individual is not an individual with a severe intellectual disability; and
(ii) for removal or resignation of the guardian in accordance with Section 75-5-612.
(b) The court may specify a minimum period of time, not exceeding one year, during which no petition for the termination of a guardianship for an individual with a severe intellectual disability can be filed without leave from the court.
(c) A request for the order described in this Subsection (1) may be made by informal letter to the court.
(d) Any person who knowingly interferes with a request described in Subsection (1)(a) may be sanctioned by the court.
(2) Notwithstanding Subsection (1), the authority and responsibility of a guardian for an individual with a severe intellectual disability terminates upon:
(a) the death of the guardian or the individual;
(b) the determination that the guardian is incapacitated; or
(c) the removal or resignation of the guardian in accordance with Section 75-5-612.
(3) Resignation of a guardian does not terminate the guardianship until the resignation has been approved by the court.
(4) Termination of a guardian does not affect the guardian's liability for the guardian's prior acts or the guardian's obligation to account for funds and assets of the individual with a severe intellectual disability.
(5) On a petition to order that an individual is no longer an individual with a severe intellectual disability, the court shall follow the same procedures to safeguard the rights of the individual with a severe intellectual disability on a petition for appointment of a guardian under Sections 75-5-603, 75-5-604, 75-5-606, and 75-5-607.
As used in this part:
(1) "Abuse" means the same as that term is defined in Section 26B-6-201.
(2) "Coercion" means influencing or attempting to influence a principal using force, threats, or intimidation.
(3) "Covered entity" means the same as that term is defined in 45 C.F.R. Sec. 160.103.
(4) "Exploitation" means the same as that term is defined in Section 26B-6-201.
(5) "Good faith" means honesty in fact in the conduct or transaction concerned.
(6) "HIPAA" means the Health Insurance Portability and Accountability Act of 1996, 50 Pub. L. No. 104-191, 110 Stat. 1936, as amended.
(7) "Neglect" means the same as that term is defined in Section 26B-6-201.
(8) "Principal" means an individual who:
(a) is 18 years old or older;
(b) has a disability, as that term is defined in Section 26B-6-801; and
(c) has entered into a supported decision-making agreement with at least one supporter.
(9) "Protected health information" means the same as that term is defined in 45 C.F.R. Sec. 160.103.
(10)
(a) "Solicit" means to ask, command, encourage, importune, urge, or request.
(b) "Solicit" does not include providing information, materials, resources, or education materials to an individual.
(11) "Qualifying person" means a person who has a legal right to receive notice regarding, or legal decision-making authority for, an individual seeking to enter into a supported decision-making agreement, which may include:
(a) the agent for a power of attorney;
(b) the agent for an advance health care directive; or
(c) the personal representative of a will or the trustee of a trust.
(12) "Supported decision-making" means the process of supporting and accommodating an individual in the decision-making process to make, communicate, and effectuate life decisions, without impeding the self-determination of the individual.
(13) "Supported decision-making agreement" means an agreement between a principal and at least one supporter, subject to the requirements described in Section 75-5-704.
(14) "Supporter" means an individual:
(a) who is 18 years old or older;
(b) who is not being paid to provide support to the principal, unless the individual is receiving caregiver compensation through the Division of Services for People with Disabilities or is a sibling of the principal who cares for the principal;
(c) who does not have any of the following:
(i) a substantiated allegation of abuse, neglect, or exploitation;
(ii) a protective or restraining order; or
(iii) a conviction for:
(A) harm of another;
(B) theft; or
(C) financial crime; and
(d) who has agreed to provide specified assistance to a principal by entering into a supported decision-making agreement with the principal.
(15) "Undue influence" means the same as that term is defined in Section 26B-6-201.
The purposes of this part are to:
(1) provide a principal assistance in:
(a) gathering and assessing information;
(b) understanding options, responsibilities, and consequences of a decision; and
(c) communicating decisions for a principal if the principal wants assistance with communicating decisions;
(2) give a supporter legal status, as specified in a supported decision-making agreement, to be with a principal, to access information on behalf of a principal, and to participate in discussions with others when a principal is making decisions or seeking to obtain information; and
(3) enable a supporter to assist in making and communicating decisions for a principal, but not to substitute as the decision maker for a principal.
This part shall be construed and applied in accordance with the following principles:
(1) a principal should be able to:
(a) live in the manner in which the principal wishes; and
(b) make decisions about accepting or refusing support, assistance, or protection, as long as doing so does not cause serious bodily injury, as that term is defined in Section 26B-5-301, to the principal, or harm to others;
(2) a principal should be informed about and, to the best of the principal's abilities, participate in the management of the principal's affairs;
(3) a principal should receive the most effective, yet least restrictive and intrusive, form of support, assistance, or protection when the principal is unable to manage the principal's affairs alone; and
(4) the values, beliefs, wishes, cultural norms, and traditions that a principal holds should be respected in supporting the principal.
(1) Subject to Subsections (2) and (6), an individual may enter into a supported decision-making agreement at any time if:
(a) the individual enters into the agreement voluntarily, without coercion or undue influence, and without being solicited to enter into the agreement; and
(b) the individual understands the nature and effect of the agreement.
(2)
(a) If the individual seeking to enter into a supported decision-making agreement has a court-appointed guardian, court-appointed conservator, or qualifying person, the guardian, conservator, or qualifying person shall be given:
(i) notice and an opportunity to participate in all discussions related to a proposed supported decision-making agreement; and
(ii) 14 days to review a proposed supported decision-making agreement to determine whether the proposed agreement includes an area over which the guardian, conservator, or qualifying person has been granted legal decision-making authority.
(b) If a guardian, conservator, or qualifying person determines, pursuant to Subsection (2)(a), that a proposed supported decision-making agreement includes an area over which the guardian, conservator, or qualifying person has been granted decision-making authority:
(i) the supported decision-making agreement is not valid without the signature of the guardian, conservator, or qualifying person; and
(ii) the proposed supported decision-making agreement shall describe how the guardian, conservator, or qualifying person will be provided timely notice of and an opportunity to participate in any discussion between parties to the supported decision-making agreement that relate to an area over which the guardian, conservator, or qualifying person has been granted legal decision-making authority.
(c) If a guardian, conservator, or qualifying person described in Subsection (2)(a) determines that a proposed supported decision-making agreement includes an area over which the guardian, conservator, or other person has not been granted legal decision-making authority, nothing in this part shall be construed to:
(i) require that the guardian, conservator, or qualifying person be excluded from any discussion relating to that area; or
(ii) preclude the parties to the proposed supported decision-making agreement from giving the guardian, conservator, or qualifying person notice and an opportunity to participate in any discussion relating to that area.
(3) A supported decision-making agreement shall:
(a) be in writing;
(b) state the date on which the agreement is effective;
(c) designate at least one supporter;
(d) describe:
(i) how the principal uses supported decision-making to make decisions;
(ii) the rights of the principal;
(iii) the responsibilities of each supporter;
(iv) the decision-making supports and accommodations the principal chooses to receive from each supporter;
(v) the types of decisions, if any, with which a supporter is not authorized to assist the principal;
(e) include the ink or electronic signature of:
(i) the individual seeking to enter into the supported decision-making agreement;
(ii) each supporter;
(iii) a guardian, conservator, or qualifying person, if required under Subsection (2); and
(iv)
(A) two witnesses; or
(B) a notary public; and
(f) describe how any perceived or actual conflict of interest between a supporter and the principal will be mitigated.
(4)
(a) A supported decision-making agreement executed other than in this state is valid in this state if, when the supported decision-making agreement was executed, the execution complied with the law of the jurisdiction that determines the meaning and effect of the supported decision-making agreement.
(b) The meaning and effect of a supported decision-making agreement is determined by the law of the jurisdiction indicated in the supported decision-making agreement and, in the absence of an indication of jurisdiction, by the law of the jurisdiction in which the supported decision-making agreement was executed.
(5)
(a) A supported decision-making agreement may include a release or other document by which the principal authorizes a supporter to access the principal's confidential information, subject to the terms of the supported decision-making agreement described in Subsection (3) and the supporter's duties described in Section 75-5-705.
(b) Before a covered entity may share a principal's protected health information with a supporter, the principal shall sign a HIPAA consent form authorizing release of the protected health information to the supporter.
(c) Nothing in this part shall be construed to alter or preempt the requirements for protecting health information under HIPAA.
(6) Each supporter shall include with the supporter's signature:
(a) a description of the supporter's relationship to the principal;
(b) a statement of the supporter's willingness to act as a supporter;
(c) an acknowledgment of the supporter's duties; and
(d) an attestation that the supporter:
(i) agrees to honor the right of the principal to make decisions;
(ii) will not make decisions for the principal, including health care decisions; and
(iii) will respect and work to further the independence of the principal.
(7) A supported decision-making agreement may do one or more of the following:
(a) specify a time period for which the supported decision-making agreement is valid;
(b) designate more than one supporter;
(c) designate an alternate individual to act in the place of a supporter under circumstances specified in the supported decision-making agreement; or
(d) authorize a supporter to share information with another supporter or other individual named in the supported decision-making agreement.
(1) A supporter shall:
(a) act with the care, competence, and diligence ordinarily exercised by individuals in similar circumstances, and in accordance with the supporter's skills or expertise;
(b) act in good faith;
(c) comply with the terms of the supported decision-making agreement;
(d) maintain records, which the supporter shall make available to the principal upon request, concerning:
(i) the supporter's actions under the supported decision-making agreement; and
(ii) how the principal communicates and expresses opinions to the supporter; and
(e) ensure that all information collected on behalf of the principal pursuant to the supported decision-making agreement and this section is:
(i) kept confidential, as appropriate;
(ii) not subject to unauthorized access, use, or disclosure; and
(iii) properly disposed of when appropriate.
(2) Except as otherwise provided in the supported decision-making agreement or Subsection (3), a supporter may, as directed by the principal:
(a) assist the principal in understanding information, options, responsibilities, and consequences of the principal's life decisions, including decisions relating to the principal's affairs or supportive services;
(b) help the principal access, obtain, and understand information that is relevant to a life decision, including medical, psychological, financial, or educational decisions, or any treatment records or records related to the management of the principal's affairs or supportive services;
(c) assist the principal with finding, obtaining, and making appointments for supportive services, and implement the principal's plans for supportive services;
(d) help the principal monitor information about the principal's affairs or supportive services, including tracking future necessary or recommended services;
(e) ascertain the wishes and decisions of the principal, assist in communicating those wishes and decisions to others, and advocate to ensure that the wishes and decisions of the principal are implemented; or
(f) assist the principal with obtaining information to which the principal is entitled.
(3) A supporter may not:
(a) coerce, exploit, exert undue influence on, or make decisions on behalf of the principal;
(b) sign for the principal or provide an electronic signature of the principal to a third party;
(c) make health care decisions for the principal; or
(d) without the principal's consent:
(i) obtain information that is not reasonably related to matters with which the supporter is authorized to support or assist the principal pursuant to the supported decision-making agreement;
(ii) use information acquired in connection with the supported decision-making agreement for a purpose other than supporting or assisting the principal pursuant to the supported decision-making agreement; or
(iii) delegate the supporter's duties to a third party.
(1) A principal may revoke a supported decision-making agreement at any time by providing written notice to all other parties to the agreement.
(2) A supporter may withdraw from a supported decision-making agreement at any time by providing written notice to all other parties to the agreement.
(3) A written notice of revocation or withdrawal under this section may be provided by electronic means.
Unless otherwise provided in the supported decision-making agreement, a supported decision-making agreement is terminated upon the occurrence of any of the following:
(1) the death of the principal;
(2) revocation by the principal pursuant to Section 75-5-706;
(3) as to a specific supporter, if the supporter is no longer qualified by reason of failure to meet the requirements described in Subsection 75-5-701(14);
(4) withdrawal by all of the supporters pursuant to Section 75-5-706 without the designation of a successor supporter;
(5) the principal's execution of a valid power of attorney, healthcare directive, or declaration for mental health treatment, except to the extent the executed document expressly continues, in whole or in part, the supported decision-making agreement; or
(6) a court's:
(a) determination that the principal does not have capacity to execute or consent to a supported decision-making agreement; or
(b) appointment of a temporary or permanent guardian or conservator, unless the court's order of appointment:
(i) modifies but continues the supported decision-making agreement; and
(ii) limits the powers and duties of the guardian.
(1) A decision or request made or communicated by a principal with the assistance of a supporter in accordance with the terms of a supported decision-making agreement and this part shall, for the purposes of any provision of law, be recognized as the decision or request of the principal and may be enforced on the same basis as a decision or request of the principal without support.
(2) The availability of a supported decision-making agreement does not limit the informal use of supported decision making, or preclude judicial consideration of informal supported decision-making arrangements as a less restrictive alternative to a guardianship or conservatorship.
(3) Execution of a supported decision-making agreement may not be a condition of participating in any activity, service, or program.
(4) A court may not consider an individual's execution of a supported decision-making agreement as evidence of the individual's incapacity.
(5) The existence of a supported decision-making agreement does not preclude the principal from acting independently of the supported decision-making agreement.
(1) A person who is not a party to a supported decision-making agreement, including a provider of health care or financial services, that in good faith accepts or relies upon a supported decision-making agreement:
(a) may presume that the signatures on the supported decision-making agreement are genuine, unless the person has actual knowledge that any signature on the supported decision-making agreement is not genuine;
(b) may presume that a supported decision-making agreement is valid and that a purported supporter's authority is valid, unless the person has actual knowledge that the supported decision-making agreement or the purported supporter's authority has been revoked, terminated, or is otherwise void or invalid; and
(c) is not subject to civil or criminal liability, or discipline for unprofessional conduct, for giving effect to a provision in a supported decision-making agreement, or for following the direction of a supporter given in accordance with the supported decision-making agreement.
(2) If a person has reason to believe a principal is or has been the subject of abuse, neglect, or exploitation, or observes a principal being subjected to conditions or circumstances that would reasonably result in abuse, neglect, or exploitation, the person shall immediately report the suspected abuse, neglect, or exploitation to Adult Protective Services.
(3) The provisions of this part may not be construed to affect mandatory reporting obligations related to abuse, neglect, or exploitation.
(4) A supporter who violates this part or the terms of a supported decision-making agreement is liable to the principal or the principal's successor in interest for the amount required to restore the value of the principal's property to what it would have been had the violation not occurred.
(5) A transaction between a supporter and a principal that occurs while a supported decision-making agreement is in effect, or while the supporter is in a position of trust with the principal, and from which the supporter obtains a benefit or advantage, is voidable by the principal unless the supporter establishes that the transaction was fair to the principal.
This chapter is known as the "Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act."
As used in this chapter:
(1) "Adult" means an individual who has attained 18 years of age.
(2) "Conservator" means a person appointed by the court to administer the property of an adult, including a person appointed under Title 75, Chapter 5, Part 4, Protection of Property of Persons Under Disability and Minors.
(3) "Emergency" means circumstances that likely will result in substantial harm to a respondent's health, safety, or welfare, and in which the appointment of a guardian is necessary because no other person has authority to and is willing to act on the respondent's behalf.
(4) "Guardianship order" means an order appointing a guardian.
(5) "Guardianship proceeding" means a proceeding in which an order for the appointment of a guardian is sought or has been issued.
(6) "Home state" means the state in which the respondent was physically present for at least six consecutive months immediately before the filing of a petition for the appointment of a guardian or protective order. A period of temporary absence counts as part of the six-month period.
(7) "Incapacitated person" means an adult for whom a guardian has been appointed.
(8) "Party" means the respondent, petitioner, guardian, conservator, or any other person allowed by the court to participate in a guardianship or protective proceeding.
(9) "Person," except in the terms "incapacitated person" or "protected person," means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government or governmental subdivision, agency or instrumentality, public corporation, or any other legal or commercial entity.
(10) "Protected person" means an adult for whom a protective order has been made.
(11) "Protective order" means an order appointing a conservator or another court order related to management of an adult's property.
(12) "Protective proceeding" means a judicial proceeding in which a protective order is sought or has been issued.
(13) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(14) "Respondent" means an adult for whom a protective order or the appointment of a guardian is sought.
(15) "Significant-connection state" means a state, other than the home state, with which a respondent has a significant connection other than mere physical presence and in which substantial evidence concerning the respondent is available.
(16) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.
A court of this state may treat a foreign country as if it were a state for the purpose of applying Part 1, General Provisions, Part 2, Jurisdiction, Part 3, Transfer of Jurisdiction, and Part 5, Miscellaneous Provisions.
(1) A court of this state may communicate with a court in another state concerning a proceeding arising under this chapter. The court may allow the parties to participate in the communication. Except as otherwise provided in Subsection (2), the court shall make a record of the communication. The record may be limited to the fact that the communication occurred.
(2) Courts may communicate concerning schedules, calendars, court records, and other administrative matters without making a record.
(1) In a guardianship or protective proceeding in this state, a court of this state may request the appropriate court of another state to do any of the following:
(a) hold an evidentiary hearing;
(b) order a person in that state to produce evidence or give testimony pursuant to procedures of that state;
(c) order that an evaluation or assessment be made of the respondent;
(d) order any appropriate investigation of a person involved in a proceeding;
(e) forward to the court of this state a certified copy of the transcript or other record of a hearing under Subsection (1)(a) or any other proceeding, any evidence otherwise produced under Subsection (1)(b), and any evaluation or assessment prepared in compliance with an order under Subsection (1)(c) or (d);
(f) issue any order necessary to assure the appearance in the proceeding of a person whose presence is necessary for the court to make a determination, including the respondent or the incapacitated or protected person; and
(g) issue an order authorizing the release of medical, financial, criminal, or other relevant information in that state, including protected health information as defined in 45 Code of Federal Regulations Section 164.504.
(2) If a court of another state in which a guardianship or protective proceeding is pending requests assistance of the kind provided in Subsection (1), a court of this state has jurisdiction for the limited purpose of granting the request or making reasonable efforts to comply with the request.
(1) In a guardianship or protective proceeding, in addition to other procedures that may be available, testimony of a witness who is located in another state may be offered by deposition or other means allowable in this state for testimony taken in another state. The court on its own motion may order that the testimony of a witness be taken in another state and may prescribe the manner in which and the terms upon which the testimony is to be taken.
(2) In a guardianship or protective proceeding, a court in this state may permit a witness located in another state to be deposed or to testify by telephone, audiovisual, or other electronic means. A court of this state shall cooperate with courts of other states in designating an appropriate location for the deposition or testimony.
(3) Documentary evidence transmitted from another state to a court of this state by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the best evidence rule.
(1) This part provides the exclusive jurisdictional basis for a court of this state to appoint a guardian or issue a protective order for an adult.
(2) In determining under Section 75-5b-203 and Subsection 75-5b-301(5) whether a respondent has a significant connection with a particular state, the court shall consider:
(a) the location of the respondent's family and other persons required to be notified of the guardianship or protective proceeding;
(b) the length of time the respondent at any time was physically present in the state and the duration of any absence;
(c) the location of the respondent's property; and
(d) the extent to which the respondent has ties to the state such as voting registration, state or local tax return filing, vehicle registration, driver license, social relationship, and receipt of services.
A court of this state has jurisdiction to appoint a guardian or issue a protective order for a respondent if:
(1) this state is the respondent's home state;
(2) on the date the petition is filed, this state is a significant-connection state and:
(a) the respondent does not have a home state or a court of the respondent's home state has declined to exercise jurisdiction because this state is a more appropriate forum; or
(b) the respondent has a home state, a petition for an appointment or order is not pending in a court of that state or another significant-connection state, and, before the court makes the appointment or issues the order:
(i) a petition for an appointment or order is not filed in the respondent's home state;
(ii) an objection to the court's jurisdiction is not filed by a person required to be notified of the proceeding; and
(iii) the court in this state concludes that it is an appropriate forum under the factors set forth in Section 75-5b-205;
(3) this state does not have jurisdiction under either Subsection (1) or (2), the respondent's home state and all significant-connection states have declined to exercise jurisdiction because this state is the more appropriate forum, and jurisdiction in this state is consistent with the constitutions of this state and the United States; or
(4) the requirements for special jurisdiction under Section 75-5b-204 are met.
(1) A court of this state lacking jurisdiction under Section 75-5b-202 has jurisdiction to do any of the following:
(a) appoint a guardian in an emergency for a term not exceeding 90 days for a respondent who is physically present in this state;
(b) issue a protective order with respect to real or tangible personal property located in this state; and
(c) appoint a guardian or conservator for an incapacitated or protected person for whom a provisional order to transfer the proceeding from another state has been issued under procedures similar to Section 75-5b-301.
(2) If a petition for the appointment of a guardian in an emergency is brought in this state and this state was not the respondent's home state on the date the petition was filed, the court shall dismiss the proceeding at the request of the court of the home state, if any, whether dismissal is requested before or after the emergency appointment.
Except as otherwise provided in Section 75-5b-203, a court that has appointed a guardian or issued a protective order consistent with this chapter has exclusive and continuing jurisdiction over the proceeding until it is terminated by the court or the appointment or order expires by its own terms.
(1) A court of this state having jurisdiction under Section 75-5b-202 to appoint a guardian or issue a protective order may decline to exercise its jurisdiction if it determines at any time that a court of another state is a more appropriate forum.
(2) If a court of this state declines to exercise its jurisdiction under Subsection (1), it shall either dismiss or stay the proceeding. The court may impose any other condition the court considers just and proper, including the condition that a petition for the appointment of a guardian or issuance of a protective order be promptly filed in another state.
(3) In determining whether it is an appropriate forum, the court shall consider all relevant factors, including:
(a) any expressed preference of the respondent;
(b) whether abuse, neglect, or exploitation of the respondent has occurred or is likely to occur and which state could best protect the respondent from the abuse, neglect, or exploitation;
(c) the length of time the respondent was physically located in or was a legal resident of this or another state;
(d) the distance of the respondent from the court in each state;
(e) the financial circumstances of the respondent's estate;
(f) the nature and location of the evidence;
(g) the ability of the court in each state to decide the issue expeditiously and the procedures necessary to present evidence;
(h) the familiarity of the court of each state with the facts and issues in the proceeding; and
(i) if an appointment were made, the court's ability to monitor the conduct of the guardian or conservator.
(1) If at any time a court of this state determines that it acquired jurisdiction to appoint a guardian or issue a protective order because of unjustifiable conduct, the court may:
(a) decline to exercise jurisdiction;
(b) exercise jurisdiction for the limited purpose of fashioning an appropriate remedy to ensure the health, safety, and welfare of the respondent or the protection of the respondent's property or prevent a repetition of the unjustifiable conduct, including staying the proceeding until a petition for the appointment of a guardian or issuance of a protective order is filed in a court of another state having jurisdiction; or
(c) continue to exercise jurisdiction after considering:
(i) the extent to which the respondent and all persons required to be notified of the proceedings have acquiesced in the exercise of the court's jurisdiction;
(ii) whether it is a more appropriate forum than the court of any other state under the factors set forth in Subsection 75-5b-205(3); and
(iii) whether the court of any other state would have jurisdiction under factual circumstances in substantial conformity with the jurisdictional standards of Section 75-5b-202.
(2) If a court of this state determines that it acquired jurisdiction to appoint a guardian or issue a protective order because a party seeking to invoke its jurisdiction engaged in unjustifiable conduct, it may assess against that party necessary and reasonable expenses, including attorney fees, investigative fees, court costs, communication expenses, witness fees and expenses, and travel expenses. The court may not assess fees, costs, or expenses of any kind against the state or a governmental subdivision, agency, or instrumentality of the state unless authorized by law other than this chapter.
If a petition for the appointment of a guardian or issuance of a protective order is brought in this state and this state was not the respondent's home state on the date the petition was filed, in addition to complying with the notice requirements of this state, notice of the petition shall be given to those persons who would be entitled to notice of the petition if the proceeding were brought in the respondent's home state. The notice shall be given in the same manner as notice is given in this state.
Except for a petition for the appointment of a guardian in an emergency or issuance of a protective order limited to property located in this state as provided in Subsection 75-5b-203(1)(a) or (b), if a petition for the appointment of a guardian or issuance of a protective order is filed in this state and in another state and neither petition has been dismissed or withdrawn, the following rules apply:
(1) If the court in this state has jurisdiction under Section 75-5b-202, it may proceed with the case unless a court in another state acquires jurisdiction under Section 75-5b-202 before the appointment or issuance of the order.
(2) If the court in this state does not have jurisdiction under Section 75-5b-202, whether at the time the petition is filed or at any time before the appointment or issuance of the order, the court shall stay the proceeding and communicate with the court in the other state. If the court in the other state has jurisdiction, the court in this state shall dismiss the petition unless the court in the other state determines that the court in this state is a more appropriate forum.
(1) A guardian or conservator appointed in this state may petition the court to transfer the guardianship or conservatorship to another state.
(2) Notice of a petition under Subsection (1) must be given to the persons that would be entitled to notice of a petition in this state for the appointment of a guardian or conservator.
(3) On the court's own motion or on request of the guardian or conservator, the incapacitated or protected person, or other person required to be notified of the petition, the court shall hold a hearing on a petition filed pursuant to Subsection (1).
(4) The court shall issue an order provisionally granting a petition to transfer a guardianship and shall direct the guardian to petition for guardianship in the other state if the court is satisfied that the guardianship will be accepted by the court in the other state and the court finds that:
(a) the incapacitated person is physically present in or is reasonably expected to move permanently to the other state;
(b) an objection to the transfer has not been made or, if an objection has been made, the objector has not established that the transfer would be contrary to the interests of the incapacitated person; and
(c) plans for care and services for the incapacitated person in the other state are reasonable and sufficient.
(5) The court shall issue a provisional order granting a petition to transfer a conservatorship and shall direct the conservator to petition for conservatorship in the other state if the court is satisfied that the conservatorship will be accepted by the court of the other state and the court finds that:
(a) the protected person is physically present in or is reasonably expected to move permanently to the other state, or the protected person has a significant connection to the other state considering the factors in Subsection 75-5b-201(2);
(b) an objection to the transfer has not been made or, if an objection has been made, the objector has not established that the transfer would be contrary to the interests of the protected person; and
(c) adequate arrangements will be made for management of the protected person's property.
(6) The court shall issue a final order confirming the transfer and terminating the guardianship or conservatorship upon its receipt of:
(a) a provisional order accepting the proceeding from the court to which the proceeding is to be transferred which is issued under provisions similar to Section 75-5b-302; and
(b) the documents required to terminate a guardianship or conservatorship in this state.
(1) To confirm transfer of a guardianship or conservatorship transferred to this state under provisions similar to Section 75-5b-301, the guardian or conservator shall petition the court in this state to accept the guardianship or conservatorship. The petition shall include a certified copy of the other state's provisional order of transfer.
(2) Notice of a petition under Subsection (1) shall be given by the petitioner to those persons who would be entitled to notice if the petition were a petition for the appointment of a guardian or issuance of a protective order in both the transferring state and this state. The notice shall be given in the same manner as notice is given in this state.
(3) On the court's own motion or on request of the incapacitated or protected person, or other person required to be notified of the proceeding, the court shall hold a hearing on a petition filed pursuant to Subsection (1).
(4) The court shall issue an order provisionally granting a petition filed under Subsection (1) unless:
(a) an objection is made and the objector establishes that transfer of the proceeding would be contrary to the interests of the incapacitated or protected person; or
(b) the guardian or conservator is ineligible for appointment in this state.
(5) The court shall issue a final order accepting the proceeding and appointing the guardian or conservator as guardian or conservator in this state upon its receipt from the court from which the proceeding is being transferred of a final order issued under provisions similar to Section 75-5b-301 transferring the proceeding to this state.
(6) Not later than 90 days after issuance of a final order accepting transfer of a guardianship or conservatorship, the court shall determine whether the guardianship or conservatorship needs to be modified to conform to the law of this state.
(7) In granting a petition under this section, the court shall recognize a guardianship or conservatorship order from the other state, including the determination of the incapacitated or protected person's incapacity and the appointment of the guardian or conservator.
(8) The denial by a court of this state of a petition to accept a guardianship or conservatorship transferred from another state does not affect the ability of the guardian or conservator to seek appointment as guardian or conservator in this state under Title 75, Chapter 5, Part 3, Guardians of Incapacitated Persons, if the court has jurisdiction to make an appointment other than by reason of the provisional order of transfer.
If a guardian has been appointed in another state and a petition for the appointment of a guardian is not pending in this state, the guardian appointed in the other state, after giving notice to the appointing court of an intent to register, may register the guardianship order in this state by filing certified copies of the order and letters of office as a foreign judgment in a court in any appropriate county of this state.
If a conservator has been appointed in another state and a petition for a protective order is not pending in this state, the conservator appointed in the other state, after giving notice to the appointing court of an intent to register, may register the protective order in this state by filing as a foreign judgment in a court of this state, in any county in which property belonging to the protected person is located, certified copies of the order, letters of office, and any bond.
(1) Upon registration of a guardianship or protective order from another state, the guardian or conservator may exercise in this state all powers authorized in the order of appointment except as prohibited under the laws of this state, including maintaining actions and proceedings in this state and, if the guardian or conservator is not a resident of this state, subject to any conditions imposed upon nonresident parties.
(2) A court of this state may grant any relief available under this chapter and other law of this state to enforce a registered order.
In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Sec. 7001, et seq., but does not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Sec. 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b), 15 U.S.C. Sec. 7003(b).
(1) This chapter applies to guardianship and protective proceedings begun on or after January 1, 2009.
(2) Part 1, General Provisions, Part 3, Transfer of Jurisdiction, and Part 4, Registration and Recognition of Orders from Other States and Sections 75-5b-501 and 75-5b-502 apply to proceedings begun before January 1, 2009, regardless of whether a guardianship or protective order has been issued.
As used in this part:
(1) "Account" means a contract of deposit of funds between a depositor and a financial institution and includes:
(a) a checking account;
(b) a savings account;
(c) a certificate of deposit;
(d) a share account; and
(e) other like arrangement.
(2) "Beneficiary" means a person named in a trust account as one for whom a party to the account is named as trustee.
(3) "Financial institution" means any organization authorized to do business under state or federal laws relating to financial institutions, including, without limitation:
(a) banks;
(b) trust companies;
(c) industrial banks;
(d) savings banks;
(e) building and loan associations;
(f) savings and loan companies or associations; and
(g) credit unions.
(4) "Joint account" means an account payable on request to one or more of two or more parties whether or not mention is made of any right of survivorship.
(5)
(a) "Multiple-party account" means any of the following types of account:
(i) a joint account;
(ii) a P.O.D. account; or
(iii) a trust account.
(b) "Multiple-party account" does not include:
(i) accounts established for deposit of funds of a partnership, joint venture, or other association for business purposes; or
(ii) accounts controlled by one or more persons as the duly authorized agent or trustee for a corporation, unincorporated association, charitable or civic organization, or a regular fiduciary or trust account where the relationship is established other than by deposit agreement.
(6)
(a) "Net contribution" of a party to a joint account as of any given time is the sum of all deposits to it made by or for the party, less all withdrawals made by or for the party which have not been paid to or applied to the use of any other party, plus a pro rata share of any interest or dividends included in the current balance.
(b) "Net contribution" includes, in addition, any proceeds of deposit life insurance added to the account by reason of the death of the party whose net contribution is in question.
(7)
(a) "Party" means a person, including a minor, who, by the terms of the account, has a present right, subject to request, to payment from a multiple-party account.
(b) A P.O.D. payee or beneficiary of a trust account is a party only after the account becomes payable to him by reason of his surviving the original payee or trustee and includes a guardian, conservator, personal representative, or assignee, including an attaching creditor, of a party.
(c) "Party" includes a person identified as a trustee of an account for another whether or not a beneficiary is named.
(d) "Party" does not include any named beneficiary unless the named beneficiary has a present right of withdrawal.
(8) "Payment" of sums on deposit includes withdrawal, payment on check or other directive of a party, and any pledge of sums on deposit by a party and any setoff, reduction, or other disposition of all or part of an account pursuant to a pledge.
(9) "Proof of death" includes a death certificate or record or report which is prima facie proof of death under Section 75-1-107.
(10) "P.O.D. account" means an account payable on request to one person during lifetime and on that person's death to:
(a) one or more P.O.D. payees; or
(b) one or more persons during their lifetimes and on the death of all of them to one or more P.O.D. payees.
(11) "P.O.D. payee" means a person designated on a P.O.D. account as one to whom the account is payable on request after the death of one or more persons.
(12) "Request" means a proper request for withdrawal, or a check or order for payment, which complies with all conditions of the account, including special requirements concerning necessary signatures and regulations of the financial institution; but if the financial institution conditions withdrawal or payment on advance notice, for purposes of this part the request for withdrawal or payment is treated as immediately effective and a notice of intent to withdraw is treated as a request for withdrawal.
(13) "Sums on deposit" means the balance payable on a multiple-party account, including interest, dividends, and in addition any deposit life insurance proceeds added to the account by reason of the death of a party.
(14)
(a) "Trust account" means an account in the name of one or more parties as trustee for one or more beneficiaries where the relationship is established by the form of the account and the deposit agreement with the financial institution and there is no subject of the trust other than the sums on deposit in the account; and it is not essential that payment to the beneficiary be mentioned in the deposit agreement.
(b) A trust account does not include a regular trust account under a testamentary trust or a trust agreement which has significance apart from the account, or a fiduciary account arising from a fiduciary relation such as attorney-client.
(15) "Withdrawal" includes payment to a third person pursuant to check or other directive of a party.
The provisions of Sections 75-6-103 through 75-6-105 concerning beneficial ownership as between parties, or as between parties and P.O.D. payees or beneficiaries of multiple-party accounts, are relevant only to controversies between these persons and their creditors and other successors, and have no bearing on the power of withdrawal of these persons as determined by the terms of account contracts. The provisions of Sections 75-6-108 through 75-6-113 govern the liability of financial institutions who make payments pursuant thereto, and their setoff rights.
(1) A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent.
(2) A P.O.D. account belongs to the original payee during his lifetime and not to the P.O.D. payee or payees; if two or more parties are named as original payees, during their lifetimes rights as between them are governed by Subsection (1) of this section.
(3) Unless a contrary intent is manifested by the terms of the account or the deposit agreement or there is other clear and convincing evidence of an irrevocable trust, a trust account belongs beneficially to the trustee during his lifetime, and if two or more parties are named as trustee on the account, during their lifetimes beneficial rights as between them are governed by Subsection (1) of this section. If there is an irrevocable trust, the account belongs beneficially to the beneficiary.
(1)
(a) Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intention.
(b) A financial institution may rely on the financial institution's records for a joint account when distributing funds for the joint account in accordance with Subsection (1)(a).
(c) If there are two or more surviving parties under Subsection (1)(a), their respective ownerships during lifetime shall be in proportion to their previous ownership interests under Section 75-6-103 augmented by an equal share for each survivor of any interest the decedent may have owned in the account immediately before the decedent's death; and the right of survivorship continues between the surviving parties.
(2) If the account is a P.O.D. account:
(a) on death of one of two or more original payees, the rights to any sums remaining on deposit are governed by Subsection (1); or
(b) on death of the sole original payee or of the survivor of two or more original payees, any sums remaining on deposit belong to the P.O.D. payee or payees if surviving, or to the survivor of them if one or more die before the original payee; if two or more P.O.D. payees survive, there is no right of survivorship in event of death of a P.O.D. payee thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.
(3) If the account is a trust account:
(a) on death of one of two or more trustees, the rights to any sums remaining on deposit are governed by Subsection (1); or
(b) on death of the sole trustee or the survivor of two or more trustees, any sums remaining on deposit belong to the person or persons named as beneficiaries, if surviving, or to the survivor of them if one or more die before the trustee, unless there is clear evidence of a contrary intent; and if two or more beneficiaries survive, there is no right of survivorship in event of death of any beneficiary thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.
(4) In other cases, the death of any party to a multiple-party account has no effect on beneficial ownership of the account other than to transfer the rights of the decedent as part of the decedent's estate.
(5) A right of survivorship arising from the express terms of the account or under this section, a beneficiary designation in a trust account, or a P.O.D. payee designation, cannot be changed by will.
The provisions of Section 75-6-104 as to rights of survivorship are determined by the form of the account at the death of a party. This form may be altered by written order given by a party to the financial institution to change the form of the account or to stop or vary payment under the terms of the account. The order or request must be signed by a party, received by the financial institution during the party's lifetime, and not countermanded by other written order of the same party during his lifetime.
Any transfers resulting from the application of Section 75-6-104 are effective by reason of the account contracts involved and this statute and are not to be considered as testamentary or subject to Chapter 1, General Provisions, Definitions, and Probate Jurisdiction of Court, Chapter 2, Intestate Succession and Wills, Chapter 3, Probate of Wills and Administration, and Chapter 4, Foreign Personal Representatives - Ancillary Administration, except as provided in Sections 75-2-201 through 75-2-214, and except as a consequence of, and to the extent directed by, Sections 75-6-107 and 75-3-916.
No multiple-party account will be effective against an estate of a deceased party to transfer to a survivor sums needed to pay debts, taxes, and expenses of administration, including statutory allowances to the surviving spouse, minor children and dependent children, if other assets of the estate are insufficient. A surviving party, P.O.D. payee, or beneficiary who receives payment from a multiple-party account after the death of a deceased party shall be liable to account to his personal representative for amounts the decedent owned beneficially immediately before his death to the extent necessary to discharge the claims and charges mentioned above remaining unpaid after application of the decedent's estate. No proceeding to assert this liability shall be commenced unless the personal representative has received a written demand by a surviving spouse, a creditor, or one acting for a minor or dependent child of the decedent; and no proceeding shall be commenced later than two years following the death of the decedent. Sums recovered by the personal representative shall be administered as part of the decedent's estate. This section shall not affect the right of a financial institution to make payment on multiple-party accounts according to the terms thereof or make it liable to the estate of a deceased party unless before payment the institution has been served with process in a proceeding by the personal representative.
Financial institutions may enter into multiple-party accounts to the same extent that they may enter into single-party accounts. Any multiple-party account may be paid, on request, to any one or more of the parties. A financial institution shall not be required to inquire as to the source of funds received for deposit to a multiple-party account, or to inquire as to the proposed application of any sum withdrawn from an account, for purposes of establishing net contributions.
Any sums in a joint account may be paid, on request, to any party without regard to whether any other party is incapacitated or deceased at the time the payment is demanded; but payment may not be made to the personal representative or heirs of a deceased party unless proofs of death are presented to the financial institution showing that the decedent was the last surviving party or unless there is no right of survivorship under Section 75-6-104.
Any P.O.D. account may be paid, on request, to any original party to the account. Payment may be made, on request, to the P.O.D. payee or to the personal representative or heirs of a deceased P.O.D. payee upon presentation to the financial institution of proof of death showing that the P.O.D. payee survived all persons named as original payees. Payment may be made to the personal representative or heirs of a deceased original payee if proof of death is presented to the financial institution showing that his decedent was the survivor of all other persons named on the account either as an original payee or as P.O.D. payee.
Any trust account may be paid, on request, to any trustee. Unless the financial institution has received written notice that the beneficiary has a vested interest not dependent upon his surviving the trustee, payment may be made to the personal representative or heirs of a deceased trustee if proof of death is presented to the financial institution showing that his decedent was the survivor of all other persons named on the account either as trustee or beneficiary. Payment may be made, on request, to the beneficiary upon presentation to the financial institution of proof of death showing that the beneficiary or beneficiaries survived all persons named as trustees.
Payment made pursuant to Section 75-6-108, 75-6-109, 75-6-110 or 75-6-111 discharges the financial institution from all claims for amounts so paid whether or not the payment is consistent with the beneficial ownership of the account as between parties, P.O.D. payees, or beneficiaries, or their successors. The protection here given does not extend to payments made after a financial institution has received written notice from any party able to request present payment to the effect that withdrawals in accordance with the terms of the account should not be permitted. Unless the notice is withdrawn by the person giving it, the successor of any deceased party must concur in any demand for withdrawal if the financial institution is to be protected under this section. No other notice or any other information shown to have been available to a financial institution shall affect its right to the protection provided here. The protection here provided shall have no bearing on the rights of parties in disputes between themselves or their successors concerning the beneficial ownership of funds in, or withdrawn from, multiple-party accounts.
(1) Without qualifying any other statutory right to setoff or lien and subject to any contractual provision, if a party to a multiple-party account is indebted to a financial institution, the financial institution has a right to setoff against the balance in any account in which the party has or had immediately before his death a present right of withdrawal.
(2) Without regard to the ownership of funds in any multiple-party account and without incurring liability for wrongful dishonor, conversion, or other liability or damage to any person, a financial institution may refuse to permit any withdrawals from the account after service on the financial institution of an attachment, garnishment, execution, or other legal process against the account. The financial institution shall not be required to pay out any part of the credit balance in the account pursuant to an attachment, garnishment, judgment, or other legal process issued in any proceeding against any one or more but less than all of the persons to whom the account is payable until the institution has been furnished with a certified copy of an order of the court determining which of the persons owned the credit balance at the time the process was served on the institution. Payment pursuant to the process in the amount specified in the court order shall be valid and release the financial institution as to any persons claiming an interest in the account.
A financial institution shall have a lien for its costs and attorneys' fees on the sums on deposit in any multiple-party account in such institution which becomes the subject of any litigation as to the rights to such sums. This lien shall attach only if the financial institution acted in good faith and with good cause.
Nothing in this chapter shall preclude a party to an account from adding the name of another person to such an account with the designation "agent." This agent shall have no present or future interest in the sums on deposit in such account, but the financial institution may honor requests for payment from such account by such agent, whether the principal be incapacitated or deceased at the time the payment is demanded, unless the financial institution has actual knowledge of such death or incapacity. Payments from such account by such financial institution at the request of such agent shall discharge such financial institution from all claims for amounts so paid.
(1) Any of the following provisions in an insurance policy, contract of employment, bond, mortgage, promissory note, deposit agreement, pension plan, trust agreement, conveyance, or any other written instrument effective as a contract, gift, conveyance, or trust are considered nontestamentary, and this title does not invalidate the instrument or any provision:
(a) that money or other benefits previously due to, controlled, or owned by a decedent shall be paid after his death to a person designated by the decedent in either the instrument or a separate writing, including a will, executed at the same time as the instrument or subsequently;
(b) that any money due or to become due under the instrument shall cease to be payable in event of the death of the promisee or the promisor before payment or demand; or
(c) that any property which is the subject of the instrument shall pass to a person designated by the decedent in either the instrument or a separate writing, including a will, executed at the same time as the instrument or subsequently.
(2) Nothing in this section limits the rights of creditors under other laws of this state.
(3)
(a) Any provision in a lease of a safety deposit repository to the effect that two or more persons shall have access to the repository, that purports to create a joint tenancy in the repository or in the contents of the repository, or that purports to vest ownership of the contents of the repository in the surviving lessee is ineffective to create joint ownership of the contents of the repository or to transfer ownership at death of one of the lessees to the survivor.
(b) Ownership of the contents of the repository and devolution of title to these contents is determined according to rules of law without regard to the lease provisions.
(c) The contents of the repository may be delivered on request to any person who has access to the repository by the terms of the lease agreement without liability on the part of the financial institution or other person where the repository is located.
(4) Any motor vehicle, trailer, semitrailer, or boat registration in the names of two or more individuals shall be deemed to be held in joint tenancy with right of survivorship unless otherwise indicated.
A general direction in a trust or other dispositive instrument to pay all taxes imposed as a result of a decedent's death or similar language shall not be construed to include taxes imposed on a "generation skipping transfer" under Section 2601 of the Internal Revenue Code of 1954 (or any successor or amended section of similar content) unless the trustor of the trust or creator of the other dispositive instrument shall express an intention that these taxes be paid out of the property which is subject to the trust or other dispositive instrument by reference to the generation skipping tax or otherwise.
This part shall be known as the "Uniform Transfer on Death Security Registration Act."
In this part, unless the context otherwise requires:
(1) "Beneficiary form" means a registration of a security which indicates the present owner of the security and the intention of the owner regarding the person who will become the owner of the security upon the death of the owner.
(2) "Devisee" means any person designated in a will to receive a disposition of real or personal property.
(3) "Heirs" means those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.
(4) "Person" means an individual, a corporation, an organization, or other legal entity.
(5) "Personal representative" includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status.
(6) "Property" includes both real and personal property or any interest therein and means anything that may be the subject of ownership.
(7) "Register," including its derivatives, means to issue a certificate showing the ownership of a certificated security or, in the case of an uncertificated security, to initiate or transfer an account showing ownership of securities.
(8) "Registering entity" means a person who originates or transfers a security title by registration, and includes a broker maintaining security accounts for customers and a transfer agent or other person acting for or as an issuer of securities.
(9) "Security" means a share, participation, or other interest in property, in a business, or in an obligation of an enterprise or other issuer, and includes a certificated security, an uncertificated security, and a security account.
(10) "Security account" means:
(a) a reinvestment account associated with a security, a securities account with a broker, a cash balance in a brokerage account, cash, interest, earnings, or dividends earned or declared on a security in an account, a reinvestment account, or a brokerage account, whether or not credited to the account before the owner's death; or
(b) a cash balance or other property held for or due to the owner of a security as a replacement for or product of an account security, whether or not credited to the account before the owner's death.
(11) "State" includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.
Only individuals whose registration of a security shows sole ownership by one individual or multiple ownership by two or more with right of survivorship, rather than as tenants in common, may obtain registration in beneficiary form. Multiple owners of a security registered in beneficiary form hold as joint tenants with right of survivorship, as tenants by the entireties, or as owners of community property held in survivorship form, and not as tenants in common.
A security may be registered in beneficiary form if the form is authorized by this or a similar statute of the state of organization of the issuer or registering entity, the location of the registering entity's principal office, the office of its transfer agent or its office making the registration, or by this or similar statute of the law of the state listed as the owner's address at the time of registration. A registration governed by the law of a jurisdiction in which this or similar legislation is not in force or was not in force when a registration in beneficiary form was made is nevertheless presumed to be valid and authorized as a matter of contract law.
A security, whether evidenced by certificate or account, is registered in beneficiary form when the registration includes a designation of a beneficiary to take the ownership at the death of the owner or the deaths of all multiple owners.
Registration in beneficiary form may be shown by the words "transfer on death" or the abbreviation "TOD," or by the words "pay on death" or the abbreviation "POD," after the name of the registered owner and before the name of a beneficiary.
The designation of a TOD beneficiary on a registration in beneficiary form has no effect on ownership until the owner's death. A registration of a security in beneficiary form may be canceled or changed at any time by the sole owner or all then surviving owners without the consent of the beneficiary.
On death of a sole owner or the last to die of all multiple owners, ownership of securities registered in beneficiary form passes to the beneficiary or beneficiaries who survive all owners. On proof of death of all owners and compliance with any applicable requirements of the registering entity, a security registered in beneficiary form may be reregistered in the name of the beneficiary or beneficiaries who survived the death of all owners. Until division of the security after the death of all owners, multiple beneficiaries surviving the death of all owners hold their interests as tenants in common. If no beneficiary survives the death of all owners, the security belongs to the estate of the deceased sole owner or the estate of the last to die of all multiple owners.
(1) A registering entity is not required to offer or to accept a request for security registration in beneficiary form. If a registration in beneficiary form is offered by a registering entity, the owner requesting registration in beneficiary form assents to the protections given to the registering entity by this part.
(2) By accepting a request for registration of a security in beneficiary form, the registering entity agrees that the registration will be implemented on death of the deceased owner as provided in this part.
(3) A registering entity is discharged from all claims to a security by the estate, creditors, heirs, or devisees of a deceased owner if it registers a transfer of the security in accordance with Section 75-6-307 and does so in good faith reliance on:
(a) the registration;
(b) this part; and
(c) information provided to it by affidavit of the personal representative of the deceased owner, or by the surviving beneficiary or by the surviving beneficiary's representatives, or other information available to the registering entity. The protections of this part do not extend to a reregistration or payment made after a registering entity has received written notice from any claimant to any interest in the security objecting to implementation of a registration in beneficiary form. No other notice or other information available to the registering entity affects its right to protection under this part.
(4) The protection provided by this part to the registering entity of a security does not affect the rights of beneficiaries in disputes between themselves and other claimants to ownership of the security transferred or its value or proceeds.
(1) A transfer on death resulting from a registration in beneficiary form is effective by reason of the contract regarding the registration between the owner and the registering entity and this part and is not testamentary.
(2) This part does not limit the rights of creditors of security owners against beneficiaries and other transferees under the laws of this state.
(1) A registering entity offering to accept registrations in beneficiary form may establish the terms and conditions under which it will receive requests for:
(a) registrations in beneficiary form; and
(b) implementation of registrations in beneficiary form, including requests for cancellation of previously registered TOD beneficiary designations and requests for reregistration to effect a change of beneficiary. The terms and conditions so established may provide for proving death, avoiding or resolving any problems concerning fractional shares, designating primary and contingent beneficiaries, and substituting a named beneficiary's descendants to take the place of the named beneficiary in the event of the beneficiary's death. Substitution may be indicated by appending to the name of the primary beneficiary the letters LDPS, standing for "lineal descendants per stirpes." This designation substitutes a deceased beneficiary's descendants who survive the owner for a beneficiary who fails to survive, the descendants to be identified and to share in accordance with the law of the beneficiary's domicile at the owner's death governing inheritance by descendants of an intestate. Other forms of identifying beneficiaries who are to take on one or more contingencies, and rules for providing proofs and assurances needed to satisfy reasonable concerns by registering entities regarding conditions and identities relevant to accurate implementation of registrations in beneficiary form, may be contained in a registering entity's terms and conditions.
(2) The following are illustrations of registrations in beneficiary form which a registering entity may authorize:
(a) Sole owner-sole beneficiary: John S Brown TOD (or POD) John S Brown Jr.
(b) Multiple owners-sole beneficiary: John S Brown Mary B Brown JT TEN TOD John S Brown Jr.
(c) Multiple owners-primary and secondary (substituted) beneficiaries: John S Brown Mary B Brown JT TEN TOD John S Brown Jr SUB BENE Peter Q Brown or John S Brown Mary B Brown JT TEN TOD John S Brown Jr LDPS.
(1) This part shall be liberally construed and applied to promote its underlying purposes and policy and to make uniform the laws with respect to the subject of this part among states enacting it.
(2) Unless displaced by the particular provisions of this part, the principles of law and equity supplement its provisions.
This part applies to registrations of securities in beneficiary form made before or after January 1, 1995, by decedents dying on or after June 30, 1995.
This part is known as the "Uniform Real Property Transfer on Death Act."
As used in this part:
(1) "Beneficiary" means a person who receives property under a transfer on death deed.
(2) "Class gift" means a transfer to a group of persons who are classified by their relationship to one another or the transferor, and who are not individually named in the transferring document.
(3) "Designated beneficiary" means a person designated to receive property in a transfer on death deed.
(4) "Individual" means a natural person.
(5)
(a) "Joint owner" means an individual who owns property concurrently with one or more other individuals with a right of survivorship.
(b) "Joint owner" includes a joint tenant, owner of community property with a right of survivorship, and tenant by the entirety.
(c) "Joint owner" does not include a tenant in common or owner of community property without a right of survivorship.
(6) "Natural person" means a human being.
(7) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(8) "Property" means an interest in real property located in this state that is transferable on the death of the owner.
(9) "Transfer on death deed" means a deed authorized under this part.
(10) "Transferor" means an individual, in their individual capacity, who makes a transfer on death deed.
This part applies to a transfer on death deed made before, on, or after May 8, 2018, by a transferor dying on or after May 8, 2018.
This part does not affect any method of transferring property otherwise permitted under the law of this state.
(1) An individual may transfer property to one or more named beneficiaries effective at the transferor's death by a transfer on death deed.
(2) A class gift may not be made by a transfer on death deed.
A transfer on death deed is revocable even if the deed or another instrument contains a contrary provision.
A transfer on death deed is nontestamentary.
The capacity required to make or revoke a transfer on death deed is the same as that required to make a will.
A transfer on death deed shall:
(1) contain the essential elements and formalities of a properly recordable inter vivos deed;
(2) state that the transfer to the designated beneficiary is to occur at the transferor's death; and
(3) be recorded before the transferor's death in the public records in the county recorder's office of the county where the property is located.
A transfer on death deed is effective without:
(1) notice or delivery to or acceptance by the designated beneficiary during the transferor's life; or
(2) consideration.
(1) Subject to Subsection (2), an instrument is effective to revoke a recorded transfer on death deed, or any part of it, only if the instrument:
(a) is one of the following:
(i) a transfer on death deed that revokes the deed or part of the deed expressly or by inconsistency;
(ii) an instrument of revocation that expressly revokes the deed or part of the deed; or
(iii) an inter vivos deed that revokes the transfer on death deed or part of the deed expressly or by inconsistency; and
(b) is acknowledged by the transferor after the acknowledgment of the deed being revoked and recorded in the public records in the office of the county recorder where the deed is recorded before the transferor's death.
(2) If a transfer on death deed is made by more than one transferor:
(a) revocation by a transferor does not affect the deed as to the interest of another transferor; and
(b) a deed of joint owners is revoked only if it is revoked by all of the living joint owners.
(3) After a transfer on death deed is recorded, it may not be revoked by a revocatory act on the deed.
(4) This section does not limit the effect of an inter vivos transfer of the property.
(5) Property subject to a revocation of a transfer on death deed shall adeem and nonademption statutes shall be inapplicable to the deed.
During a transferor's life, a transfer on death deed does not:
(1) affect an interest or right of the transferor or any other owner, including the right to transfer or encumber the property;
(2) affect an interest or right of a transferee, even if the transferee has actual or constructive notice of the deed;
(3) affect an interest or right of the transferor's secured or unsecured creditors or future creditors, even if they have actual or constructive notice of the deed;
(4) affect the transferor's or designated beneficiary's eligibility for any form of public assistance;
(5) create a legal or equitable interest in favor of the designated beneficiary; or
(6) subject the property to claims or process of the designated beneficiary's creditors.
(1) Except as otherwise provided in the transfer on death deed, Sections 75-2-205, 75-2-702, 75-2-803, 75-2-804, and 75-2-807, on the death of the transferor, the following rules apply to property that is the subject of a transfer on death deed and owned by the transferor at death.
(a) Subject to Subsection (1)(b), the interests in the property are transferred to the designated beneficiaries in accordance with the deed.
(b) The interest of a designated beneficiary is contingent on the designated beneficiary surviving the transferor. Notwithstanding Section 75-2-706, the interest of a designated beneficiary that fails to survive the transferor lapses.
(c) Subject to Subsection (1)(d), concurrent interests are transferred to the beneficiaries in equal and undivided shares with no right of survivorship, unless otherwise specified in the transfer on death deed.
(d) If the transferor has identified two or more designated beneficiaries to receive concurrent interests in the property, the share of one that lapses or fails for any reason is transferred to the other, or to the others in proportion to the interest of each in the remaining part of the property held concurrently.
(2) Subject to Title 57, Chapter 3, Recording of Documents, a beneficiary takes the property subject to all conveyances, encumbrances, assignments, contracts, mortgages, liens, and other interests to which the property is subject at the transferor's death. For purposes of this Subsection (2) and Title 57, Chapter 3, Recording of Documents, the recording of the transfer on death deed is considered to have occurred at the transferor's death.
(3) If a transferor is a joint owner and is:
(a) survived by one or more other joint owners, the property that is the subject of a transfer on death deed belongs to the surviving joint owner or owners with right of survivorship; or
(b) the last surviving joint owner, the transfer on death deed is effective.
(4) A transfer on death deed transfers property without covenant or warranty of title even if the deed contains a contrary provision.
(5) Following the death of the transferor, an affidavit in substantially the form found in Section 57-1-5.1 shall be recorded in the office of the recorder of the county in which the affected property is located. Each affidavit shall:
(a) contain a legal description of the real property that is affected;
(b) reference the entry number and the book and page of the previously recorded transfer on death deed; and
(c) have attached as an exhibit, a copy of the death certificate or other document issued by a governmental agency as described in Section 75-1-107 certifying the transferor's death.
A beneficiary may disclaim all or part of the beneficiary's interest.
(1) To the extent the transferor's probate estate is insufficient to satisfy an allowed claim against the estate or a statutory allowance to a surviving spouse or child, only the estate may enforce the liability against property transferred at the transferor's death by a transfer on death deed.
(2) If more than one property is transferred by one or more transfer on death deeds, the liability under Subsection (1) is apportioned among the properties in proportion to their net values at the transferor's death.
(3) A probate proceeding to enforce the liability under this section shall be commenced not later than 12 months after the transferor's death.
(4) The estate may expressly waive the estate's claim against the property.
(1) An individual may use the following form to create a transfer on death deed under this part:
REVOCABLE TRANSFER ON DEATH DEED
NOTICE TO OWNER
You should carefully read all information on the other side of this form. You may want to consult a lawyer before using this form.
This form must be recorded before your death or it will not be effective. The beneficiary must be a named person.
IDENTIFYING INFORMATION
Owner or Owners Making This Deed:
Printed NameMailing Address
Printed NameMailing Address
Legal Description of Property (Pursuant to Utah Code Section 57-3-105):
Tax Identification Number for Property:
PRIMARY BENEFICIARY
I designate the following beneficiary if the beneficiary survives me:
Printed NameMailing Address
ALTERNATE BENEFICIARY (Optional)
If my primary beneficiary does not survive me, I designate the following alternate beneficiary if that beneficiary survives me:
Printed NameMailing Address
TRANSFER ON DEATH
At my death, I transfer my interest in the described property to the beneficiaries as designated above.
Before my death, I have the right to revoke this deed.
SIGNATURE OF OWNER OR OWNERS MAKING THIS DEED
SignatureDate
Printed Name
SignatureDate
Printed Name
ACKNOWLEDGMENT
(Attach an affidavit of acknowledgment pursuant to Utah Code Section 46-1-6.5 to the form.)
(2) The other sections of this part govern the effect of the form described in Subsection (1) or any other instrument used to create a transfer on death deed.
(1) An individual may use the following form to create an instrument of revocation under this part:
FULL REVOCATION OF TRANSFER ON DEATH DEED
NOTICE TO OWNER
This revocation must be recorded before you die or it will not be effective. This revocation is effective only as to the interests in the property of owners who sign this revocation.
IDENTIFYING INFORMATION
Owner or Owners Making This Deed:
Printed NameMailing Address
Printed NameMailing Address
Legal Description of Property (Pursuant to Utah Code Section 57-3-105):
Tax Identification Number for Property:
REVOCATION
I revoke all my previous transfers of this property by transfer on death deed.
SIGNATURE OF OWNER OR OWNERS MAKING THIS DEED
SignatureDate
Printed Name
SignatureDate
Printed Name
ACKNOWLEDGMENT
(Attach an affidavit of acknowledgment pursuant to Utah Code Section 46-1-6.5 to the form.)
(2) The other sections of this part govern the effect of the form described in Subsection (1) or any other instrument used to revoke a transfer on death deed.
In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among the states that enact it.
This part modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Sec. 7001, et seq., but does not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Sec. 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Sec. 7003(b).
As used in this chapter:
(1) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(2) "Electronic record" means a record created, generated, sent, communicated, received, or stored by electronic means.
(3) "Electronic signature" means an electronic symbol or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.
(4) "Information" includes data, text, images, codes, computer programs, software, and databases.
(5)
(a) "Non-testamentary estate planning document" means a record relating to estate planning that is readable as text at the time of signing and is not a will or contained in a will.
(b) "Non-testamentary estate planning document" includes a record readable as text at the time of signing that creates, exercises, modifies, releases, or revokes:
(i) a trust instrument;
(ii) a trust power that under the terms of the trust requires a signed record;
(iii) a certification of a trust under Section 75B-2-1013;
(iv) a power of attorney that is durable under Title 75A, Chapter 2, Uniform Power of Attorney Act;
(v) an agent's certification under Section 75A-2-302 of the validity of a power of attorney and the agent's authority;
(vi) a power of appointment;
(vii) an advance directive, including an advance health care directive, directive to physicians, natural death statement, living will, and medical or physician order for life-sustaining treatment;
(viii) a record directing disposition of an individual's body after death;
(ix) a nomination of a guardian for the signing individual;
(x) a nomination of a guardian for a minor child or disabled adult child;
(xi) a mental health treatment declaration;
(xii) a community property survivorship agreement;
(xiii) a disclaimer under Section 75-2-801; and
(xiv) any other record intended to carry out an individual's intent regarding property or health care while incapacitated or on death.
(c) "Non-testamentary estate planning document" does not include a deed of real property or certificate of title for a motor vehicle, watercraft, or aircraft.
(6) "Person" means an individual, estate, business or nonprofit entity, government or governmental subdivision, agency, or instrumentality, or other legal entity.
(7) "Power of attorney" means a record that grants authority to an agent to act in place of the principal, even if the term is not used in the record.
(8) "Record" means information:
(a) inscribed on a tangible medium; or
(b) stored in an electronic or other medium and retrievable in perceivable form.
(9)
(a) "Security procedure" means a procedure to verify that an electronic signature, record, or performance is that of a specific person or to detect a change or error in an electronic record.
(b) "Security procedure" includes a procedure that uses an algorithm, code, identifying word or number, encryption, or callback or other acknowledgment procedure.
(10) "Settlor" means a person, including a testator, that creates or contributes property to a trust.
(11) "Sign" means, with present intent to authenticate or adopt a record to:
(a) execute or adopt a tangible symbol; or
(b) attach to or logically associate with the record an electronic signature.
(12)
(a) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or other territory or possession subject to the jurisdiction of the United States.
(b) "State" includes a federally recognized Indian tribe.
(13) "Terms of a trust" means:
(a) except as provided in Subsection (13)(b), the manifestation of the settlor's intent regarding a trust's provisions as:
(i) expressed in the trust instrument; or
(ii) established by other evidence that would be admissible in a judicial proceeding; or
(b) the trust's provisions as established, determined, or amended by:
(i) a trustee or other person in accordance with applicable law;
(ii) a court order; or
(iii) a nonjudicial settlement agreement under Section 75B-2-110.
(14) "Trust instrument" means an instrument executed by the settlor that contains terms of the trust, including any amendments.
(15) "Will" includes a codicil and a testamentary instrument that merely appoints an executor, revokes or revises another will, nominates a guardian, or expressly excludes or limits the right of an individual or class to succeed to property of the decedent passing by intestate succession.
This chapter shall be construed and applied to:
(1) facilitate electronic estate planning documents and signatures consistent with other law; and
(2) be consistent with reasonable practices concerning electronic documents and signatures and continued expansion of those practices.
(1) Except as provided in Subsection (2), this part applies to an electronic non-testamentary estate planning document and an electronic signature on a non-testamentary estate planning document.
(2) This part does not apply to a non-testamentary estate planning document if the document precludes use of an electronic record or electronic signature.
(3) This part does not affect the validity of an electronic record or electronic signature that is valid under:
(a) Title 46, Chapter 4, Uniform Electronic Transactions Act; or
(b) Chapter 2, Part 14, Uniform Electronic Wills Act.
The laws of this state and principles of equity applicable to a non-testamentary estate planning document apply to an electronic non-testamentary estate planning document except as modified by this part.
(1) This part does not require a non-testamentary estate planning document or signature on a non-testamentary estate planning document to be created, generated, sent, communicated, received, stored, or otherwise processed or used by electronic means or in electronic form.
(2) A person is not required to have a non-testamentary estate planning document in electronic form or signed electronically even if the person previously created or signed a non-testamentary estate planning document by electronic means.
(3) A person may not waive the provisions of this section.
(1) A non-testamentary estate planning document or a signature on a non-testamentary estate planning document may not be denied legal effect or enforceability solely because the non-testamentary estate planning document or a signature on a non-testamentary estate planning document is in electronic form.
(2) If other law of this state requires a non-testamentary estate planning document to be in writing, an electronic record of the document satisfies this requirement.
(3) If other law of this state requires a signature on a non-testamentary estate planning document, an electronic signature satisfies the requirement.
(1)
(a) An electronic non-testamentary estate planning document or electronic signature on an electronic non-testamentary estate planning document is attributable to a person if the electronic non-testamentary estate planning document or electronic signature on an electronic non-testamentary estate planning document was the act of the person.
(b) The act of the person may be shown in any manner, including by showing the efficacy of a security procedure applied to determine the person to which the electronic record or electronic signature was attributable.
(2) The effect of attribution to a person under Subsection (1) of a document or signature is determined from the context and surrounding circumstances at the time of the document's or signature's creation, execution, or adoption and as provided by law.
If other law of this state requires a signature or record to be notarized, acknowledged, verified or made under oath, the requirement is satisfied with respect to an electronic non-testamentary estate planning document if an individual authorized to perform the notarization, acknowledgment, verification, or oath attaches or logically associates the individual's electronic signature on the document together with all other information required to be included under the other law.
(1) If other law of this states bases the validity of a non-testamentary estate planning document on whether the non-testamentary estate planning document is signed, witnessed, or attested by another individual, the signature, witnessing, or attestation of that individual may be electronic.
(2)
(a) As used in this Subsection (2), "electronic presence" means that two or more individuals in different locations are able to communicate in real time to the same extent as if the individuals were physically present in the same location.
(b) If other law of this state bases the validity of a non-testamentary estate planning document on whether the non-testamentary estate planning document is signed, witnessed, or attested by another individual in the presence of the individual signing the document, the presence requirement is satisfied if the individuals are in each other's electronic presence.
(1) As used in this section, "governmental agency" means an executive, legislative, or judicial agency, department, board, commission, authority, institution, or instrumentality of the federal government or of a state or of a county, municipality, or other political subdivision of a state.
(2) Except as provided in Subsection (3), if other law of this state requires an electronic non-testamentary estate planning document to be retained, transmitted, copied, or filed, the requirement is satisfied by retaining, transmitting, copying, or filing an electronic record that:
(a) accurately reflects the information in the document after the document was first generated in final form as an electronic record or under Section 75-13-209; and
(b) remains accessible to the extent required by the other law.
(3) A requirement under Subsection (2) to retain a record does not apply to information the sole purpose of which is to enable the record to be sent, communicated, or received.
(4) A person may satisfy Subsection (2) by using the services of another person.
(5) If other law of this state requires a non-testamentary estate planning document to be presented or retained in the non-testamentary estate planning document's original form, or provides consequences if a non-testamentary estate planning document is not presented or retained in the non-testamentary estate planning document's original form, an electronic record retained in accordance with Subsection (2) satisfies the other law.
(6) This section does not preclude a governmental agency from specifying requirements for the retention of a record subject to the agency's jurisdiction in addition to those in this section.
An individual may create a certified paper copy of an electronic non-testamentary estate planning document by affirming under penalty of perjury that the paper copy is a complete and accurate copy of the document.
Evidence relating to an electronic non-testamentary estate planning document or an electronic signature on the document may not be excluded in a proceeding solely because the non-testamentary estate planning document or electronic signature is in electronic form.
In applying and construing this uniform act, a court shall consider the promotion of uniformity in the law among jurisdictions that enact the uniform act.
This chapter modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Sec. 7001 et seq., but does not modify, limit or supersede 15 U.S.C. Sec. 7001(c), or authorize electronic delivery of any of the notices described in 15 U.S.C. Sec. 7003(b).
This chapter applies to an electronic non-testamentary estate planning document created, signed, generated, sent, communicated, received, or stored before, on, or after May 6, 2026.
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