Barbara Sadler: Duties Of A Utah Probate Personal Representative

A Personal Representative commonly referred to as an Executor, of an estate is an individual or institution designated to administer the estate of a decedent. As a fiduciary, a Personal Representative must settle and distribute the estate of the decedent as efficiently as possible by adhering to the directions outlined in the decedent’s Last Will and Testament and the probate laws of the state where the estate is being administered. The primary duty is to protect the estate in a manner consistent with the decedent’s wishes. Although this may appear relatively simple, it is important that the Personal Representative understand the responsibilities associated with the position. As a word of caution, failure to adhere to these duties and responsibilities can result in the filing of lawsuits against the Personal Representative of the estate for breach of fiduciary duty.

Generally speaking, a Personal Representative is responsible for collecting the assets of the estate, protecting the estate property, preparing an inventory of the property, paying various estate expenses, paying valid claims (including debts and taxes) against the estate, representing the estate in claims against others, and eventually distributing the estate property to the beneficiaries. In the event the decedent passed away with a Will, the Will may often impose additional duties on the Personal Representative that are not required by law.

DUTIES

In Utah, a personal representative has a duty to administer the decedent’s estate and distribute it to the decedent’s lawful heirs and beneficiaries in accordance with Probate law and with the decedent’s Will. The personal representative should act as quickly and efficiently as is consistent with the best interests of the estate and must use his or her authority for the best interests of the decedent’s heirs and beneficiaries. The personal representative has many additional duties, including the following.

• Take possession, manage, and preserve the decedent’s property: The personal representative has a duty to take possession of the decedent’s property unless the decedents will provide otherwise. The personal representative may, however, leave the decedent’s real property or tangible personal property with a person who is presumed to be entitled to the property until the personal representative needs possession of the property to administer the decedent’s estate.

• Manage, protect, and preserve, and pay taxes on, the estate in the personal representative’s possession.

• Prepare an inventory of the decedent’s property: The personal representative has a duty to prepare within three months after being appointed an inventory of property owned by the decedent at the time of death. Each item of property listed on the inventory should be described in reasonable detail. For each item, the inventory should also indicate its fair market value on the date of the decedent’s death and the type and amount of any mortgage, lien, or other encumbrance. If an item was appraised, the inventory should indicate the name and address of the appraiser. Send a copy of the inventory to each interested person who requests it. Also, the personal representative may file the inventory with the court.

• Prepare a supplemental inventory that lists any property not included in the original inventory that comes to the personal representative’s knowledge, shows the correct description and fair market value of any property listed in the original inventory which the personal representative has since learned was incorrectly described or valued, and indicates appraisers or other data relied upon.

• Furnish a copy of any supplemental inventory to persons interested in the new information. Also, if the original inventory was filed with the court, the supplemental inventory should also be filed with the court.

• Publish a notice to creditors: The personal representative has a duty to publish a notice to creditors in a newspaper of general circulation in the county where the probate is filed. The notice should be published once a week for three successive weeks. The notice should announce the personal representative’s appointment and address and state that creditors of the estate should present their claims within three months after the date of the first publication of the notice or be forever barred. As part of the administrative duties, the Personal Representative must give legal notice of the decedent’s death to known creditors and potential creditors. Creditors generally have a prescribed time in which to file claims against the decedent’s estate. Upon the expiration of this period, the Personal Representative must pay all legitimate claims against the estate. Failure to file a claim against the estate within the prescribed time frame forever bars future claims of more creditors. It should be emphasized that prior to payment, the Personal Representative should consider the validity of all claims against the estate.

• Pay creditors’ claims and applicable taxes: With respect to claims filed by creditors, the personal representative has a duty to provide for homestead, family, and support allowances before paying creditors’ claims and decide which creditors’ claims to allow or disallow.

Pay allowed creditors’ claims in the following order:

• Reasonable funeral expenses;
• Costs and expenses of administering the estate
• reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation of persons attending him;
• debts and taxes with preference under other law

The personal representative also has the duty to file any applicable tax returns and pay any applicable taxes. Applicable tax returns will include the decedent’s final income tax returns and may also include, depending on the circumstances, income tax returns for the decedent’s estate, gift tax returns, or estate tax returns.

Preparation and Filing of Tax Returns

In addition to the accounting, the Personal Representative is responsible for preparing and filing all applicable income tax returns on behalf of the decedent for the period of time the decedent was alive and on behalf of the decedent’s estate. It is important to remember that death terminates the decedent’s tax year and thereafter the decedent’s estate is a separate taxpayer. The Personal Representative is also responsible for paying all applicable state and federal estate taxes. These responsibilities may include at least four separate sets of tax returns:

• the decedent’s final income tax returns;
• applicable federal and state income tax returns of the trust or estate;
• applicable federal and state estate tax returns; and
• any gift tax returns

Each return has a specific due date and in some instances a tax return may be required to be filed even when no taxes are due.

Distribution of Assets and Closing the Estate

Once all of the assets are collected and the claims are satisfied, the Personal Representative must distribute the assets consistent with the terms of the Will or the state’s probate laws. When the court approves the final account and the assets have been distributed, the estate is considered closed. At this point, the responsibilities of the Personal Representative end. Generally, the standard of care required of the personal representative with respect to management of the assets of an estate is the same as required of a Trustee, exercising reasonable skill and caution and acting as a prudent investor.

POWERS

A personal representative in Utah has many powers some of which are listed below. Among his or her powers, the personal representative may:
• Employ a qualified, disinterested appraiser to ascertain the fair market value of an asset of the decedent if the value is unclear.
• Receive reasonable compensation for services to the estate.
• Petition the court for an order that determines, if the decedent left a Will, the validity of the Will and the beneficiaries under the Will, or that determines, if the decedent did not leave a valid Will, the decedent’s lawful heirs, that approves a final account by the personal representative of the estate’s property and finances, that determines a final distribution of the estate.
• Petition the court, after the estate has been distributed, for an order approving the final distribution of the estate and discharging the personal representative from further liability.
• Informally close the estate, no earlier than four months after being appointed, by filing a sworn statement with the court that complies with Utah Code

How to Be the Personal Representative of an Estate

To become the personal representative, you must file an Application for Administration for an intestate estate. The application must be filled out with the required information, including your priority for being appointed personal representative and the names and addresses of the surviving spouse and all beneficiaries. Probate rules are established by your state and include identifying who can serve as an administrator and the priority of appointment. A surviving spouse usually is given first choice at filling this role. If they decline, the deceased’s children are next in line. When there is no spouse or children, family members may be selected. If more than one person with priority wants to serve as administrator, and the heirs can’t agree, then the court will choose.

These basic steps will show you how to file for executor of an estate without a will

Normally an executor is named in a will, but when someone dies without a will, the court must appoint an executor to administer the estate. Executor (or executrix if female) is the traditional term for the person named in a will and subsequently appointed by the probate court to oversee the estate of a person who has died with a will. Some states have now adopted statutes that replace the term executor with personal representative so the terms are often used interchangeably.
A testator, or person making a will, often names someone he trusts in the will to manage his affairs after his death. This person is referred to as a personal representative or executor. Since family members are often the most trusted people in the testator’s life, one or more of them are frequently named as personal representatives even though they may also be devisees, or beneficiaries, under his will.

Receive Written Waivers From Other Parties or Candidates

You need to receive a written waiver from other candidates for administrator that have higher priority. For example, if you are the brother of the deceased, you may need to get a written waiver from the deceased’s spouse and children before you can be appointed administrator. In most states, probate will occur in the county where the deceased had residence. You need to contact that court to understand their filing requirements and timelines. Frequently you will need to file a Petition for Probate along with the Notice of Petition to Administer Estate.

Selection

If no executor is named in the will or the executor is unable to serve, the probate court appoints an administrator. By law, the selection of this individual is based on his legal relationship to the deceased person. This is referred to as the priority ladder and at the top is the surviving spouse, provided she stands to inherit under the will. If she will not inherit, then the priority goes to any other person who will. If these individuals are unable or unwilling to serve or if there is no will, then priority goes to the surviving spouse. If there is no surviving spouse, all other living heirs have priority. If no heirs can be found, a public administrator will be appointed.

Disqualification

Regardless of priority, there are some certain legal restrictions on who may accept an appointment as an administrator. First, no administrator can be under the age of 18 or be under the custody of a guardian or conservator. Also, if the administrator feloniously and intentionally killed the deceased person, this conviction results in an immediate disqualification. The administrator cannot be the decedent’s former spouse or a relative of the former spouse. The probate court also has wide discretion to deny any appointment if found to be in the best interests of the estate.

Termination

The appointment of an administrator terminates when the administrator dies or becomes incapacitated. He also may resign voluntarily with the consent of the probate court. Also, a relative of the decedent may petition the court for removal of the administrator under certain circumstances. Grounds for involuntary removal include disregarding an order of the court, intentional misrepresentation of facts leading to the administrator’s appointment and mismanagement of the estate. Once removed, a successor administrator will be appointed in the same manner as the initial administrator.

Removal of an Executor of Estate’s Responsibilities

An estate executor is responsible for handling the decedent’s, or deceased people, estate including bill payment and property distribution. The executor is named in the decedent’s will; he receives his authority from court through legal proceedings known as probate. If an executor’s responsibilities are removed before he completes his duties, a new person must be appointed to finish settling the estate.

Probate Lawyer Free Consultation

When you need legal help with a probate in Utah, please call Ascent Law LLC for your free estate law consultation (801) 676-5506. We want to help you.