Is It Too Late to Probate?

Although it’s generally advisable to administer an estate promptly, it’s not at all uncommon for property to be left in a decedent’s name for years after death.   This can happen when the estate is never probated, or when certain property is not administered along with the rest of the estate.   Often, this happens when a surviving spouse or child continues living in a home that is titled solely to the decedent but does not probate the estate because the decedent’s other property consisted of non-probate assets such as bank accounts held in joint tenancy.

The question of how to go about changing ownership of a decedent’s property depends on whether or not there was a will or trust, how long it’s been since the decedent’s death, and what kind of property is involved.

If there is a will, it must be probated so that the estate can be administered according to its terms.  If there is a trust, the property held by the trust should be administered according to its terms.  If a decedent had a trust but left some property in his or her name, he or she probably had a pour-over will that needs to be probated so that property can be put into the trust.  Utah law, with limited exception, requires wills to be probated within three years of a person’s death (although if someone fraudulently concealed a will, there may be a remedy against that person).  If no probate is initiated within three years of a property owner’s death, a court can still enter an order determining the legal heirs of the property owner’s estate, and appoint a personal representative to distribute the property to those heirs according to the laws of intestacy.

Regardless of how much time has passed, it may still be possible to change legal ownership of the property from the name of the decedent to the heirs.  However, the longer you wait, the more challenging it may become, particularly if more than one person has a claim to the estate property. For example, an adverse claimant could attempt to quiet title to real property.

If you need help with administering an estate, call us at (801) 988-9400 to set up a consultation.

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