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How Intestate Succession Works in the Probate Process

How Intestate Succession Works in the Probate Process

Most people want to avoid having their estate go through probate. This is due to the perceived difficulties of the probate process. Some people mistakenly believe that failing to make a will can bypass probate. In fact, the opposite is true. When a decedent does not have a will in place, the estate will likely end up in probate hearings. See how intestate succession affects the distribution of the estate during probate.

Probate Concerns

Essentially, probate is the process that resolves any issues with the decedent's estate. This may involve paying pending bills and distributing any remaining assets. Yet, there are cases that do not go through probate despite the absence of a will. These cases involve estates that have a value less than $100,000. In these situations, it is possible to file a small estate affidavit instead. Also, certain assets are exempt from probate, such as those held in a trust. An estate lawyer can help identify whether certain assets need to go through probate.

A Look at Intestate Succession

An estate without a will needs to rely on the rules for intestate succession. A probate court will manage this process. Generally, the court with jurisdiction will hold probate hearings during this time. This will help the court come to a determination about how to distribute the assets.

Intestate succession helps the courts fairly distribute such assets among heirs. According to the law, an heir must survive the decedent by at least 120 hours to receive an inheritance. In addition, there is a specific path that the distribution will follow. Sections 75-2-102 and 75-2-103 of the Utah Code describe the order for estates in Utah. According to the code, the first level of distribution is to the surviving spouse. If no spouse is available to inherit the estate, the distribution proceeds as follows:

  • Descendents, i.e. children.
  • Parents.
  • Descendant's of parents.
  • Grandparents.
  • Descendants of grandparents.

If a person dies without any of the above relatives, the estate can default to the state. This is known as escheat. Yet, this is a very rare situation.

Another Important Consideration

The tax consequences of an estate transfer worry a lot of heirs. Thus, it serves to remind those in Utah that the state does not impose an estate tax. However, a federal estate tax still applies. Yet, the absence of an additional tax by the state provides some relief to heirs of an estate. Speak to an estate attorney to learn more about the effects of the federal estate tax.

Final Thoughts

Intestate succession and probate can get fairly complex. This is why it is a good idea to get the help of an estate lawyer early on. Estate planning is the best tool to ensure that your assets are distributed according to your desires.

To learn more about your estate law options in Utah, contact us at TR Spencer & Associates by visiting

intestate succession, intestacy laws