General DefinitionAny part of a decedent's estate not effectively disposed of by will passes by intestate succession to the decedent's heirs as provided in the statute, unless that distribution is modified by the decedent's will. Title 75 Ch. 2 Sec. 101 (1).
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. Title 75 Ch. 2 Sec. 101 (2).
Order of DistributionThe intestate share of a decedent's surviving spouse is:
- The entire intestate estate if no descendant of the decedent survives the decedent; or all of the decedent's surviving descendants are also descendants of the surviving spouse;
- 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.
If the intestate estate passes to both the decedent's surviving spouse and to other heirs, then any non-probate transfer received by the surviving spouse is added to the probate estate in calculating the intestate heirs' shares and is conclusively treated as an advance in determining the spouse's share. Title 75 Ch. 2 Sec. 102.
Any part of the intestate estate not passing to a decedent's surviving spouse or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals who survive the decedent:
- To the decedent's descendants per capita at each generation
- If there is no surviving descendant, to the decedent's parents equally if both survive, or to the surviving parent if only one survives;
- 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
- 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. Half passes 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. Half passes 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.
- 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.
- If there is no other taker but the decedent has one deceased spouse, the estate or part of the estate passes to that spouse's descendants per capita. If decedent has more than one deceased spouse, an equal share of the estate or part of the estate passes to each set of descendants, taking per capita at each generation. Title 75 Ch. 2 Sec. 103.
Utah is a common law, elective share state.
CapacityThe testator of a valid will must be at least 18 years of age and of sound mind. Title 75 Ch. 2 Sec. 501.
DraftingA will must be in writing, 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. It must be signed by at least two individuals, each of whom signed within a reasonable time after he witnessed either the signing of the will or the testator's acknowledgment of that signature or acknowledgment of the will.
A will that 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. 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. Title 75 Ch. 2 Sec. 502.
A will may be simultaneously executed, attested, and made self-proved, by acknowledgment 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. Title 75 Ch. 2 Sec. 504.
BeneficiariesA beneficiary is any person who has any present and/or future interest, vested or contingent.
An individual born 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. Title 75 Ch. 2 Sec. Ch. 104.
ModificationsA will or any part of the will is revoked by executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or 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. A burning, tearing, obliterating destroying or canceling is a "revocatory act on the will." Title 75 Ch. 2 Sec. 507 (1).
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. Title 75 Ch. 2 Sec. 507 (3).
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. Title 75 Ch. 2 Sec. 802.
Naming of Personal RepresentativeTo 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. Title 75 Ch. 3 Sec. 103.
Submission of WillA will must be declared to be valid by an order of informal probate by the registrar, or an adjudication of probate by the court. Title 75 Ch. 3 Sec. 102.
NotificationsAny 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 will 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 will be made or accepted without notice to the demandant or his attorney. Title 75 Ch. 3 Sec. 204.
InventoryWithin three months after his appointment, a personal representative must 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 must send a copy of the inventory to interested persons who request it. He may also file the original of the inventory with the court. Title 75 Ch. 3 Sec. 705.
Homestead, Elective Share, Exempt Property and the Family AllowanceA 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 the homestead allowance divided by the number of minor and dependent children of the decedent. Title 75 Ch. 2 Sec. 402.
When a married person dies, the surviving spouse is entitled to an elective share of the estate. The elective share is one-third of the augmented estate as defined by the statute.
If the elective-share amount is less than $75,000, the surviving spouse is entitled to a supplemental elective-share amount equal to $75,000. 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 amount. Title 75 Ch. 2 Sec. 202.
In addition to the homestead allowance, the surviving spouse is entitled 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. Title 75 Ch. 2 Sec. 403.
The 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. Title 75 Ch. 2 Sec. 404.
Debts and DistributionsIf the applicable assets of the estate are insufficient to pay all claims in full, the personal representative must make payment in the following order:
- Reasonable funeral expenses;
- Costs and expenses of administration;
- Debts and taxes with preference under federal law;
- 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 26-19-405 applies,
- Debts and taxes with preference under other laws of this state; and
- All other claims.
No preference will 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. Title 75 Ch. 3 Sec. 805.
The tax is imposed on the taxable estate in an amount equal to the federal credit. If any property of a resident is subject to a death tax imposed by another state for which a credit is allowed and the tax is not qualified by a reciprocal provision allowing the property to be taxed in this state, the amount of tax due under this section will be credited with the lesser of the amount of the death tax paid the other state and credited against the federal estate tax or an amount computed by multiplying the federal credit by a fraction, the numerator of which is the value of the property subject to the death tax imposed by the other state and the denominator of which is the value of the decedent's gross estate. Title 59 Ch. 11 Sec. 103. Because there is no current federal credit, there is no estate tax in Utah.
Income Tax Charitable Deductions and/or Credits
Utah allows a taxpaying resident to deduct itemized charitable gifts in the same manner as the IRS. Title 59 Ch. 10 Sec. 103.
Utah provides a tax credit allowed for cash contributions to a nonprofit rehabilitation sheltered workshop facility operating in Utah for persons with disabilities that is certified by the Department of Human Services as a qualifying facility. The credit is 50% of the total cash contributed up to $200. If the credit is claimed, the credit amount cannot also be claimed as an itemized charitable deduction. Title 59 Ch. 10 Sec. 1004.
Gift Annuity Requirements
Utah, a "conditional exemption" state, governs the issuance of charitable gift annuities under the Title 31A Ch. 1 Sec. 301 and Title 31A Ch 22 Sec.1305(2). Section 31A-1-301 provides that issuance of gift annuities by a qualifying organization does not constitute the business of insurance and the charity is not an insurer.