Salt Lake City, UT asked in Probate for Utah

Q: Fathers will states his house to be left to my sister. if rented or sold money split between his children. she says No.

She is also the executor of his will and states after probate it is hers and she doesn't have to follow through with with his wishes. Is this legal? if not what can be done?

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2 Lawyer Answers
William Tyler Melling
William Tyler Melling
Answered
  • Probate Lawyer
  • Cedar City, UT
  • Licensed in Utah

A: I'm sorry for your loss. Much depends on the wording of the Will. Many properly-drafted Wills would contain language allowing your sister to occupy the home during her lifetime, but that the home be held in a Trust instead of in her name to avoid these types of problems. Even so, it is arguable that, as part of the probate process, she would be required to set up such a Trust. I would suggest contacting an estate planning attorney in your area to help you through the probate process and ensure that it is structured in a way that honors his Will as required by law.

Wesley Winsor agrees with this answer

1 user found this answer helpful

Wesley Winsor
Wesley Winsor
PREMIUM
Answered
  • Probate Lawyer
  • Saint George, UT
  • Licensed in Utah

A: The problem here is that your father's will is really a disguised testamentary trust ( a trust created upon the death of the testator).

He is using language that suggests that there isn't immediate distribution. This is not typical of a will. This is typical of a trust. The normal flow of a probate is that the executor opens the probate then distributes the assets, then closes the probate. The language in here could only work if sister decided to sell it quickly. Otherwise, the testator's intent would be frustrated.

You will probably need an attorney to help you present the argument that the Court should interpret the will as making a testamentary trust with the provisions in the will governing the trust and afterward compel your sister to transfer the house into the trust.

I hope this helps.

Wes

1 user found this answer helpful

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