S.B. 55

1

UNIFORM PROBATE CODE AMENDMENTS
2 1999 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: John L. Valentine
5 AN ACT RELATING TO THE UNIFORM PROBATE CODE; AMENDING DEFINITIONS;
6 MODIFYING PROVISIONS REGARDING ELECTIVE SHARES, DECEDENT'S NET
7 PROBATE ESTATE, EXCLUSIONS, VALUATION, AND OVERLAPPING APPLICATION;
8 AND MAKING TECHNICAL CORRECTIONS.
9 This act affects sections of Utah Code Annotated 1953 as follows:
10 AMENDS:
11 75-1-201, as repealed and reenacted by Chapter 39, Laws of Utah 1998
12 75-2-202, as repealed and reenacted by Chapter 39, Laws of Utah 1998
13 75-2-204, as repealed and reenacted by Chapter 39, Laws of Utah 1998
14 75-2-208, as enacted by Chapter 39, Laws of Utah 1998
15 75-2-209, as enacted by Chapter 39, Laws of Utah 1998
16 75-5-401, as last amended by Chapter 104, Laws of Utah 1988
17 Be it enacted by the Legislature of the state of Utah:
18 Section 1. Section 75-1-201 is amended to read:
19 75-1-201. General definitions.
20 Subject to additional definitions contained in the subsequent chapters that are applicable
21 to specific chapters, parts, or sections, and unless the context otherwise requires, in this code:
22 (1) "Agent" includes an attorney-in-fact under a durable or nondurable power of attorney,
23 an individual authorized to make decisions concerning another's health care, and an individual
24 authorized to make decisions for another under a natural death act.
25 (2) "Application" means a written request to the registrar for an order of informal probate
26 or appointment under Title 75, Chapter 3, Part 3, Informal Probate and Appointment Proceedings.
27 (3) "Beneficiary," as it relates to trust beneficiaries, includes a person who has any present

28 or future interest, vested or contingent, and also includes the owner of an interest by assignment
29 or other transfer; as it relates to a charitable trust, includes any person entitled to enforce the trust;
30 as it relates to a "beneficiary of a beneficiary designation," refers to a beneficiary of an insurance
31 or annuity policy, of an account with POD designation, of a security registered in beneficiary form
32 (TOD), or of a pension, profit-sharing, retirement, or similar benefit plan, or other nonprobate
33 transfer at death; and, as it relates to a "beneficiary designated in a governing instrument," includes
34 a grantee of a deed, a devisee, a trust beneficiary, a beneficiary of a beneficiary designation, a
35 donee, appointee, or taker in default of a power of appointment, and a person in whose favor a
36 power of attorney or a power held in any individual, fiduciary, or representative capacity is
37 exercised.
38 (4) "Beneficiary designation" refers to a governing instrument naming a beneficiary of an
39 insurance or annuity policy, of an account with POD designation, of a security registered in
40 beneficiary form (TOD), or of a pension, profit-sharing, retirement, or similar benefit plan, or other
41 nonprobate transfer at death.
42 (5) "Child" includes any individual entitled to take as a child under this code by intestate
43 succession from the parent whose relationship is involved and excludes any person who is only
44 a stepchild, a foster child, a grandchild, or any more remote descendant.
45 (6) "Claims," in respect to estates of decedents and protected persons, includes liabilities
46 of the decedent or protected person, whether arising in contract, in tort, or otherwise, and liabilities
47 of the estate which arise at or after the death of the decedent or after the appointment of a
48 conservator, including funeral expenses and expenses of administration. "Claims" does not include
49 estate or inheritance taxes, or demands or disputes regarding title of a decedent or protected person
50 to specific assets alleged to be included in the estate.
51 (7) "Conservator" means a person who is appointed by a court to manage the estate of a
52 protected person.
53 (8) "Court" means any of the courts of record in this state having jurisdiction in matters
54 relating to the affairs of decedents.
55 (9) "Descendant" of an individual means all of his descendants of all generations, with the
56 relationship of parent and child at each generation being determined by the definition of child and
57 parent contained in this title.
58 (10) "Devise," when used as a noun, means a testamentary disposition of real or personal

59 property and, when used as a verb, means to dispose of real or personal property by will.
60 (11) "Devisee" means any person designated in a will to receive a devise. For the purposes
61 of Title 75, Chapter 3, Probate of Wills and Administration, in the case of a devise to an existing
62 trust or trustee, or to a trustee in trust described by will, the trust or trustee is the devisee, and the
63 beneficiaries are not devisees.
64 (12) "Disability" means cause for a protective order as described by Section 75-5-401 .
65 (13) "Distributee" means any person who has received property of a decedent from his
66 personal representative other than as a creditor or purchaser. A testamentary trustee is a distributee
67 only to the extent of distributed assets or increment thereto remaining in his hands. A beneficiary
68 of a testamentary trust to whom the trustee has distributed property received from a personal
69 representative is a distributee of the personal representative. For purposes of this provision,
70 "testamentary trustee" includes a trustee to whom assets are transferred by will, to the extent of the
71 devised assets.
72 (14) "Estate" includes the property of the decedent, trust, or other person whose affairs are
73 subject to this title as originally constituted and as it exists from time to time during
74 administration.
75 (15) "Exempt property" means that property of a decedent's estate which is described in
76 Section 75-2-403 .
77 (16) "Fiduciary" includes a personal representative, guardian, conservator, and trustee.
78 (17) "Foreign personal representative" means a personal representative of another
79 jurisdiction.
80 (18) "Formal proceedings" means proceedings conducted before a judge with notice to
81 interested persons.
82 (19) "Governing instrument" means a deed, will, trust, insurance or annuity policy, account
83 with POD designation, security registered in beneficiary form (TOD), pension, profit-sharing,
84 retirement, or similar benefit plan, instrument creating or exercising a power of appointment or a
85 power of attorney, or a dispositive, appointive, or nominative instrument of any similar type.
86 (20) "Guardian" means a person who has qualified as a guardian of a minor or
87 incapacitated person pursuant to testamentary or court appointment, but excludes one who is
88 merely a guardian ad litem.
89 (21) "Heirs," except as controlled by Section 75-2-711 , means persons, including the

90 surviving spouse and state, who are entitled under the statutes of intestate succession to the
91 property of a decedent.
92 (22) "Incapacitated person" means [an individual described in Section 75-5-303 ] any
93 person who is impaired by reason of mental illness, mental deficiency, physical illness or
94 disability, chronic use of drugs, chronic intoxication, or other cause, except minority, to the extent
95 of lacking sufficient understanding or capacity to make or communicate responsible decisions.
96 (23) "Informal proceedings" mean those conducted without notice to interested persons
97 by an officer of the court acting as a registrar for probate of a will or appointment of a personal
98 representative.
99 (24) "Interested person" includes heirs, devisees, children, spouses, creditors, beneficiaries,
100 and any others having a property right in or claim against a trust estate or the estate of a decedent,
101 ward, or protected person. It also includes persons having priority for appointment as personal
102 representative and other fiduciaries representing interested persons. The meaning as it relates to
103 particular persons may vary from time to time and shall be determined according to the particular
104 purposes of, and matter involved in, any proceeding.
105 (25) "Issue" of a person means descendant as defined in Subsection (9).
106 (26) "Joint tenants with the right of survivorship" and "community property with the right
107 of survivorship" includes coowners of property held under circumstances that entitle one or more
108 to the whole of the property on the death of the other or others, but excludes forms of coownership
109 registration in which the underlying ownership of each party is in proportion to that party's
110 contribution.
111 (27) "Lease" includes an oil, gas, or other mineral lease.
112 (28) "Letters" includes letters testamentary, letters of guardianship, letters of
113 administration, and letters of conservatorship.
114 (29) "Minor" means a person who is under [21] 18 years of age.
115 (30) "Mortgage" means any conveyance, agreement, or arrangement in which property is
116 used as security.
117 (31) "Nonresident decedent" means a decedent who was domiciled in another jurisdiction
118 at the time of his death.
119 (32) "Organization" includes a corporation, limited liability company, business trust,
120 estate, trust, partnership, joint venture, association, government or governmental subdivision or

121 agency, or any other legal or commercial entity.
122 (33) "Parent" includes any person entitled to take, or who would be entitled to take if the
123 child died without a will, as a parent under this code by intestate succession from the child whose
124 relationship is in question and excludes any person who is only a stepparent, foster parent, or
125 grandparent.
126 (34) "Payor" means a trustee, insurer, business entity, employer, government,
127 governmental agency or subdivision, or any other person authorized or obligated by law or a
128 governing instrument to make payments.
129 (35) "Person" means an individual or an organization.
130 (36) (a) "Personal representative" includes executor, administrator, successor personal
131 representative, special administrator, and persons who perform substantially the same function
132 under the law governing their status.
133 (b) "General personal representative" excludes special administrator.
134 (37) "Petition" means a written request to the court for an order after notice.
135 (38) "Proceeding" includes action at law and suit in equity.
136 (39) "Property" includes both real and personal property or any interest therein and means
137 anything that may be the subject of ownership.
138 (40) "Protected person" [is as defined in Section 75-5-401 ] means a person for whom a
139 conservator has been appointed. A "minor protected person" means a minor for whom a
140 conservator has been appointed because of minority.
141 (41) "Protective proceeding" means a proceeding described in Section 75-5-401 .
142 (42) "Registrar" refers to the official of the court designated to perform the functions of
143 registrar as provided in Section 75-1-307 .
144 (43) "Security" includes any note, stock, treasury stock, bond, debenture, evidence of
145 indebtedness, certificate of interest, or participation in an oil, gas, or mining title or lease or in
146 payments out of production under such a title or lease, collateral trust certificate, transferable share,
147 voting trust certificate, and, in general, any interest or instrument commonly known as a security,
148 or any certificate of interest or participation, any temporary or interim certificate, receipt, or
149 certificate of deposit for, or any warrant or right to subscribe to or purchase, any of the foregoing.
150 (44) "Settlement," in reference to a decedent's estate, includes the full process of
151 administration, distribution, and closing.

152 (45) "Special administrator" means a personal representative as described in Sections
153 75-3-614 through 75-3-618 .
154 (46) "State" means a state of the United States, the District of Columbia, the
155 Commonwealth of Puerto Rico, or any territory or insular possession subject to the jurisdiction of
156 the United States.
157 (47) "Successor personal representative" means a personal representative, other than a
158 special administrator, who is appointed to succeed a previously appointed personal representative.
159 (48) "Successors" means persons, other than creditors, who are entitled to property of a
160 decedent under the decedent's will or this title.
161 (49) "Supervised administration" refers to the proceedings described in Title 75, Chapter
162 3, Part 5, Supervised Administration.
163 (50) "Survive," except for purposes of Part 3 of Article VI, Uniform TOD Security
164 Registration Act, means that an individual has neither predeceased an event, including the death
165 of another individual, nor is considered to have predeceased an event under Section 75-2-104 or
166 75-2-702 . The term includes its derivatives, such as "survives," "survived," "survivor," and
167 "surviving."
168 (51) "Testacy proceeding" means a proceeding to establish a will or determine intestacy.
169 (52) "Testator" includes an individual of either sex.
170 (53) "Trust" includes any express trust, private or charitable, with additions thereto,
171 wherever and however created. The term also includes a trust created or determined by judgment
172 or decree under which the trust is to be administered in the manner of an express trust. The term
173 excludes other constructive trusts, and it excludes resulting trusts, conservatorships, personal
174 representatives, trust accounts as defined in Title 75, Chapter 6, Nonprobate Transfers, custodial
175 arrangements pursuant to any Uniform Transfers To Minors Act, business trusts providing for
176 certificates to be issued to beneficiaries, common trust funds, voting trusts, preneed funeral plans
177 under Title 58, Chapter 58, Preneed Funeral Arrangement Act, security arrangements, liquidation
178 trusts, and trusts for the primary purpose of paying debts, dividends, interest, salaries, wages,
179 profits, pensions, or employee benefits of any kind, and any arrangement under which a person is
180 nominee or escrowee for another.
181 (54) "Trustee" includes an original, additional, or successor trustee, whether or not
182 appointed or confirmed by the court.

183 (55) "Ward" means [an individual described in Section 75-5-303 ] a person for whom a
184 guardian has been appointed. A "minor ward" is a minor for whom a guardian has been appointed
185 solely because of minority.
186 (56) "Will" includes codicil and any testamentary instrument which merely appoints an
187 executor, revokes or revises another will, nominates a guardian, or expressly excludes or limits the
188 right of an individual or class to succeed to property of the decedent passing by intestate
189 succession.
190 Section 2. Section 75-2-202 is amended to read:
191 75-2-202. Elective share -- Supplemental elective share amount -- Effect of election
192 on statutory benefits -- Nondomicilary.
193 (1) The surviving spouse of a decedent who dies domiciled in Utah has a right of election,
194 under the limitations and conditions stated in this part, to take an elective-share amount equal to
195 the value of 1/3 of the augmented estate.
196 (2) If the sum of the amounts described in [Section 75-2-207 ,] Subsection 75-2-209 (1)[(a)],
197 and that part of the elective-share amount payable from the decedent's probate estate and
198 nonprobate transfers to others under Subsections 75-2-209 (2) and (3) is less than $25,000, the
199 surviving spouse is entitled to a supplemental elective-share amount equal to $25,000, minus the
200 sum of the amounts described in those sections. The supplemental elective-share amount is
201 payable from the decedent's probate estate and from recipients of the decedent's nonprobate
202 transfers to others in the order of priority set forth in Subsections 75-2-209 (2) and (3).
203 (3) If the right of election is exercised by or on behalf of the surviving spouse, the
204 surviving spouse's homestead allowance, exempt property, and family allowance, if any, are
205 charged against, and are not in addition to, the elective-share and supplemental elective-share
206 amounts. [Any nonprobate transfer, as provided in Section 75-2-206 , received by the surviving
207 spouse is also chargeable against the elective-share and supplemental elective-share amounts.]
208 (4) The right, if any, of the surviving spouse of a decedent who dies domiciled outside
209 Utah to take an elective share in property in Utah is governed by the law of the decedent's domicile
210 at death.
211 Section 3. Section 75-2-204 is amended to read:
212 75-2-204. Decedent's net probate estate.
213 [The] Unless excluded under Section 75-2-208 , the value of the augmented estate includes

214 the value of the decedent's probate estate, reduced by funeral and administration expenses,
215 homestead allowance, family allowances, exempt property, and enforceable claims.
216 Section 4. Section 75-2-208 is amended to read:
217 75-2-208. Exclusions, valuation, and overlapping application.
218 (1) The value of any separate property of the decedent or the decedent's surviving spouse
219 is excluded from the augmented estate even if it otherwise would be included in the augmented
220 estate under Sections 75-2-204 , 75-2-205 , 75-2-206 , and 75-2-207 . Property is separate property
221 if:
222 (a) owned at the date of the most recent marriage of the decedent and the decedent's
223 surviving spouse;
224 (b) acquired by gift or disposition at death from a person other than the decedent or the
225 decedent's surviving spouse;
226 (c) acquired in exchange for or with the proceeds of other separate property;
227 (d) designated as separate property by written waiver under Section 75-2-213 ; or
228 (e) acquired as a recovery for personal injury but only to the extent attributable to expenses
229 paid or otherwise satisfied from separate property.
230 (2) Income attributable to investment, rental, licensing or other use of separate property
231 during the most recent marriage of the decedent and the decedent's surviving spouse is separate
232 property.
233 (3) Appreciation in the value of separate property during the most recent marriage of the
234 decedent and the decedent's surviving spouse is separate property.
235 (4) Except as provided in this Subsection (4), any increase in the value of separate property
236 due to improvements to or the reduction in debt owed against separate property during the most
237 recent marriage of the decedent and the decedent's surviving spouse is separate property. An
238 amount equal to any payment for improvements to or the reduction in debt owed against separate
239 property of the decedent made during the most recent marriage of the decedent and the decedent's
240 surviving spouse from the joint or commingled funds of the decedent and the decedent's surviving
241 spouse, or from the separate property of the surviving spouse, shall not be separate property to the
242 extent of the amount actually paid for the improvements or the amount actually paid for the
243 reduction in debt, including principal, interest, and other payments under the note, owed against
244 separate property. The amount that is determined not to be separate property may not exceed the

245 value of the separate property.
246 (5) All property of the decedent or the decedent's surviving spouse, whether or not
247 commingled, is rebuttably presumed not to be separate property. [Separate property that has been
248 commingled with other property that is not separate property shall be rebuttably presumed not to
249 be separate property unless it can be shown what percentage or amount of the commingled
250 property came from separate property, in which case the amount or percentage of commingled
251 property will remain separate property. Property held by the decedent and the decedent's surviving
252 spouse as joint tenants at the date of the decedent's death shall not be separate property.]
253 (6) The value of any property is excluded from the decedent's nonprobate transfers to
254 others:
255 (a) to the extent the decedent received adequate and full consideration in money or
256 money's worth for a transfer of the property; or
257 (b) if the property was transferred with the written joinder of, or if the transfer was
258 consented to in writing by, the surviving spouse.
259 (7) The value of property:
260 (a) included in the augmented estate under Section 75-2-205 , 75-2-206 , or 75-2-207 is
261 reduced in each category by enforceable claims against the included property; and
262 (b) includes the commuted value of any present or future interest and the commuted value
263 of amounts payable under any trust, life insurance settlement option, annuity contract, public or
264 private pension, disability compensation, death benefit or retirement plan, or any similar
265 arrangement, exclusive of the federal Social Security system.
266 (8) In case of overlapping application to the same property of the section or subsections
267 of Section 75-2-205 , 75-2-206 , or 75-2-207 , the property is included in the augmented estate under
268 the provision yielding the greatest value, and under only one overlapping provision if they all yield
269 the same value.
270 Section 5. Section 75-2-209 is amended to read:
271 75-2-209. Sources from which elective share payable -- Elective share amount --
272 Unsatisfied balance.
273 (1) In a proceeding for an elective share, the following are applied first to satisfy the
274 elective-share amount and to reduce or eliminate any contributions due from the decedent's probate
275 estate and recipients of the decedent's nonprobate transfers to others:

276 (a) amounts included in the augmented estate under Section 75-2-204 [which] that pass
277 or have passed to the surviving spouse by testate or intestate succession and amounts included in
278 the augmented estate under Section 75-2-206 ;
279 (b) amounts included in the augmented estate under Section 75-2-207 ; [and]
280 (c) the [aggregate] value at the decedent's death of the decedent's separate property, as
281 defined in Section 75-2-208 , that passes or has passed from the decedent to the decedent's
282 surviving spouse by reason of the decedent's death, whether by testate or intestate succession or
283 by nonprobate transfer [under Section 75-2-206 that are not included in the augmented estate] at
284 the decedent's death; and
285 (d) the surviving spouse's homestead allowance, exempt property, and family allowance,
286 if any.
287 (2) If, after the application of Subsection (1), the elective-share amount is not fully
288 satisfied or the surviving spouse is entitled to a supplemental elective-share amount, amounts
289 included in the decedent's probate estate and in the decedent's nonprobate transfers to others, other
290 than amounts included under Subsection 75-2-205 (3)(a) or (c), are applied first to satisfy the
291 unsatisfied balance of the elective-share amount or the supplemental elective-share amount. The
292 decedent's probate estate and that portion of the decedent's nonprobate transfers to others are so
293 applied that liability for the unsatisfied balance of the elective-share amount or for the
294 supplemental elective-share amount is equitably apportioned among the recipients of the decedent's
295 probate estate and of that portion of the decedent's nonprobate transfers to others in proportion to
296 the value of their interests therein.
297 (3) If, after the application of Subsections (1) and (2), the elective-share or supplemental
298 elective-share amount is not fully satisfied, the remaining portion of the decedent's nonprobate
299 transfers to others is so applied that liability for the unsatisfied balance of the elective-share or
300 supplemental elective-share amount is equitably apportioned among the recipients of the remaining
301 portion of the decedent's nonprobate transfers to others in proportion to the value of their interests
302 therein.
303 Section 6. Section 75-5-401 is amended to read:
304 75-5-401. Protective proceedings.
305 (1) Upon petition and after notice and hearing in accordance with the provisions of this
306 part, the court may appoint a conservator or make other protective order for cause as follows:

307 (a) Appointment of a conservator or other protective order may be made in relation to the
308 estate and affairs of a minor if the court determines that a minor owns money or property that
309 requires management or protection which cannot otherwise be provided, has or may have business
310 affairs which may be jeopardized or prevented by minority, or that funds are needed for the minor's
311 support and education and protection is necessary or desirable to obtain or provide funds.
312 (b) The provisions of Subsection (1) (a) may be applied to a person beyond minority up
313 to age 21 under special circumstances as determined by the court.
314 (2) Appointment of a conservator or other protective order may be made in relation to the
315 estate and affairs of a person if the court determines that the person:
316 (a) is unable to manage the person's property and affairs effectively for reasons such as
317 mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic
318 intoxication, confinement, detention by a foreign power, or disappearance; and
319 (b) has property which will be wasted or dissipated unless proper management is provided
320 or that funds are needed for the support, care, and welfare of the person or those entitled to be
321 supported by the person and protection is necessary or desirable to obtain or provide funds.




Legislative Review Note
as of 2-4-99 10:31 AM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel