This document includes House Committee Amendments incorporated into the bill on Wed, Feb 8, 2017 at 11:51 AM by ryoung.
This document includes House Committee Amendments incorporated into the bill on Tue, Feb 21, 2017 at 3:30 PM by jeyring.1
7 LONG TITLE
8 General Description:
9 This bill amends probate related provisions.
10 Highlighted Provisions:
11 This bill:
12 ▸ modifies how letters upon estates jointly may be granted;
13 ▸ modifies guardian and conservator provisions, including:
14 • modifying provisions related to limited guardianships;
15 • addressing emergency guardians;
16 • modifying powers and duties of guardians;
17 • addressing reporting requirements of conservators; and
18 • providing sanctions for not honoring a conservator's
18a Ĥ→ or guardian's ←Ĥ authority; and
19 ▸ makes technical changes.
20 Money Appropriated in this Bill:
22 Other Special Clauses:
24 Utah Code Sections Affected:
26 75-3-109, as enacted by Laws of Utah 1977, Chapter 194
27 75-3-402, as last amended by Laws of Utah 2013, Chapter 364
28 75-5-304, as last amended by Laws of Utah 1988, Chapter 104
29 75-5-309, as last amended by Laws of Utah 1988, Chapter 104
30 75-5-310, as last amended by Laws of Utah 2014, Chapter 142
31 75-5-312, as last amended by Laws of Utah 2016, Chapter 293
32 75-5-418, as last amended by Laws of Utah 2012, Chapter 274
33 75-5-421, as enacted by Laws of Utah 1975, Chapter 150
34 75-5-424, as last amended by Laws of Utah 2014, Chapter 142
35 75-5-425, as last amended by Laws of Utah 2012, Chapter 274
37 Be it enacted by the Legislature of the state of Utah:
38 Section 1. Section 75-3-109 is amended to read:
39 75-3-109. Letters upon several estates jointly.
40 (1) Upon application or petition by any person interested in two or more estates, the
41 registrar may, in an informal proceeding without a hearing, or the court may, in a formal
42 proceeding after notice and hearing, grant letters upon these estates jointly if administration has
43 not commenced with respect to [
44 (a) [
45 decedent; or
46 (b) [
47 tenants-in-common and if the persons entitled under the wills of these decedents or under the
48 law of intestate succession to receive the estates of these decedents are the same.
49 (2) If letters are granted upon two or more estates jointly under this section, these
50 estates shall be administered the same as if they were but one estate except that claims may be
51 enforced only against the estate to which they relate.
52 Section 2. Section 75-3-402 is amended to read:
53 75-3-402. Formal testacy or appointment proceedings -- Petition -- Contents.
54 (1) Petitions for formal probate of a will, or for adjudication of intestacy with or
55 without request for appointment of a personal representative, shall be directed to the court,
56 request a judicial order after notice and hearing, and contain further statements as indicated in
57 this section. A petition for formal probate of a will:
58 (a) requests an order as to the testacy of the decedent in relation to a particular
59 instrument which may or may not have been informally probated and determining the heirs;
60 (b) contains the statements required for informal applications as stated in Subsection
61 75-3-301(2) and the statements required by Subsections 75-3-301(3)(b) and (c), and, if the
62 petition requests appointment of a personal representative, the statements required by
63 Subsection 75-3-301(4); and
64 (c) states whether the original of the last will of the decedent is in the possession of the
65 court, accompanies the petition, or was presented to the court for electronic storage or
66 electronic filing and is [
67 (2) If the original will is not in the possession of the court, has not been presented to
68 the court for electronic storage or electronic filing, does not accompany the petition, and no
69 authenticated copy of a will probated in another jurisdiction accompanies the petition, the
70 petition also shall state the contents of the will and indicate that it is lost, destroyed, or
71 otherwise unavailable.
72 (3) A petition for adjudication of intestacy and appointment of an administrator in
73 intestacy shall request a judicial finding and order that the decedent left no will and,
74 determining the heirs, contain the statements required by Subsections 75-3-301(2) and
75 75-3-301(5) and indicate whether supervised administration is sought. A petition may request
76 an order determining intestacy and heirs without requesting the appointment of an
77 administrator, in which case, the statements required by Subsection 75-3-301(5)(b) may be
79 Section 3. Section 75-5-304 is amended to read:
80 75-5-304. Findings -- Limited guardianship preferred -- Order of appointment.
81 (1) The court may appoint a guardian as requested if it is satisfied that the person for
82 whom a guardian is sought is incapacitated and that the appointment is necessary or desirable
83 as a means of providing continuing care and supervision of the incapacitated person.
84 (2) (a) The court shall prefer a limited guardianship and may only grant a full
85 guardianship if no other alternative exists. If the court does not grant a limited guardianship, a
86 specific finding shall be made that nothing less than a full guardianship is adequate.
87 (b) An order of appointment of a limited guardianship shall state the limitations of the
88 guardianship. Letters of guardianship for a limited guardianship shall state the limitations of
89 the guardianship unless the court determines for good cause shown that a limitation should not
90 be listed in the letters.
91 (3) A guardian appointed by will or written instrument, under Section 75-5-301, whose
92 appointment has not been prevented or nullified under Subsection 75-5-301(4), has priority
93 over any guardian who may be appointed by the court, but the court may proceed with an
94 appointment upon a finding that the testamentary or instrumental guardian has failed to accept
95 the appointment within 30 days after notice of the guardianship proceeding. Alternatively, the
96 court may dismiss the proceeding or enter any other appropriate order.
97 Section 4. Section 75-5-309 is amended to read:
98 75-5-309. Notices in guardianship proceedings.
99 (1) In a proceeding for the appointment or removal of a guardian of an incapacitated
100 person other than the appointment of [
101 suspension of a guardian, notice of hearing shall be given to each of the following:
102 (a) the ward or the person alleged to be incapacitated and spouse, parents, and adult
103 children of the ward or person;
104 (b) any person who is serving as guardian or conservator or who has care and custody
105 of the ward or person;
106 (c) in case no other person is notified under Subsection (1)(a), at least one of the
107 closest adult relatives, if any can be found; and
108 (d) any guardian appointed by the will of the parent who died later or spouse of the
109 incapacitated person.
110 (2) The notice shall be in plain language and large type and the form shall have the
111 final approval of the Judicial Council. The notice shall indicate the time and place of the
112 hearing, the possible adverse consequences to the person receiving notice of rights, a list of
113 rights, including the person's own or a court appointed counsel, and a copy of the petition.
114 (3) Notice shall be served personally on the alleged incapacitated person and the
115 person's spouse and parents if they can be found within the state. Notice to the spouse and
116 parents, if they cannot be found within the state, and to all other persons except the alleged
117 incapacitated person shall be given as provided in Section 75-1-401. Waiver of notice by the
118 person alleged to be incapacitated is not effective unless the person attends the hearing or the
119 person's waiver of notice is confirmed in an interview with the visitor appointed pursuant to
120 Section 75-5-303.
121 Section 5. Section 75-5-310 is amended to read:
122 75-5-310. Emergency guardians.
123 (1) If an incapacitated person has no guardian and an emergency exists or if an
124 appointed guardian is not effectively performing the guardian's duties and the court further
125 finds that the welfare of the incapacitated person requires immediate action, it may, without
126 notice, appoint an emergency guardian for the person for a specified period not to exceed 30
127 days pending notice and hearing.
128 (2) [
129 guardian, the court shall[
130 hearing within 14 days pursuant to Section 75-5-303.
131 Section 6. Section 75-5-312 is amended to read:
132 75-5-312. General powers and duties of guardian -- Penalties.
133 (1) A guardian of an incapacitated person has only the powers, rights, and duties
134 respecting the ward granted in the order of appointment under Section 75-5-304.
135 (2) Except as provided in Subsection (4), a guardian has the same powers, rights, and
136 duties respecting the ward that a parent has respecting the parent's unemancipated minor child.
137 (3) In particular, and without qualifying the foregoing, a guardian has the following
138 powers and duties, except as modified by order of the court:
139 (a) To the extent that it is consistent with the terms of any order by a court of
140 competent jurisdiction relating to detention or commitment of the ward, the guardian is entitled
141 to custody of the person of the ward and may establish the ward's place of abode within or
142 without this state.
143 (b) If entitled to custody of the ward the guardian shall provide for the care, comfort,
144 and maintenance of the ward and, whenever appropriate, arrange for the ward's training and
145 education. Without regard to custodial rights of the ward's person, the guardian shall take
146 reasonable care of the ward's clothing, furniture, vehicles, and other personal effects and
147 commence protective proceedings if other property of the ward is in need of protection.
148 (c) A guardian may give any consents or approvals that may be necessary to enable the
149 ward to receive medical or other professional care, counsel, treatment, or service.
150 (d) A guardian may not unreasonably restrict visitation with the ward by family,
151 relatives, or friends.
152 (e) If no conservator for the estate of the ward has been appointed, the guardian may:
153 (i) institute proceedings to compel any person under a duty to support the ward or to
154 pay sums for the welfare of the ward to perform that duty;
155 (ii) compel the production of the ward's estate documents, including the ward's will,
156 trust, power of attorney, and any advance health care directive; and
157 (iii) receive money and tangible property deliverable to the ward and apply the money
158 and property for support, care, and education of the ward; but the guardian may not use funds
159 from the ward's estate for room and board which the guardian, the guardian's spouse, parent, or
160 child have furnished the ward unless a charge for the service is approved by order of the court
161 made upon notice to at least one adult relative in the nearest degree of kinship to the ward in
162 which there is an adult. The guardian shall exercise care to conserve any excess for the ward's
164 (f) (i) A guardian is required to report the condition of the ward and of the estate which
165 has been subject to the guardian's possession or control, as required by the court or court rule.
166 (ii) A guardian is required to immediately notify all interested persons if the guardian
167 reasonably believes that the ward's death is likely to occur within the next 30 days, based on:
168 (A) the guardian's own observations; or
169 (B) information from the ward's physician or other medical care providers.
170 (iii) A guardian is required to immediately notify all interested persons of the ward's
172 (iv) Unless emergency conditions exist, a guardian is required to file with the court a
173 notice of the guardian's intent to move the ward and to serve the notice on all interested persons
174 at least 10 days before the move. The guardian shall take reasonable steps to notify all
175 interested persons and to file the notice with the court as soon as practicable following the
176 earlier of the move or the date when the guardian's intention to move the ward is made known
177 to the ward, the ward's care giver, or any other third party.
178 (v) [
179 guardian shall, for all estates in excess of $50,000, excluding the residence owned by the ward,
180 send a report with a full accounting to the court on an annual basis.
181 (B) For estates less than $50,000, excluding the residence owned by the ward, the
182 guardian shall fill out an informal annual report and mail the report to the court.
183 (C) [
184 statement of assets at the beginning and end of the reporting year, income received during the
185 year, disbursements for the support of the ward, and other expenses incurred by the estate. The
186 guardian shall also report the physical conditions of the ward, the place of residence, and a list
187 of others living in the same household. The court may require additional information.
188 (D) The forms for both the informal report for estates under $50,000, excluding the
189 residence owned by the ward, and the full accounting report for larger estates shall be approved
190 by the Judicial Council. [
191 (E) An annual report shall be examined and approved by the court.
192 (F) If the ward's income is limited to a federal or state program requiring an annual
193 accounting report, a copy of that report may be submitted to the court in lieu of the required
194 annual report.
195 (vi) Corporate fiduciaries are not required to petition the court, but shall submit their
196 internal report annually to the court. The report shall be examined and approved by the court.
197 (vii) The guardian shall also render an annual accounting of the status of the person to
198 the court which shall be included in the petition or the informal annual report as required under
199 Subsection (3)(f). If a fee is paid for an accounting of an estate, no fee shall be charged for an
200 accounting of the status of a person.
201 (viii) If a guardian:
202 (A) makes a substantial misstatement on filings of annual reports;
203 (B) is guilty of gross impropriety in handling the property of the ward; or
204 (C) willfully fails to file the report required by this subsection, after receiving written
205 notice from the court of the failure to file and after a grace period of two months has elapsed,
206 the court may impose a penalty in an amount not to exceed $5,000. The court may also order
207 restitution of funds misappropriated from the estate of a ward. The penalty shall be paid by the
208 guardian and may not be paid by the estate.
209 (ix) [
210 reports do not apply if the guardian or a coguardian is the parent of the ward.
211 (x) For the purposes of Subsections (3)(f)(i), (ii), (iii), and (iv), "interested persons"
212 means those persons required to receive notice in guardianship proceedings as set forth in
213 Section 75-5-309.
214 (g) If a conservator has been appointed[
215 (i) all of the ward's estate received by the guardian in excess of those funds expended
216 to meet current expenses for support, care, and education of the ward shall be paid to the
217 conservator for management as provided in this code; and
218 (ii) the guardian shall account to the conservator for funds expended.
219 (4) (a) A court may, in the order of appointment, place specific limitations on the
220 guardian's power.
221 (b) A guardian may not prohibit or place restrictions on association with a relative or
222 qualified acquaintance of an adult ward, unless permitted by court order under Section
224 (c) A guardian is not liable to a third person for acts of the guardian's ward solely by
225 reason of the relationship described in Subsection (2).
226 (5) Any guardian of one for whom a conservator also has been appointed shall control
227 the custody and care of the ward and is entitled to receive reasonable sums for services and for
228 room and board furnished to the ward as agreed upon between the guardian and the
229 conservator, if the amounts agreed upon are reasonable under the circumstances. The guardian
230 may request the conservator to expend the ward's estate by payment to third persons or
231 institutions for the ward's care and maintenance.
231a Ĥ→ (6) A person who refuses to accept the authority of a guardian with authority over
231b financial decisions to transact business with the assets of the protected person after receiving a
231c certified copy of letters of guardianship is liable for costs, expenses, attorney fees, and damages
231d if the court determines that the person did not act in good faith in refusing to accept the
231e authority of the guardian. ←Ĥ
232 Section 7. Section 75-5-418 is amended to read:
233 75-5-418. Inventory and records.
234 (1) Within 90 days after appointment of a conservator, the conservator shall prepare
235 and file with the appointing court a complete inventory of the estate of the protected person
236 together with an oath or affirmation that it is complete and accurate so far as the conservator is
237 informed. The estate of the protected person does not include the assets of a trust.
238 (2) The conservator shall provide a copy of the inventory to the protected person if the
240 (a) can be located;
241 (b) has attained the age of 14 years; and
242 (c) has sufficient mental capacity to understand these matters, and to any parent or ☆
243 guardian with whom the protected person resides.
244 (3) The conservator shall keep suitable [
245 them upon the request of any interested person.
246 Section 8. Section 75-5-421 is amended to read:
247 75-5-421. Recording of conservator's letters.
248 (1) (a) Letters of conservatorship are evidence of transfer of [
249 protected person to the conservator.
250 (b) An order terminating a conservatorship is evidence of transfer of [
251 the estate from the conservator to the protected person or [
253 (c) Subject to the requirements of general statutes governing the filing or recordation of
254 documents of title to land or other property, letters of conservatorship and orders terminating
255 conservatorships may be filed or recorded to give record notice of title as between the
256 conservator and the protected person.
257 (2) A person who refuses to accept the authority of a conservator to transact business
258 with the assets of the protected person after receiving a certified copy of letters of
259 conservatorship is liable for costs, expenses, attorney fees, and damages if the court determines
260 that the person did not act in good faith in refusing to accept the authority of the conservator.
261 Section 9. Section 75-5-424 is amended to read:
262 75-5-424. Powers of conservator in administration.
263 (1) A conservator has all of the powers conferred in this chapter and any additional
264 powers conferred by law on trustees in this state. In addition, a conservator of the estate of an
265 unmarried minor as to whom no one has parental rights, has the duties and powers of a
266 guardian of a minor described in Section 75-5-209 until the minor attains majority or marries,
267 but the parental rights so conferred on a conservator do not preclude appointment of a guardian
268 as provided by Part 2, Guardians of Minors.
269 (2) (a) A conservator has the power to compel the production of the protected person's
270 estate documents, including the protected person's will, trust, power of attorney, and any
271 advance health care directives.
272 (b) If a guardian is also appointed for the ward, the conservator shall share with the
273 guardian the estate documents the conservator receives.
274 (3) A conservator has power without court authorization or confirmation to invest and
275 reinvest funds of the estate as would a trustee.
276 (4) A conservator, acting reasonably in efforts to accomplish the purpose for which the
277 conservator was appointed, may act without court authorization or confirmation, to:
278 (a) collect, hold, and retain assets of the estate, including land in another state, until, in
280 be retained even though they include an asset in which [
282 (b) receive additions to the estate;
283 (c) continue or participate in the operation of any business or other enterprise;
284 (d) acquire an undivided interest in an estate asset in which the conservator, in any
285 fiduciary capacity, holds an undivided interest;
286 (e) invest and reinvest estate assets in accordance with Subsection [
287 (f) deposit estate funds in a bank including a bank operated by the conservator;
288 (g) acquire or dispose of an estate asset, including land in another state, for cash or on
289 credit, at public or private sale; and to manage, develop, improve, exchange, partition, change
290 the character of, or abandon an estate asset;
291 (h) make ordinary or extraordinary repairs or alterations in buildings or other
292 structures, demolish any improvements, and raze existing or erect new party walls or buildings;
293 (i) subdivide, develop, or dedicate land to public use; make or obtain the vacation of
294 plats and adjust boundaries; adjust differences in valuation on exchange or partition by giving
295 or receiving considerations; and dedicate easements to public use without consideration;
296 (j) enter for any purpose into a lease as lessor or lessee with or without option to
297 purchase or renew for a term within or extending beyond the term of the conservatorship;
298 (k) enter into a lease or arrangement for exploration and removal of minerals or other
299 natural resources or enter into a pooling or unitization agreement;
300 (l) grant an option involving disposition of an estate asset or take an option for the
301 acquisition of any asset;
302 (m) vote a security, in person or by general or limited proxy;
303 (n) pay calls, assessments, and any other sums chargeable or accruing against or on
304 account of securities;
305 (o) (i) sell or exercise stock subscription or conversion rights; and
306 (ii) consent, directly or through a committee or other agent, to the reorganization,
307 consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise;
308 (p) hold a security in the name of a nominee or in other form without disclosure of the
309 conservatorship so that title to the security may pass by delivery, but the conservator is liable
310 for any act of the nominee in connection with the stock so held;
311 (q) insure the assets of the estate against damage or loss and the conservator against
312 liability with respect to third persons;
313 (r) (i) borrow money to be repaid from estate assets or otherwise; and
314 (ii) advance money for the protection of the estate or the protected person, and for all
315 expenses, losses, and liabilities sustained in the administration of the estate or because of the
316 holding or ownership of any estate assets, and the conservator has a lien on the estate as against
317 the protected person for advances so made;
318 (s) (i) pay or contest any claim;
319 (ii) settle a claim by or against the estate or the protected person by compromise,
320 arbitration, or otherwise; and
321 (iii) release, in whole or in part, any claim belonging to the estate to the extent that the
322 claim is uncollectible;
323 (t) pay taxes, assessments, compensation of the conservator, and other expenses
324 incurred in the collection, care, administration, and protection of the estate;
325 (u) allocate items of income or expense to either estate income or principal, as
326 provided by law, including creation of reserves out of income for depreciation, obsolescence,
327 or amortization, or for depletion in mineral or timber properties;
328 (v) pay any sum distributable to a protected person or dependent without liability to the
329 conservator, by paying the sum to the distributee or by paying the sum for the use of the
330 distributee either to the distributee's guardian, or if none, to a relative or other person with
331 custody of the person;
332 (w) (i) employ persons, including attorneys, auditors, investment advisors, or agents,
333 even though they are associated with the conservator, to advise or assist in the performance of
334 administrative duties;
335 (ii) act upon [
336 without independent investigation; and
337 (iii) instead of acting personally, employ one or more agents to perform any act of
338 administration, whether or not discretionary;
339 (x) prosecute or defend actions, claims, or proceedings in any jurisdiction for the
340 protection of estate assets and of the conservator in the performance of the conservator's duties;
341 (y) act as a qualified beneficiary of any trust in which the protected person is a
342 qualified beneficiary; and
343 (z) execute and deliver [
344 the exercise of the powers vested in the conservator.
345 Section 10. Section 75-5-425 is amended to read:
346 75-5-425. Distributive duties and powers of conservator.
347 (1) A conservator may expend or distribute income or principal of the estate without
348 court authorization or confirmation for the support, education, care, or benefit of the protected
349 person and [
350 (a) The conservator is to consider recommendations relating to the appropriate standard
351 of support, education, and benefit for the protected person made by a parent or guardian, if any.
353 furnishing support, education, or care to the protected person pursuant to the recommendations
354 of a parent or guardian of the protected person unless [
355 parent or guardian is deriving personal financial benefit therefrom, including relief from any
356 personal duty of support, or unless the recommendations are clearly not in the best interests of
357 the protected person.
358 (b) The conservator is to expend or distribute sums reasonably necessary for the
359 support, education, care or benefit of the protected person with due regard to:
360 (i) the size of the estate, the probable duration of the conservatorship and the likelihood
361 that the protected person, at some future time, may be fully able to manage the protected
362 person's affairs and the estate which has been conserved for the protected person;
363 (ii) the accustomed standard of living of the protected person and members of the
364 protected person's household; and
365 (iii) other funds or sources used for the support of the protected person.
366 (c) The conservator may expend funds of the estate for the support of persons legally
367 dependent on the protected person and others who are members of the protected person's
368 household who are unable to support themselves and who are in need of support.
369 (d) Funds expended under this Subsection (1) may be paid by the conservator to any
370 person, including the protected person to reimburse for expenditures which the conservator
371 might have made, or in advance for services to be rendered to the protected person when it is
372 reasonable to expect that they will be performed and where advance payments are customary or
373 reasonably necessary under the circumstances.
374 (2) If the estate is ample to provide for the purposes implicit in the distributions
375 authorized by Subsection (1), a conservator for a protected person other than a minor has power
376 to make gifts to charity and other objects as the protected person might have been expected to
377 make, in amounts which do not exceed in total for any year 20% of the income from the estate.
378 (3) When a person who is a minor and who has not been adjudged to have a disability
379 under Subsection 75-5-401(2)(a) attains the age of majority, the person's conservator, after
380 meeting all prior claims and expenses of administration, shall pay over and distribute all funds
381 and properties to the former protected person as soon as possible.
382 (4) When the conservator is satisfied that a protected person's disability[
384 administration, shall pay over and distribute all funds and properties to the former protected
385 person as soon as possible.
386 (5) If a protected person dies, the conservator:
387 (a) shall:
388 (i) deliver to the court for safekeeping any will of the deceased protected person that
389 may have come into the conservator's possession;
390 (ii) inform the [
391 the conservator has done so; and
392 (iii) retain the estate for delivery to a duly appointed personal representative of the
393 decedent or other persons entitled to it;
394 (b) may continue to pay the obligations lawfully due against the estate and to protect
395 the estate from waste, injury, or damages that might reasonably be foreseeable; and
396 (c) may apply to exercise the powers and duties of a personal representative so that the
397 conservator may proceed to administer and distribute the decedent's estate without additional or
398 further appointment, provided that at least 40 days from the death of the protected person no
399 other person has been appointed personal representative and no application or petition for
400 appointment is before the court.
401 (6) Upon application for an order granting the powers of a personal representative to a
402 conservator as provided in Subsection (5)(c) and after notice as provided in Section 75-3-310,
403 the court may order the conferral of the power upon determining that there is no objection and
404 endorse the letters of the conservator to note that the formerly protected person is deceased and
405 that the conservator has acquired all of the powers and duties of a personal representative. The
406 making and entry of an order under this section shall have the effect of an order of appointment
407 of a personal representative as provided in Section 75-3-308 and Chapter 3, Part 6, Personal
408 Representative - Appointment, Control, and Termination of Authority, Part 7, Duties and
409 Powers of Personal Representatives, Part 8, Creditors' Claims, Part 9, Special Provisions
410 Relating to Distribution, and Part 10, Closing Estates, except that the estate in the name of the
411 conservator, after administration, may be distributed to the decedent's successors without prior
412 retransfer to the conservator as personal representative.
Legislative Review Note
Office of Legislative Research and General Counsel