Chief Sponsor: Kelly B. Miles

Senate Sponsor: Ann Millner


8     General Description:
9          This bill modifies the Utah Uniform Probate Code.
10     Highlighted Provisions:
11          This bill:
12          ▸     excludes specific claims in intestacy cases under certain circumstances;
13          ▸     addresses when a person refuses to accept the authority of a guardian;
14          ▸     provides for a court to rescind or modify an order or issue a temporary order;
15          ▸     addresses when a conservator may use the assets of the estate;
16          ▸     modifies the provision regarding creation of power of appointment; and
17          ▸     makes technical changes.
18     Money Appropriated in this Bill:
19          None
20     Other Special Clauses:
21          None
22     Utah Code Sections Affected:
23     AMENDS:
24          75-3-107, as last amended by Laws of Utah 2014, Chapter 142
25          75-5-312, as last amended by Laws of Utah 2017, Chapter 403
26          75-5-312.5, as enacted by Laws of Utah 2016, Chapter 293
27          75-5-424, as last amended by Laws of Utah 2017, Chapters 181 and 403

28          75-10-201, as enacted by Laws of Utah 2017, Chapter 125

30     Be it enacted by the Legislature of the state of Utah:
31          Section 1. Section 75-3-107 is amended to read:
32          75-3-107. Probate and testacy proceedings -- Ultimate time limit -- Presumption
33     and order of intestacy.
34          (1) [No] An informal probate proceeding or formal testacy proceeding, other than a
35     proceeding to probate a will previously probated at the testator's domicile, may not be
36     commenced more than three years after the decedent's death, except:
37          (a) [If] if a previous proceeding was dismissed because of doubt about the fact of the
38     decedent's death, appropriate probate or testacy proceedings may be maintained at any time
39     thereafter upon a finding that the decedent's death occurred prior to the initiation of the
40     previous proceeding and the applicant or petitioner has not delayed unduly in initiating the
41     subsequent proceeding[.];
42          (b) [Appropriate] appropriate probate or testacy proceedings may be maintained in
43     relation to the estate of an absent, disappeared, or missing person for whose estate a
44     conservator has been appointed, at any time within three years after the conservator becomes
45     able to establish the death of the protected person[.]; or
46          (c) [A] a proceeding to contest an informally probated will and to secure appointment
47     of the person with legal priority for appointment in the event the contest is successful, may be
48     commenced within the later of 12 months from the informal probate or three years from the
49     decedent's death.
50          (2) The limitations provided in Subsection (1) do not apply to proceedings to construe
51     probated wills or determine heirs of an intestate. In cases under Subsection (1)(a) or (b), the
52     date on which a testacy proceeding is properly commenced shall be [deemed] considered to be
53     the date of the decedent's death for purposes of other limitations provisions of this title which
54     relate to the date of death.
55          (3) If no will is probated within three years from death, the presumption of intestacy is
56     final and the court shall upon filing a proper petition enter an order to that effect.
57          (4) Notwithstanding the time restriction in Subsection (1), the court has continuing
58     jurisdiction to:

59          (a) determine what property was owned by the decedent at the time of death; and
60          (b) appoint, formally or informally, a personal representative or special administrator to
61     administer the decedent's estate[.], except the following may not be presented against the
62     estate:
63          (i) a homestead allowance;
64          (ii) exempt property;
65          (iii) a family allowance;
66          (iv) a support allowance;
67          (v) an elective share of the surviving spouse; and
68          (vi) a claim other than expenses of administration.
69          Section 2. Section 75-5-312 is amended to read:
70          75-5-312. General powers and duties of guardian -- Penalties.
71          (1) A guardian of an incapacitated person has only the powers, rights, and duties
72     respecting the ward granted in the order of appointment under Section 75-5-304.
73          (2) Except as provided in Subsection (4), a guardian has the same powers, rights, and
74     duties respecting the ward that a parent has respecting the parent's unemancipated minor child.
75          (3) In particular, and without qualifying [the foregoing] Subsections (1) and (2), a
76     guardian has the following powers and duties, except as modified by order of the court:
77          (a) To the extent that it is consistent with the terms of any order by a court of
78     competent jurisdiction relating to detention or commitment of the ward, the guardian is entitled
79     to custody of the person of the ward and may establish the ward's place of abode within or
80     without this state.
81          (b) If entitled to custody of the ward the guardian shall provide for the care, comfort,
82     and maintenance of the ward and, whenever appropriate, arrange for the ward's training and
83     education. Without regard to custodial rights of the ward's person, the guardian shall take
84     reasonable care of the ward's clothing, furniture, vehicles, and other personal effects and
85     commence protective proceedings if other property of the ward is in need of protection.
86          (c) A guardian may give any consents or approvals that may be necessary to enable the
87     ward to receive medical or other professional care, counsel, treatment, or service.
88          (d) A guardian may not unreasonably restrict visitation with the ward by family,
89     relatives, or friends.

90          (e) If no conservator for the estate of the ward has been appointed, the guardian may:
91          (i) institute proceedings to compel any person under a duty to support the ward or to
92     pay sums for the welfare of the ward to perform that duty;
93          (ii) compel the production of the ward's estate documents, including the ward's will,
94     trust, power of attorney, and any advance health care directive; and
95          (iii) receive money and tangible property deliverable to the ward and apply the money
96     and property for support, care, and education of the ward[;]:
97          (A) but the guardian may not use funds from the ward's estate for room and board
98     which the guardian, the guardian's spouse, parent, or child have furnished the ward unless a
99     charge for the service is approved by order of the court made upon notice to at least one adult
100     relative in the nearest degree of kinship to the ward in which there is an adult[. The]; and
101          (B) the guardian shall exercise care to conserve any excess for the ward's needs.
102          (f) (i) A guardian is required to report the condition of the ward and of the estate which
103     has been subject to the guardian's possession or control, as required by the court or court rule.
104          (ii) A guardian is required to immediately notify all interested persons if the guardian
105     reasonably believes that the ward's death is likely to occur within the next 30 days, based on:
106          (A) the guardian's own observations; or
107          (B) information from the ward's physician or other medical care providers.
108          (iii) A guardian is required to immediately notify all interested persons of the ward's
109     death.
110          (iv) Unless emergency conditions exist, a guardian is required to file with the court a
111     notice of the guardian's intent to move the ward and to serve the notice on all interested persons
112     at least 10 days before the move. The guardian shall take reasonable steps to notify all
113     interested persons and to file the notice with the court as soon as practicable following the
114     earlier of the move or the date when the guardian's intention to move the ward is made known
115     to the ward, the ward's care giver, or any other third party.
116          (v) (A) If no conservator for the estate of the ward has been appointed, the guardian
117     shall, for all estates in excess of $50,000, excluding the residence owned by the ward, send a
118     report with a full accounting to the court on an annual basis.
119          (B) For estates less than $50,000, excluding the residence owned by the ward, the
120     guardian shall fill out an informal annual report and mail the report to the court.

121          (C) A report under Subsection (3)(f)(v)(A) or (B) shall include a statement of assets at
122     the beginning and end of the reporting year, income received during the year, disbursements for
123     the support of the ward, and other expenses incurred by the estate. The guardian shall also
124     report the physical conditions of the ward, the place of residence, and a list of others living in
125     the same household. The court may require additional information.
126          (D) The forms for both the informal report for estates under $50,000, excluding the
127     residence owned by the ward, and the full accounting report for larger estates shall be approved
128     by the Judicial Council.
129          (E) An annual report shall be examined and approved by the court.
130          (F) If the ward's income is limited to a federal or state program requiring an annual
131     accounting report, a copy of that report may be submitted to the court in lieu of the required
132     annual report.
133          (vi) Corporate fiduciaries are not required to petition the court, but shall submit their
134     internal report annually to the court. The report shall be examined and approved by the court.
135          (vii) The guardian shall also render an annual accounting of the status of the person to
136     the court which shall be included in the petition or the informal annual report as required under
137     this Subsection (3)(f). If a fee is paid for an accounting of an estate, [no fee shall] a fee may not
138     be charged for an accounting of the status of a person.
139          (viii) If a guardian:
140          (A) makes a substantial misstatement on filings of annual reports;
141          (B) is guilty of gross impropriety in handling the property of the ward; or
142          (C) willfully fails to file the report required by this [subsection] Subsection (3)(f), after
143     receiving written notice from the court of the failure to file and after a grace period of two
144     months has elapsed, the court may impose a penalty in an amount not to exceed $5,000.
145          (ix) The court may also order restitution of funds misappropriated from the estate of a
146     ward. The penalty shall be paid by the guardian and may not be paid by the estate.
147          [(ix)] (x) The provisions and penalties in this Subsection (3)(f) governing annual
148     reports do not apply if the guardian or a coguardian is the parent of the ward.
149          [(x)] (xi) For the purposes of Subsections (3)(f)(i), (ii), (iii), and (iv), "interested
150     persons" means those persons required to receive notice in guardianship proceedings as set
151     forth in Section 75-5-309.

152          (g) If a conservator has been appointed:
153          (i) all of the ward's estate received by the guardian in excess of those funds expended
154     to meet current expenses for support, care, and education of the ward shall be paid to the
155     conservator for management as provided in this code; and
156          (ii) the guardian shall account to the conservator for funds expended.
157          (4) (a) A court may, in the order of appointment, place specific limitations on the
158     guardian's power.
159          (b) A guardian may not prohibit or place restrictions on association with a relative or
160     qualified acquaintance of an adult ward, unless permitted by court order under Section
161     75-5-312.5.
162          (c) A guardian is not liable to a third person for acts of the guardian's ward solely by
163     reason of the relationship described in Subsection (2).
164          (5) Any guardian of one for whom a conservator also has been appointed shall control
165     the custody and care of the ward and is entitled to receive reasonable sums for services and for
166     room and board furnished to the ward as agreed upon between the guardian and the
167     conservator, if the amounts agreed upon are reasonable under the circumstances. The guardian
168     may request the conservator to expend the ward's estate by payment to third persons or
169     institutions for the ward's care and maintenance.
170          (6) A person who refuses to accept the authority of a guardian [with authority over
171     financial decisions to transact business with the assets] of the protected person after receiving a
172     certified copy of letters of guardianship is liable for costs, expenses, attorney fees, and damages
173     if the court determines that the person did not act in good faith in refusing to accept the
174     authority of the guardian.
175          Section 3. Section 75-5-312.5 is amended to read:
176          75-5-312.5. Association between an adult ward and a relative of the adult ward.
177          (1) As used in this section:
178          (a) "Associate" or "association" means:
179          (i) visitation of an adult ward by a relative or qualified acquaintance; or
180          (ii) communication between an adult ward and a relative or qualified acquaintance in
181     any form, including by telephone, mail, or electronic communication.
182          (b) "Qualified acquaintance" means an individual, other than a relative of the adult

183     ward, who:
184          (i) has established a significant, mutual friendship with the adult ward; or
185          (ii) is clergy in the adult ward's religion or religious congregation.
186          (c) "Relative" means an adult ward's spouse, parent, step-parent, child, step-child,
187     sibling, step-sibling, half-sibling, grandparent, grandchild, uncle, aunt, nephew, niece, or first
188     cousin.
189          (2) (a) Except as otherwise provided by court order, a guardian may not restrict or
190     prohibit the right of an adult ward to associate with a relative or qualified acquaintance of the
191     adult ward.
192          (b) If an adult ward is unable to express consent to visitation by a relative or a qualified
193     acquaintance of the adult ward, the consent of the adult ward is presumed based on evidence of
194     a prior relationship between the adult ward and the relative or qualified acquaintance of the
195     adult ward.
196          (c) A guardian may not permit a relative or qualified acquaintance of an adult ward to
197     associate with the adult ward:
198          (i) if a court order prohibits the association;
199          (ii) in a manner prohibited by court order; or
200          (iii) if the adult ward expresses a desire to not associate with the relative or qualified
201     acquaintance.
202          (3) A guardian may, as part of the initial guardianship proceeding, petition the court to
203     issue an order:
204          (a) prohibiting or placing conditions on association between an adult ward and a
205     relative or qualified acquaintance of the adult ward; or
206          (b) granting the guardian the authority to prohibit or place conditions on association
207     between an adult ward and a relative or qualified acquaintance of the adult ward.
208          (4) A guardian may, at any time after the initial guardianship proceeding[,]:
209          (a) petition the court to issue an order described in Subsection (3) or to rescind or
210     modify an order described in Subsection (3); or
211          (b) petition, subject to notice, the court on an emergency basis to issue a temporary
212     order until further order of the court described in Subsection (3) or to rescind or modify an
213     order described in Subsection (3).

214          (5) An adult ward, a relative of an adult ward, or a qualified acquaintance of an adult
215     ward may, at any time after the initial guardianship proceeding, petition the court to rescind or
216     modify an order described in Subsection (3).
217          (6) If a guardian violates Subsection (2), the adult ward, a relative of the adult ward, or
218     a qualified acquaintance of the adult ward may do one or more of the following, as applicable:
219          (a) petition the court to issue an order to show cause why the guardian should not be
220     held in contempt of court;
221          (b) seek an injunction to enforce compliance by the guardian with the law and any
222     applicable court order; or
223          (c) petition the court to have the guardian removed as guardian of the adult ward.
224          (7) For a hearing on a petition filed under this section, a court:
225          (a) may appoint a court visitor to meet with the adult ward to determine the wishes of
226     the adult ward regarding association;
227          (b) shall give notice and an opportunity to be heard to the guardian, the adult ward, and
228     the relative or qualified acquaintance;
229          (c) shall preserve the right of the adult ward to be present at the hearing; and
230          (d) may order supervised visitation by the relative or qualified acquaintance before the
231     hearing.
232          (8) A court may not enter an order prohibiting or placing restrictions on association
233     between an adult ward and a relative or qualified acquaintance, unless the court finds by a
234     preponderance of the evidence that:
235          (a) the adult ward desires the prohibition or restriction;
236          (b) if the adult ward had the capacity to make a knowing and intelligent decision
237     regarding the association, the adult ward would prohibit the association or impose the
238     restriction; or
239          (c) the prohibition or restriction is the least restrictive means necessary to protect the
240     health or welfare of the adult ward.
241          (9) In making the determination described in Subsection (8), the court may consider
242     any relevant evidence, including:
243          (a) the wishes of the adult ward, expressed during or before the guardianship;
244          (b) the history of the relationship between the adult ward and the relative or qualified

245     acquaintance;
246          (c) any history of criminal activity, abuse, neglect, or violence by the relative or
247     qualified acquaintance; or
248          (d) whether a protective order was ever issued against the relative or qualified
249     acquaintance with respect to the adult ward.
250          (10) Except as provided in Subsection (11), the guardian shall have the burden of proof
251     when:
252          (a) seeking an order prohibiting association or placing restrictions on association with a
253     relative or qualified acquaintance of the adult ward;
254          (b) modifying an order to place additional prohibitions or restrictions on association
255     with a relative or qualified acquaintance of the adult ward; or
256          (c) opposing an action described in Subsection (6)(a) or (b).
257          (11) The relative or qualified acquaintance shall have the burden of proof if the relative
258     or qualified acquaintance is seeking to modify an order previously entered by a court under this
259     section.
260          (12) (a) If, in a proceeding under this section, the court finds that the petition was filed
261     frivolously or in bad faith, the court shall award attorney fees to a party opposing the petition.
262          (b) If, in a proceeding under this section, the court finds that the guardian is in
263     contempt of court or has acted frivolously or in bad faith in prohibiting or restricting
264     association, the court:
265          (i) may award attorney fees to the prevailing party; and
266          (ii) may impose a sanction, not to exceed $1,000, against the guardian.
267          (c) A court shall prohibit attorney fees awarded under this section from being paid by
268     the adult ward or the adult ward's estate.
269          Section 4. Section 75-5-424 is amended to read:
270          75-5-424. Powers of conservator in administration.
271          (1) A conservator has all of the powers conferred in this chapter and any additional
272     powers conferred by law on trustees in this state. In addition, a conservator of the estate of an
273     unmarried minor as to whom no one has parental rights, has the duties and powers of a
274     guardian of a minor described in Section 75-5-209 until the minor attains majority or marries,
275     but the parental rights so conferred on a conservator do not preclude appointment of a guardian

276     as provided by Part 2, Guardians of Minors.
277          (2) (a) A conservator has the power to compel the production of the protected person's
278     estate documents, including the protected person's will, trust, power of attorney, and any
279     advance health care directives.
280          (b) If a guardian is also appointed for the ward, the conservator shall share with the
281     guardian the estate documents the conservator receives.
282          (3) A conservator has power without court authorization or confirmation to invest and
283     reinvest funds of the estate as would a trustee.
284          (4) A conservator, acting reasonably in efforts to accomplish the purpose for which the
285     conservator was appointed, may use the funds of the estate and act without court authorization
286     or confirmation, to:
287          (a) collect, hold, and retain assets of the estate, including land in another state, until, in
288     the conservator's judgment, disposition of the assets should be made, and the assets may be
289     retained even though they include an asset in which the conservator is personally interested;
290          (b) receive additions to the estate;
291          (c) continue or participate in the operation of any business or other enterprise;
292          (d) acquire an undivided interest in an estate asset in which the conservator, in any
293     fiduciary capacity, holds an undivided interest;
294          (e) invest and reinvest estate assets in accordance with Subsection (3);
295          (f) deposit estate funds in a bank including a bank operated by the conservator;
296          (g) acquire or dispose of an estate asset, including land in another state, for cash or on
297     credit, at public or private sale; and to manage, develop, improve, exchange, partition, change
298     the character of, or abandon an estate asset;
299          (h) make ordinary or extraordinary repairs or alterations in buildings or other
300     structures, demolish any improvements, and raze existing or erect new party walls or buildings;
301          (i) (A) subdivide, develop, or dedicate land to public use;
302          (B) make or obtain the vacation of plats and adjust boundaries;
303          (C) adjust differences in valuation on exchange or partition by giving or receiving
304     considerations; and
305          (D) dedicate easements to public use without consideration;
306          (j) enter for any purpose into a lease as lessor or lessee with or without option to

307     purchase or renew for a term within or extending beyond the term of the conservatorship;
308          (k) enter into a lease or arrangement for exploration and removal of minerals or other
309     natural resources or enter into a pooling or unitization agreement;
310          (l) grant an option involving disposition of an estate asset or take an option for the
311     acquisition of any asset;
312          (m) vote a security, in person or by general or limited proxy;
313          (n) pay calls, assessments, and any other sums chargeable or accruing against or on
314     account of securities;
315          (o) (i) sell or exercise stock subscription or conversion rights; and
316          (ii) consent, directly or through a committee or other agent, to the reorganization,
317     consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise;
318          (p) hold a security in the name of a nominee or in other form without disclosure of the
319     conservatorship so that title to the security may pass by delivery, but the conservator is liable
320     for any act of the nominee in connection with the stock so held;
321          (q) insure the assets of the estate against damage or loss and the conservator against
322     liability with respect to third persons;
323          (r) (i) borrow money to be repaid from estate assets or otherwise; and
324          (ii) advance money for the protection of the estate or the protected person, and for all
325     expenses, losses, and liabilities sustained in the administration of the estate or because of the
326     holding or ownership of any estate assets, and the conservator has a lien on the estate as against
327     the protected person for advances so made;
328          (s) (i) pay or contest any claim;
329          (ii) settle a claim by or against the estate or the protected person by compromise,
330     arbitration, or otherwise; and
331          (iii) release, in whole or in part, any claim belonging to the estate to the extent that the
332     claim is uncollectible;
333          (t) pay taxes, assessments, compensation of the conservator, and other expenses
334     incurred in the collection, care, administration, and protection of the estate;
335          (u) allocate items of income or expense to either estate income or principal, as
336     provided by law, including creation of reserves out of income for depreciation, obsolescence,
337     or amortization, or for depletion in mineral or timber properties;

338          (v) pay any sum distributable to a protected person or dependent without liability to the
339     conservator, by paying the sum to the distributee or by paying the sum for the use of the
340     distributee either to the distributee's guardian, or if none, to a relative or other person with
341     custody of the person;
342          (w) (i) employ persons, including attorneys, auditors, investment advisors, or agents,
343     even though they are associated with the conservator, to advise or assist in the performance of
344     administrative duties;
345          (ii) act upon a recommendation made by a person listed in Subsection (4)(w)(i) without
346     independent investigation; and
347          (iii) instead of acting personally, employ one or more agents to perform any act of
348     administration, whether or not discretionary;
349          (x) prosecute or defend actions, claims, or proceedings in any jurisdiction for the
350     protection of estate assets and of the conservator in the performance of the conservator's duties;
351          (y) act as a qualified beneficiary of any trust in which the protected person is a
352     qualified beneficiary; and
353          (z) execute and deliver the instruments that will accomplish or facilitate the exercise of
354     the powers vested in the conservator.
355          Section 5. Section 75-10-201 is amended to read:
356          75-10-201. Creation of power of appointment.
357          (1) A power of appointment is created only if:
358          (a) the instrument creating the power[: (i)] is valid under applicable law; and
359          [(ii) except as otherwise provided in Subsection (2), transfers the appointive property;
360     and]
361          (b) the terms of the instrument creating the power manifest the donor's intent to create
362     in a powerholder a power of appointment over the appointive property exercisable in favor of a
363     permissible appointee.
364          (2) [Subsection (1)(a)(ii) does not apply to the creation of a] A power of appointment
365     may be created by the exercise of a power of appointment.
366          (3) A power of appointment may not be created in a deceased individual.
367          (4) Subject to an applicable rule against perpetuities, a power of appointment may be
368     created in an unborn or unascertained powerholder.

Legislative Review Note
Office of Legislative Research and General Counsel