Intestate Succession in Utah

If you die without a will in Utah, your assets will go to your closest relatives under state "intestate succession" laws. Here are some details about how intestate succession works in Utah.

Which Assets Pass by Intestate Succession

Only assets that pass through probate are affected by intestate succession laws. Many valuable assets don't go through probate, and therefore aren't affected by intestate succession laws. Here are some examples:

• property you've transferred to a living trust
• life insurance proceeds with a named beneficiary
• funds in an IRA, 401(k), or other retirement account with a named beneficiary
• securities held in a transfer-on-death account
• real estate for which you have a transfer on death deed
• vehicles for which you have a transfer on death registration
• payable-on-death bank accounts, or
• property you own with someone else in joint tenancy or tenancy by the entirety.

These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will. However, if you don't have a will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to intestate succession.

To learn more about these types of assets, go to the How to Avoid Probate section of Nolo.com or read about Avoiding Probate in Utah.

Who Gets What in Utah?

Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here's a quick overview:

The Spouse's Share in Utah

In Utah, if you are married and you die without a will, what your spouse gets depends on whether or not you have living descendants -- children, grandchildren, or great-grandchildren.

If you die with no descendants, or if all of your descendants are from you and your surviving spouse. Your spouse inherits all of your intestate property.

If you die with descendants who are not the descendants of your surviving spouse -- in other words, you have children or grandchildren from a previous relationship. Your spouse inherits the first $75,000 of your intestate property, plus 1/2 of the balance. Your descendants inherit everything else.

If your spouse will split your property with others, there's another rule to bear in mind: The value of any nonprobate transfers -- for example, a house that passes through joint tenancy or a transfer of any of the other kinds of property listed under "Which Assets Pass by Intestate Succession," above -- will be added to the intestate estate. The nonprobate transfer is considered an "advancement," meaning that its value will be deducted from the spouse's intestate share. If the amount of the advancement exceeds what the spouse is entitled to under intestate succession laws, the spouse will not have to pay anything back, but he or she will not inherit anything more.

Example: Barrett is married to Jed and has a 12-year-old daughter from a previous marriage. Barrett and Jed own a house worth $275,000 in joint tenancy, and Barrett owns $300,000 worth of additional, separate property that would have passed under a will if she had made one. When Barrett dies, Jed owns the house outright; it doesn't go through probate. However, the value of the house is added to Barrett's intestate estate, giving it a total value of $575,000. Jed's share of the intestate estate is $75,000 plus $250,000 (half of the balance), for a total of $325,000. The value of the house is deducted from the total as an advancement, so Jed actually inherits $50,000. Barrett's daughter inherits the rest of Barrett's intestate property.

Children's Shares in Utah

If you die without a will in Utah, your children will receive an "intestate share" of your property. The size of each child's share depends on how many children you have, whether or not you are married and whether your spouse is also your children's parent. (See the table above.)

For children to inherit from you under the laws of intestacy, the state of Utah must consider them your children, legally. For many families, this is not a confusing issue. But it's not always clear. Here are some things to keep in mind.

• Adopted children. Children you legally adopted will receive an intestate share, just as your biological children do. (Utah Code § 75-2-114.)
• Foster children and stepchildren. Foster children and stepchildren you never legally adopted will not automatically receive a share.
• Children placed for adoption. Children you placed for adoption and who were legally adopted by another family will not receive a share. However, if your biological children were adopted by your spouse, that won't affect their intestate inheritance. (Utah Code § 75-2-114.)
• Posthumous children. Children conceived by you but not born before your death will receive a share if they survive at least 120 hours after birth. (Utah Code § 75-2-104.)
• Children born outside of marriage. If you were not married to your children's mother when she gave birth to them, they will receive a share of your estate if you acknowledged your paternity or if your paternity is otherwise proved under Utah law. (Utah Code § 75-2-114.)
• Children born during your marriage. Any child born to your wife during your marriage is assumed to be your child and will receive a share of your estate.
• Grandchildren. A grandchild will receive a share only if that grandchild's parent (your son or daughter) is not alive to receive his or her share. (Utah Code § 75-2-106.)

This can be a tricky area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney. If you want to read the laws themselves, you'll find a link to the Utah Code at the end of this article.

Will the State Get Your Property?

If you die without a will and don't have any family, your property will "escheat" into the state's coffers. However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won't go to the state if you leave a spouse, children, siblings, parents, grandparents, aunts or uncles, great uncles or aunts, nieces or nephews, cousins of any degree, or the descendants of a spouse who dies before you do. (See Utah Code § 75-2-103.)

Other Utah Intestate Succession Rules

Here are a few other things to know about Utah's intestacy laws.

• Survivorship period. To inherit under Utah's intestate succession statutes, a person must outlive you by 120 hours. So, if you and your brother are in a car accident and he dies a few hours after you do, his estate would not receive any of your property. (Utah Code § 75-2-104.)
• Half-relatives. "Half" relatives inherit as if they were "whole." That is, your sister with whom you share a father, but not a mother, has the same right to your property as she would if you had both parents in common. (Utah Code § 75-2-107.)
• Posthumous relatives. Relatives conceived before -- but born after -- you die inherit as if they had been born while you were alive, as long as they survive at least 120 hours after birth. (Utah Code § 75-2-104.)
• Immigration status. Relatives entitled to an intestate share of your property will inherit whether or not they are citizens or legally in the United States. (Utah Code § 75-2-110.)
• Advancements. Utah considers nonprobate transfers as advancements on a relative's share. So, if your spouse receives life insurance proceeds or funds from a payable on death account, these amounts are included when calculating your spouse's share. Additionally, if you make a gift during your lifetime to your relative and put in writing that this should be an advancement at the time of making the gift or your relative states this in writing, the value of the property is subtracted from your relative's share. (Utah Code § § 75-2-109 and 75-2-.205.)