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What is Intestate Law in Utah

If a person passes on without estate planning of any kind, whether that planning is some kind of will or trust, they are said to have died intestate. Intestate law is the law that decides how assets are transferred and creditors satisfied if a person passes on without saying who gets the house, the car or the guarded family apple pie recipe. Intestacy law is a set of fall back provisions or rules that govern where the assets go, so that the state does not have to decide in each individual case what happens. Intestacy laws are like the default settings on computer program; they are there unless you intentionally alter them. Since most people die intestate, state intestacy laws govern how most people’s assets are distributed after their’ passing. Sometimes, even when a person has a valid will, if that will does not cover some portion of their property, then state intestacy laws will be used as gap-fillers or fallback measures so that all assets are covered.

Although state intestacy laws are best seen as a set of state laws that govern what happens to property left by those who did not make a will or trust, they also reflect some of the other needs a state has. First, states seem to make an attempt to ask what the normal person in the deceased place would want done with their assets. This is an important question because the answers given will reflect what state legislators think a “normal” person is and would want. It is easy for the legislature to overlook non-traditional relationships, such as non-marital co-inhabitants, lesbian and gay life partners and children born out of wedlock or even stepchildren. This can bring about tremendous animosity among the people you care most about; so the best plan is to get a will or trust to protect those you love if nothing else.

However, your wishes are not the only goal that states keep in mind in drafting intestacy laws. The state may wish to maintain a system where parcels of land are owned by a single person rather than a group of people; because such groups have a tendency to sue each other over property they all have an interest in and this creates problems and expenses for the state itself. In addition, your state may have an avowed policy of attempting to promote “traditional family” relationships and use its power to craft intestacy laws to give assets to family members that the state deems more worthy. Even if you are someone who normally prefers more traditional family relationships, there is no guarantee that the relationships your state decides are traditional and your understanding of the traditional family will be the same. Finally, you are in the best position to decide who is to have your assets, because you actually know the people involved; to the state the people involved are people who occupy abstract positions in your life, like spouse, child or parent. You are the one who is in the best position to decide who among your heirs should get something (or anything at all) from your estate, because these people play a greater role in your life than merely occupying some abstract position. They are the people you have laughed with, shared meals with, raised and have had raise you, cuddled with and loved. This is by no means to suggest that what people mean to you can only be known through your will or even be known through your will at all. It is rather to suggest that you should decide who gets what asset because you know what those around you value and enjoy. You should decide what happens with your assets, because chances are you earned them and should be the one to decide how they would best be passed on.

Utah Intestacy Law will govern the distribution of property of the majority of those people who die in Utah.

Intestacy is a fancy word for dying without a will or a trust. The Utah State Legislature decided over 60 years ago what would happen to a person’s property if they did not make those decisions for themselves by making a will. A lot of people ask me what will happen when they die if they don’t have a will or a trust in place. The answer to that is different based on their family situation and how the individual assets are titled.

Basically, if someone do not talk about all the property that has a beneficiary already designated like life insurance, 401k, IRA’s, etc. and those assets that already are jointly owned i.e. a home, automobile, or land, then we have everything else that is subject to the intestacy statute. (This is somewhat misleading, as if someone dies while married and leaves descendants did not stem from the testator and the testator’s spouse at the time of his/her death, then these items are accounted for as part of the estate for the purpose of calculating each heir’s percentage.)

Here are several scenarios that demonstrate what could happen depending on the family situation.

  • If you die and leave descendants, but were not married at the time of your death, then your descendants will inherit everything.
  • If you die while married but without any descendants, then your spouse will inherit everything.
  • If you die while married and only leave descendants from you and your spouse, then your spouse will inherit everything.
  • If you die while married and also leave descendants that are not from your spouse, then the spouse will get the first $75,000 and half of the remaining estate and the descendants will receive the other half of the estate.
  • If you die and leave parents but no spouse or descendants, then your parents will inherit everything.
  • If you die leaving siblings, and no spouse, descendants, or parents, then your siblings will inherit equally from your estate.

Which Assets Pass by Intestate Succession

Only assets that would have passed through your will are affected by intestate succession laws. Usually, that includes only assets that you own alone, in your own name. Many valuable assets don’t go through your will and aren’t affected by intestate succession laws. Here are some examples:

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

These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will.

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:


If You Die With:                                                                                 Here’s What Happens:

  • children but no spouse                                                              children inherit everything
  • spouse but no descendants                                                      spouse inherits everything
  • spouse and descendants from you and that spouse spouse inherits everything
  • spouse and descendants from you and someone other than that spouse: spouse inherits the first $75,000 of your intestate property, plus 1/2 of the balance
  • descendants inherit everything else
  • parents but no spouse or descendants                                      parents inherit everything
  • siblings but no spouse, descendants, or parents                       siblings inherit everything

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.

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.
  • 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.)

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.)
  • 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.)

Qualification of Descendants

Under the Utah intestacy laws, all heirs must survive the decedent for at least 120 hours. Children born after the death of a parent may still inherit for as long as they also live for at least 120 hours. Legally-adopted children will hold the same right as biological children. Moreover, the decedent’s children who are not children of the surviving spouse also have equal rights as long as paternity was recognized by the decedent or otherwise established under Utah law.

Grandchildren may also inherit if their parent, who is set to receive a share, is not alive.

Descendants who are not allowed to inherit are:

  • Children adopted by another family
  • Foster children and stepchildren that the decedent did not legally adopt

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