Estate Law Questions? Ask an Estate Lawyer.
Hi; My goal is to provide you with great service - if you have any questions during our chat, please ask! I'll do my best to ensure your satisfaction! Here is the relevant statute that sets forth the priority of appointment for PR. Since the divorce decree did not get finalized, under the wording of the statute she would unfortunately still be considered the surviving spouse. http://www.le.utah.gov/code/TITLE75/htm/75_03_020300.htm
I'm checking a few other things.
Did the will name a PR/executor, or is this an intestate estate?
Subsection (b) provides an "out" so to speak if this is intestate
(2) An objection to an appointment can be made only in formal proceedings. In case of objection the priorities stated in Subsection (1) apply except that:(b) In case of objection to appointment of a person other than one whose priority is determined by will by an heir or devisee appearing to have a substantial interest in the estate, the court may appoint a person who is acceptable to heirs and devisees whose interests in the estate appear to be worth in total more than one-half of the probable distributable value, or, in default of this accord, any suitable person.
Thank you for the statutory reference. There is no will in this case. If you could give me a case (Utah or otherwise) that relates to an estranged spouse - that favorably shows the court going away from that person - that would be great.
I have been looking for that since my last post. The problem is, since the language in the statute is clear, generally there would not be case law to interpret it. I'm still checking though.
Here is a case law from South Carolina, and unfortunately it deals with a similar situation, and a similar statute, and the court found that the estranged spouse has the legal preference. However, Utah gives the heirs an out by including in their statute the language quoted above.
Did you have any questions on the above? It appeared that you were typing for some while but nothing showed up on screen. I have been unable to find anything to support the premise that an estranged spouse cannot serve - but again, the heirs with substantial interest in the estate can object - and the judge would likely consider the estrangement in rendering a decision.
What I was typing became moot. I'd really like a case, anywhere, the explains or shows grounds for not going with an estranged spouse. But, I understand what you are saying. Can you look once more for something where the court deviated from the spouse (either because of statute or other considerations) so I have something to start with there....
Yes, I have been keeping my eye out for that during the search. I have limited the search to an estranged spouse, because that is the relevant issue.
I'll report back shortly.
I cannot find any case law to that effect unfortunately. I am using a subscription service and it is quite comprehensive.
Here is a case where the Utah court tried to do what was right ("equitable adoption") and it got reversed on appeal because the court held that the intestate succession laws were clear, so the court did not have authority to re-write them, in essence. This type of logis is the type of logic I would expect the court to use, so your best bet would be to work within the parameters of the statute.
Here is a case on statutory construction: http://law.justia.com/cases/south-dakota/supreme-court/2002/1036.html - this shows that the court won't re-write the law.
Unfortunately, all the law I am finding is in support of the estranged spouse serving: http://law.justia.com/cases/arkansas/court-of-appeals/2005/ca04-690.html
But fortunately the legislature for Utah gave the heirs an out; most other states did not provide that additional language.
Here is one, based on estoppel - but the circumstances are quite a bit different: http://law.justia.com/cases/california/caapp4th/60/436.html That may give you some ideas to work with though.
Thanks. What subscription service are you using?
Lexis - I think you need to be an attorney.
You are very welcome. Good luck on all this. And I hope everything works out for you and your siblings.