This article explains exactly why you need an estate attorney. You really need to prepare, even if you just have a will. Don’t wait. Don’t think your “verbal agreement” will work – it won’t.
What Happens if I Don’t Have a Will?
Dying intestate, or without a will, or with no estate planning is very common in Utah. If you die without a will, your property will go through probate and is then distributed according to Utah’s intestacy laws.
Intestacy laws govern intestate property. They go into effect unless there is a valid will to testify to the deceased’s wishes or an established estate plan. In intestate inheritance, a spouse is first in line, then children, then their children, and so on. When there are no heirs in the direct bloodline, the heirs are the parents, then siblings, then nieces and nephews, and so on.
Here are some common events that may happen if you die intestate:
Your immediate next of kin, whoever they are, will likely inherit your property first: lock, stock, and barrel. If you die intestate, everything goes to your next of kin. Your next of kin are the people who have the closest relation to you. If you’re married, then that’s your spouse. If you’re not married, your closest blood relations or equivalent, will inherit your property.
Utah Intestacy Law
That son- or daughter-in-law you don’t like will get your property before that niece or nephew you do like. Marital property owned by your children is governed by the laws of the states they live in, not you. If they live in a communal property state, an inheritance is separate property so long as it is not commingled. While the laws are different in every state, property acquired by gift or inheritance during marriage by either spouse is separate property, but it is very easy to commingle and then become part of the community and subject to a 50/50 division.
Your heirs could be hit with inheritance taxes (that could have been avoided). The relatives who inherit from you may be subject to a large inheritance tax (both on the federal and state level), depending on the size of the estate and the state where the assets in question are held. While this won’t wipe out their inheritance completely, proper estate planning could have made this a non-issue. For example, a Salt Lake City estate lawyer could have helped you create a trust that would have minimized your loved ones’ exposure to taxes.
A little bit of money up for grabs has a very cooling effect on interfamilial relationships. In a perfect world, family members would all get along, never be jealous, and always do right by each other. This isn’t a perfect world. Intestacy laws don’t take into account the relationships the deceased had with anyone or what the deceased orally promised to someone. Even if widowed Uncle Bob told you he wanted you to have his ’65 Thunderbird, without a will, the car is going to his son…who doesn’t even have a driver’s license.
If you wish to dispute an intestacy inheritance, contact a Salt Lake City estate planning lawyer for assistance. They can counsel you on your rights and what course of action you can take, if any, to prove a valid claim to the estate.
An estate planning attorney is a type of lawyer who through years of mentoring, continuing legal education and experience, understands how to advise clients on getting their affairs in order to prepare for the possibility of mental disability and eventual death.
Responsibilities of an Estate Planning Attorney
• Estate planning doesn’t begin and end with a last will and testament. An attorney specializing in this field will also draft living trusts, develop a plan to mitigate or avoid estate taxes, and work to ensure that your life’s savings and assets are safe from your beneficiaries’ creditors after your death.
• He can prepare power of attorney and health care directives, arranging for someone to take care of your affairs in the event you should ever become mentally incapacitated.
• He can help you avoid guardianship or conservatorship issues if you need someone else to look after your affairs.
Qualities of an Estate Planning Attorney
• A general practitioner may not have the experience and specialized knowledge to assist you with your unique family and financial situations. Look for someone who devotes his practice to this area of the law.
• You should feel very comfortable sharing intimate details of your life and your concerns with him so your estate plan doesn’t fall short of your expectations and needs.
• Your estate planning attorney should be well versed in and up to date with the laws of your state. Otherwise, your estate plan could ultimately be deemed invalid by the court.
What You Should Expect to Pay for Your Estate Plan
Be prepared to pay somewhat higher legal fees to have your estate plan created, maintained, and updated by someone who specializes in this area of practice. You’re paying for the attorney’s expertise accumulated over years of working with a variety of different clients and taking a multitude of continuing legal education classes. As the old saying goes, “You get what you pay for.” Your estate might stand to lose far more money in the long run than the cost of paying a qualified attorney now. If estate taxes come due that could have been avoided, or if a contentious probate process drags out after your death, incurring even more court and legal fees, your loved ones may wish that you had simply spent the money to plan ahead instead. Then, of course, there’s peace of mind.
Reasons to Hire an Estate Planning Attorney
When considering if you need to hire an estate planning lawyer, consider this estate planning is serious business. One wrong word or one missing signature can change the entire intent of a will or trust. Aside from this, the reasons listed below should be enough to convince you to go out and find and hire a qualified estate planning attorney to draft your estate planning documents.
• Estate Attorney Are Necessary Since State Laws Rule Estate Plans: State laws are very specific about what can and can’t be in a will, trust, or medical or financial power of attorney; who can and can’t serve as a personal representative, trustee, health care surrogate or attorney in fact; who can and can’t be a witness to a will, trust, or medical or financial power of attorney; and what formalities must be observed when signing a will, trust, or medical or financial power of attorney. For example, in Utah, a personal representative must either be related to you by blood or marriage or, if not, then a resident of the state. This non-resident, non-relatives simply can’t serve, and in fact, won’t be allowed to serve, in Utah. Working with a qualified estate planning attorney will help you to avoid this kind of simple and yet costly mistake.
• Buyer Must Beware: The old Latin saying, “Caveat Emptor,” or “Buyer Beware,” certainly applies to estate planning. If you think that you’ll be saving a few dollars by using forms found on the internet or in a do-it-yourself book to prepare your estate planning documents, then your family will be in for a rude awakening when they learn that part or all of your will, trust, or medical or financial power of attorney isn’t legally valid or won’t work as you had anticipated. Thousands of dollars will then be spent by your loved ones working with a qualified estate planning attorney after the fact to fix your mistakes.
• Estate Attorneys Can Help Sort out Complex Family or Financial Situations: Take a look at your life and your assets to see if you fit into one or more of the following categories:
You’re in a second (or later) marriage
You own one or more businesses
You own real estate in more than one state
You have a disabled family member
You have minor children
You have problem children
You don’t have any children
You want to leave some or all of your estate to charity
You have substantial assets in 401(k)s and/or IRAs
You were recently divorced
You recently lost a spouse or other family member
You have a taxable estate for federal and/or state estate tax purposes
If one or more of these situations apply to you, then you’ll need the counseling and advice of an experienced estate planning attorney to create your estate planning documents. Otherwise, it may be a probate lawyer and your state’s department of revenue and/or the IRS that will receive the largest chunk of your estate.
Advantages of Estate Planning
Taking care of your family has always been the number one priority in your life, and that isn’t going to change. The best way to make sure they are taken care of after you pass is to establish an estate plan while you are still of sound mind. Here are the advantages of creating an estate plan:
• Provide for your immediate family: The estate plan will provide enough money for your surviving spouse to continue to care for the family. If both you and your spouse pass, an estate plan will name appointed guardians to care for your children.
• Ensure property goes to the right beneficiaries: Your estate plan will outline exactly where your assets are to go in the event of your death. This leaves no questions to be resolved by the courts or cause for family discord.
• Minimize the expenses and taxes: When you take care to create an estate plan, you should be able to keep the cost of transferring any property to your named beneficiaries.
• Ease the burdens of your family: It can be difficult to plan the funeral of a loved one when grieving. When working on your estate plan, you can outline your wishes for funeral arrangements and even set aside funds for them. This takes some of the burden off your family during this difficult time.
• Support a favorite cause: If you are passionate about a local cause or charitable organization, an estate plan can allow you to support them after your passing.
• Plan for any kind of incapacity: Life is unpredictable. If you should ever become mentally or physically incapacitated, an estate plan will outline your wishes regarding life and who will make medical decisions on your behalf.
• Reduce taxes that take place on your estate: By crafting an estate plan, you should be able to minimize the amount of taxes collected on your estate, which results in your beneficiaries keeping more of the money you set aside for them.
• Establish trustees over your estate: You’ll need someone to serve as the executor of your estate to make sure everything is handled properly. Your estate plan will name this person, which will save money and simplify the administration process.
• Provide for those who many need help: Do you have a child who has a disability? Or perhaps you have grandchildren who will be attending college in the future. Through your estate plan, you can set up a special trust to provide funds to support them.
• Ensure a business continues with a succession plan: If you own your own business, you’ll want to establish some kind of plan to keep it going after you pass. An estate plan will name your successor and outline what happens to your interest in the business.
As you can see, there is a lot that goes into estate planning, and none of these areas are ones you want to leave up in the air. By working with professional estate planning attorneys, you can make sure you have thought of everything. Without a will, your property may not go to who you want. Much of it can be tied up in probate for years, which means your family won’t get the assets they want and potentially need until it’s all settled. You can’t make assumptions that everything is going to go the way you want. Legal documentation is the only way to ensure your wishes are met.
Disadvantages of Estate Planning
• Loss of control: Once an asset is in the irrevocable trust, you no longer have direct control over it. However, in the case of a husband and wife, it is possible to create separate trusts for each, thereby collectively maintaining control. There are many pitfalls with this technique, such as observance of the Reciprocal Trust Doctrine, so this strategy should only be employed with the assistance of a skilled estate planning attorney.
• Fairly Rigid Terms: Irrevocable trusts are not very flexible. Once the terms are established, they can be difficult to change.
• The Three-Year Rule: If you include life insurance in an irrevocable trust and pass away within three years, the proceeds return to your estate and become taxable.
• The Five-Year Rule: If you put assets in an irrevocable trust and need Medicaid within a five-year period, you may have to repay all prior transfers to the trust by covering the costs of a nursing home privately. Only after you have repaid all gifted assets will you be eligible for Medicaid.
Because they have such strong advantages and disadvantages, the suitability of an irrevocable trust depends on a person’s individual circumstances. An experienced estate planner can help you decide if such an arrangement is right for you, or if you would be better off setting up a revocable trust instead.
The Estate Planning Process
As you go through life, you’re likely to accumulate some amount of wealth, assets and even just family treasures. What will happen to all those things if you die or become incapacitated? That’s where estate planning comes in. An estate plan allows you to legally specify your wishes and how you want them carried out. A well-crafted estate plan can help avoid disputes that may arise and can keep details about your family’s financial affairs private. When you’re ready to work with a qualified attorney and financial planner to write your estate plan, here are some of the key steps you’ll go through:
• Create an inventory of what you own and what you owe: Compile a comprehensive list of your assets and debts, including account numbers and contact information, as well as names and contact information for your important advisers. Keep the summary in a secure, central location along with original copies of important documents and provide a copy of the summary for the executor of your will. This list could be a piece of paper or also a digital file kept in a secure location.
• Develop a contingency plan: An estate plan allows you to control what would happen to your property and assets if you or your spouse passed away today. It also puts a documented plan in place so that if you became incapacitated, your family could carry on your affairs without having to go through court. This includes a strategy for providing income if you were to become disabled and covering potential expenses for care giving that may be needed at some point.
• Provide for children and dependents: A primary goal for many estate plans is to protect and provide for loved ones and their future needs. Your estate plan should include provisions for any children, including naming a guardian for children under age 18 and providing for those from a previous marriage if you remarry, your assets may not automatically pass to them. It also would specifically address the care and income of children or relatives with special needs that must be planned carefully to avoid jeopardizing eligibility for government benefits.
• Protect your assets: A key component of estate planning involves protecting your assets for heirs and your charitable legacy by minimizing expenses, and covering estate taxes while still meeting your goals. If necessary, your estate plan would include specific strategies for transferring or disposing of unique assets like a family-owned business, real estate or investment property, or stock in a closely held business. Many people use permanent life insurance and trusts to protect assets while ensuring future goals can be met.
• Document your wishes: If you want your assets distributed in a certain way to meet financial or personal goals, you need to have legal documentation to ensure those wishes are followed if you die or become incapacitated. This includes designating beneficiaries for your life insurance policies, retirement accounts and other assets that are in line with your goals. It also means ensuring that titles of material assets, such as automobiles and property, are named properly. Work with an attorney to be sure you have an updated will disposing of your assets, a living will reflecting your end-of-life wishes, as well as powers of attorney for health-care and financial matters.
• Appoint fiduciaries: To execute your estate plan, you must designate someone to act on your behalf if you are unable to do so as executor of your will, trustee for your assets, legal guardian for your dependents or personal representative or power of attorney if you became incapacitated. You need to be sure your fiduciaries are aware of and agree to their appointments, and that they know where to find your original estate planning documents. Fiduciaries can be family members, personal friends or hired professionals such as bankers, attorneys or corporate trustees. Whether you are just starting out or have accumulated wealth over a lifetime, an up-to-date estate plan helps you minimize the impact of unexpected events on you and your family by preserving, protecting and managing your assets. A financial advisor can help you create a financial security plan to meet your goals, and provide tools and resources to build an estate plan that makes an impact well into the future.
Free Consultation with an Estate Attorney
If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506