Probate is the process by which legal title of property is transferred from the decedent’s estate to the beneficiaries. If there is a Will, the probate court will determine if the Will is valid. In the absence of a Will, the probate court appoints a person to receive all claims against the estate, pay creditors and then distribute all remaining property in accordance with the provincial laws. This process of obtaining court certification is known as probate. The cost of probate is set by provincial law. It is generally a percentage of the value of the estate. There ways you can legally avoid or minimize the cost of probate. To know how you can ensure that your estate passes on to the ones you really want and without having to probate your will, speak to an experienced Sandy Utah probate lawyer.
Probate fees are payable when an asset transfers as a consequence of death. So, if you transfer the asset when you are alive, it will not be subject to probate. If you die without an estate, there is nothing left to probate. So, gift the asset when you are alive. You can also create a trust for the benefit of a beneficiary – your family members, close friends, etc and you can settle the asset (that you want to give that family member or close friend) to that trust. Once assets have been placed in a trust, those assets no longer form part of the estate, and therefore will not be subject to probate.
Assets that are registered in joint tenancy with rights of survivorship do not form part of the estate of the deceased. They become the property of the joint owner.
Life insurance polices can also avoid probate fees. The investment is registered with the insurance company and upon the individual’s death assets pass directly to the beneficiary and do not form part of the estate. Other investments RRSPs or RRIFs allow owners to choose a beneficiary who will be entitled to any proceeds upon death. Having a named beneficiary allows these assets to pass directly to that individual without being included in the estate.
Reduce Probate Expenses
Another way to reduce probate expenses is by having multiple wills. You can have separate wills for your different assets: assets that must be probated, assets that don’t require probate, and assets that can or must be probated in another jurisdiction for a lower cost. This approach requires the services of an expert lawyer. Under this method, a primary will is used to deal with probate-able assets. A secondary will is drawn up to deal with assets that do not require probate. This method requires you to draw up two wills limited to specific property, with an executor named in each. Upon the death, the executor submits only the primary will for probate, and the probate tax calculation would be based on the assets governed by that specific will.
Hiring the services of an experienced Sandy Utah probate can help you avoid probate. Probate is a time consuming and costly process. A probate can be avoided if there is a valid will. You will require an estate planning attorney to draft a valid will. A valid will be of great benefit to the heirs after the death of the testator. If there is no valid will, the assets of the deceased will be distributed according to the state law. This can result in some of your preferred heirs receive less than what you would have wanted them to receive.
Your beneficiaries will receive the legal title of your estate only after when has been through probate. Even when there is a will, the validity of the will must be determined by the probate court. If a person dies intestate, the probate court will decide how the person’s assets are to be distributed to his or her heirs. In the absence of a will, the state law will determine the share of each heir. When an estate goes through probate, the beneficiaries must pay probate fees. You can legally reduce or completely avoid the cost of probate. Probate can also take a long time. Consult with an experienced Sandy Utah probate lawyer.
When the ownership of an asset is transferred after the death of the owner, then probate fees must be paid. When a living person transfers an asset, it is not subject to probate and as such no probate fees will be payable. You can legally avoid probate by distributing your assets to your preferred heirs before you die. When there is no estate left on your death, there will be nothing to probate. Seek the advice of an experienced Sandy Utah probate lawyer on how to avoid probate by distributing your assets while you are alive.
You can also exclude a property from your estate by registering the property in joint tenancy with rights of survivorship. Your relative or relatives to whom you want to transfer the property after your death should be made joint tenants. Up on your death the property will the property of these relatives without having to go through probate. Life insurance policies that allow the beneficiary to receive the benefits directly also need not go through probate.
Probate A Will
You can also avoid probate by having multiple wills. You should hire the services of an experienced Sandy Utah probate lawyer to help you draft multiple wills. In your primary will you should include assets that require probate while your secondary wills should include assets that need not go through probate. In such cases only the primary will is subject to probate.
A number of estate planning devices are available to the person and family with which to accomplish the various lifetime and postmortem estate-planning objectives. For purposes of analysis, we may divide these planning devices into two principal categories, based upon the time they become effective in transferring property interests:
1. Testamentary devices—Instruments intended to take effect only upon the person’s death, which transfer no property interests to others until then.
2. Inter vivos devices—Instruments intended to take effect immediately, which transfer property interests at that time and/or on the person’s death.
Technically, there is really only one truly testamentary device for the purpose of estate planning: the last will and testament. Simply defined, a will is a person’s postmortem declaration of intention. Although traditionally regarded as expressing a plan for property disposition, wills may express wishes with respect to other matters as well, such as the nominations of an executor and a guardian for minor children. However simple or extensive the plan, the purpose of the will is to place an obligation on the executor to carry out the legitimate intentions of the testator under the supervision of the courts. Although the creation of a will requires no court authority, it does require a specified degree of mental capacity, which in some states may be less than that required for the execution of a contract and other similar matters of personal property management. Whatever the level of capacity required, how ever, it is absolutely clear that, in order for the will to be valid, the testator must possess that degree of capacity at the time the will is executed.
Conferral Of Estate
An individual might wish, for example, to confer an entire estate on a surviving spouse to the exclusion of the children. In smaller estates, this result might be based on a desire to provide primary support for the survivor and on the belief that the survivor will care for the children. Moreover, an individual may wish to give extraordinary recognition to one child’s special needs and services, to the diminution of the other children’s shares. Similarly, an individual may wish to remember a close or distant relative. Notwithstanding these personal motives and objectives, Utah law frequently confers less than the entire estate on a surviving spouse, regardless of the size and composition of the estate, the number and ages of the children, and other factors usually relevant to such a consideration. Moreover, Utah statutes uniformly treat all children alike, without regard to their special needs. And personally preferred individuals, however dear and meritorious, may not fall within the technical definition of the class preferred by the intestacy law in any given situation and accordingly would not receive any part of the estate. Although these laws provide certainty of result, they are generally inflexible in their application to individual circumstances. Accordingly, if a person’s preferred pattern of distribution does not conform with the particular jurisdiction’s intestacy statute, some form of estate planning is absolutely essential to ensure the accomplishment of that person’s objectives, in the form of either a will or some other property transmittal device.
In contrast to the limited number of testamentary forms— one active (the
last will for example ) and one passive (the intestacy statute)— there are a number of inter vivos forms available to effect the persons’ estate-planning objectives. Several of these have already been considered in some detail as asset management devices, inasmuch as they are effective forms for that purpose as well.
The main goals of estate planning are to ensure that the person’s wishes are carried out, to minimize problems for the survivors, and to reduce estate taxes. The legal documents used to accomplish these goals include a durable power of attorney, a will, and, for some patients, a trust. A durable power of attorney is a financial document that allows a named person, the attorney-in-fact, to handle the patient’s assets in certain specified ways. This document is called durable because it remains in effect even in the event that the patient becomes incapacitated. In many cases, the durable power of attorney for health care is included in a durable general power of attorney. As seriously ill persons find that they require a legal document that addresses financial concerns, a durable general power of attorney typically fulfills this purpose.
A will is a legal document that specifies how a person’s property is to be passed to survivors at the time of his or her death. A will stipulates one or more beneficiaries who will benefit from the estate. It also names an executor whose duties include paying residual bills and guaranteeing that the intentions of the deceased are carried out.
Probate refers to the legal process whereby the property is inventoried, expenses are paid, and remaining assets are passed on to the appropriate beneficiaries. The local probate court oversees this process, the administration of which commonly requires a year to complete.
It should be noted that the probate process is sometimes unnecessary in the settlement of an estate. Some types of property, referred to as nonprobate property, may legally pass to the designated persons without the authorization of probate court. Such nonprobate properties include annuities, proceeds from life insurance, pensions, and jointly owned assets like bank accounts or houses.
Your Sandy Utah probate lawyer will first need to know something about your family and to have an estimate of the assets that comprise your estate and, if you are married, the estate of your spouse. The next question is likely to be “what would you like to do with your estate?” A typical response is “Use everything to take care of my spouse (or other relatives), and when we are both gone, pass it on to the children (or other relatives.)” At this point, your adviser must decide whether to recommend a simple will in which everything goes to your primary beneficiary and to other designated heirs if the primary beneficiary dies before you do. This arrangement has the merits of simplicity but raises two problems:
a. The property given outright on your death to the first beneficiary will be subject to a second round of death taxes when that beneficiary dies.
b. If the primary beneficiary is old or disabled, auxiliary management may be needed for the property.
Both these problems can be solved if the property is left in trust for the primary beneficiary — usually on terms that provide for payment of income to the beneficiary and give the trustee power to use principal as necessary for the beneficiary’s support, medical expenses, etc. In a properly drawn trust, the property will not be subject to tax when the beneficiary dies, and the trustee can be given a full range of powers to use income and principal for direct payment to the beneficiary or for payment to the beneficiary’s creditors (medical expenses, bills, etc.) if the beneficiary is unable to manage alone. A related consideration arises when married persons wish to make each other the primary beneficiaries of their estates. This brings into play the “marital deduction” discussed above, and in larger estates this can become a vital element in minimizing taxes.
Obtaining the marital deduction is not difficult. A simple will that gives everything to your spouse will do so while keeping taxes on your death to a minimum. The problem is that your spouse then has everything that you have, plus everything that he or she may own separately, and will leave a larger estate subject to even heavier taxes before it passes on to the children or next beneficiaries. When the sums of money are larger, significant tax savings can be achieved by giving your spouse only as much as needed to eliminate the federal estate tax in your estate, while leaving the rest in a trust that will provide benefits for your spouse, but will not be taxed as part of his or her estate.
Sandy Utah Probate Attorney Free Consultation
When you need legal help with your last will and testament, living trust, power of attorney, or estate, please call Ascent Law for your free consultation at (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506