Make a Will

Make a Will

A will is a legal document that allows you, among other things, to designate how and to whom your property is distributed when you pass away. A will also allows you to name a guardian to care for your minor children, if you become unable to do so. A will is a part of estate planning. If you’ve thought about creating a will, then you’ve probably wondered about the types of instructions that you can include, about how a will becomes valid, and about the forms of property that can be distributed. This section provides resources related to making a will, including an overview of the process, steps to help you begin planning for a will, a sample will, and an explanation of common errors to avoid.

Choosing an Executor

One of the most important decisions to make when planning your will is choosing a competent and trustworthy executor. This person is entrusted with carrying out your estate instructions, and executors typically manage the estate’s day-to-day affairs and make sure that estate bills are paid. As you decide on an executor, keep in mind that this person should be someone that your family members and heirs can work with.

Assets and Other Property

People tend to associate wills with the distribution of a person’s assets and other property at death. This is certainly an important component of a will, although there’s more to it. As you begin to plan your will, remember that some forms of property cannot be included. For example, you cannot distribute money that’s held in a joint account, and generally, life insurance benefits cannot be included in a will (these payments automatically go to the policy’s beneficiary).

Guardian for Minor Children

Another important benefit of having a will is the ability to name a legal guardian to care for your children, should you become unable to do so. Although this is an issue that many people choose to avoid thinking about, by naming a trusted guardian for your children, you’re helping to ensure that they will have a bright future, even if the worst case scenario occurs.

Valid Wills

State laws vary, so it’s best to speak with an attorney if you have specific questions about your state’s procedures and requirements for wills. In general, you must be of “sound mind” when you created your will, and you must have voluntarily signed it, meaning that no one coerced or tricked you into doing so. At least one person is usually required to serve as a witness when you sign your will, and if your will violates a law — such as a state heirship law that requires you to name your children as heirs — portions of your will can be disregarded, or the entire will considered invalid.

Call Us For Help

If your estate is relatively simple, you may be able to draft your own will. However, if you have questions, or if your estate is complex, you should speak with an estate planning lawyer. He or she can answer your questions and help you to create a suitable will that’s clear in stating your instructions. This section provides a link for finding an experienced estate planning lawyer in your area.

Free Consultation with a Utah Will Lawyer

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.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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Is a Living Trust Necessary?

Is a Living Trust Necessary

Living trusts are a great way to leave your loved ones property without having to go through the expensive hassle of probate. Probate refers to the process of a special court distributing one’s property to heirs after death. This can be a very lengthy and expensive process, especially with larger estates. There are a number of ways to avoid probate, including pay-on-death bank accounts, holding joint tenancy with your partner, life insurance policies, gifting assets before death, and naming beneficiaries on your retirement accounts. All of these are limited to certain types of property. A living trust has no such limitations. Living trusts allow you to avoid probate, work within the broad planning flexibility a will offers, and gift pretty much all of the property of your estate to trusts.

However, a living trust still may not be necessary in your case, depending on your age, size of your estate, and marital status. As wonderful and beneficial as they are, living trusts do have drawbacks. Setting up a living trust takes longer to establish, involves more routine upkeep and maintenance, and is harder to alter, compared to a last will and testament. It is best to use a lawyer when setting up a living trust, but this can cost more than $1,000. Even after setting up a living trust, you still should create a last will and testament, as a back-up. The benefits of a living trust can still outweigh the drawbacks, however, if setting up a living trust is right for your situation.

Consider the following factors and decide if you should set up a living trust.

Your Age May Be a Reason Not to Create a Trust

Because of the cost and energy of maintaining it, setting up a living trust may not be right for you if you are under the age of 55 and relatively healthy. A living trust serves you no benefit during your lifetime. A young, healthy person will probably not have to worry about the costs of probate for years to come. Until then, creating a will that is easier to create and maintain will suffice in transferring your property should something happen to you unexpectedly. Furthermore, recent techniques in avoiding probate are becoming more and more accepted. As you get older, these techniques will more than likely become even more common, mooting the need for you to worry about living trusts.

Do You Have a Small Estate?

The bigger your estate, the more assets you have at risk of losing in probate. Therefore, the wealthier you are, the more you can potentially save by avoiding probate. The types of assets also make a difference. If you own something, like a business that would be harmed if tied up in probate proceedings, going forward with creating a living trust might be sensible. Even if you are young and healthy, it would be smart to avoid risking your executor having to report on your business to a judge for a long length of time.

What is your Marital status?

Married couples who plan on leaving their property to each other have less of an interest in setting up a living trust, especially if you own your large assets jointly. Probate is not necessary for those types of assets. For property that is not owned jointly, most probate procedures are pretty good at speeding up the process for surviving spouses, which also makes it cheaper.

Not Sure If You Should Set Up a Living Trust? Call an Estate Lawyer

There are numerous reasons you might want to set up a living trust. Talk to an experienced trust attorney to find out if a living trust is right for your particular situation.

Free Consultation with a Utah Estate Lawyer

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.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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Tax Incentives for a Charitable Remainder Trust

Tax Incentives for a Charitable Remainder Trust

When you feel that you’re ready to make a substantial gift to a charity, you may want to consider a charitable trust, which is a special type of trust. In addition to providing a benefit to your favorite charity, it also allows you to donate generously while giving you and your heirs tax benefits. I can tell you as a Probate Lawyer, that if you don’t plan now, you could end up in probate later.

However, if you don’t think that the time is right for you to make such a large donation, then it probably isn’t time for you to consider a charitable trust, either.

Charitable trusts are irrevocable. When you consider starting such a trust, you need to keep this in mind. Once you start the trust and it comes into operation, you cannot take back what you have given.

How a Charitable Trust Works

A charitable remainder trust is the most common type of charitable trust. To set up a charitable remainder trust, you must first set up a trust and transfer to that trust all the property that you want to donate to charity. The charity that you choose must be approved by the Internal Revenue Service, which generally means that the charity must be exempt from taxes.

The charity will serve as the trustee of the charitable remainder trust and will be charged with the duty of investing, protecting and managing the trust funds. The charity will pay you, or someone you have named, a portion of the income that the trust funds accumulates. These payments will last for a set number of years, or for the remainder of your life, depending upon how you drew the documents up. The trust will end at the time of your death and the property that you donated will go to the charity.

Three Tax Advantages for a Charitable Trust

In addition to assisting your charity of choice, a charitable remainder trust also gives you three primary tax benefits.

First, after you have set up and donated to a charitable trust, you are allowed to take an income tax deduction and spread it over five years, for the value of your gift to charity. However, you do not get to deduct dollar for dollar the amount that you initially gave. Instead, the IRS calculates your total deduction as the amount you originally gave minus what you can expect to receive as a return through interest payments. For example, if you gave $200,000 but are expecting to get back $100,000 in interest over the course of your life, your total deduction would have to be $100,000.

Second, because the property that you gave to the trust will go to the charity outright upon your death, the property will not be included in your estate for the purposes of determining your estate tax.

Third, and last, a charitable trust allows you to turn property that isn’t producing income into cash without paying a tax on any profits gained. For example, if Lee held 5000 shares of stock that had appreciated in value from $10/share to $100/share in the years that he held it, he could not sell off the stock without paying a capital gains tax on it. However, if Lee donates the stock to a charitable trust, the trust can sell the stock and not pay a tax on the sale. Lee’s charity can sell the $500,000 worth of stock, invest the money in a mutual fund, and pay Lee the interest from this fund for the rest of his life, all without capital gains tax. If Lee had decided to sell the $500,000 worth of shares by himself, he would have had to pay a capital gains tax on the proceeds.

Two Types of Income from a Charitable Trust

When you first set up a charitable trust, you will have a choice between two different ways of receiving an income from the fund.

Annuity Payments

First, you can opt for a fixed annuity. Under this option, you elect to receive a fixed dollar amount from the trust each year. Even if the trust has a bad year and ends up losing money, you will still receive the same amount of money you did in the years before. Once you set up how much you want the trust to pay you yearly, you cannot go back and change it.

There are a few considerations to take into account when determining how much to set annuity payments at. First, if you set it too low, you will never receive the full benefit of setting up a charitable trust, although your income tax deduction will be greater. Second, if you set the annuity too high, you may end up depleting the principal of the trust, thus leaving the charity with nothing at your death. Also, with annuities that are too high, your income tax deduction is lessened. Lastly, a charity is less likely to agree to be the trustee of a trust where annuity payments are too high because it may end up with nothing at the termination of the trust, having had to pay the entire principal in annuity payments.

Percentage Payments

Another, more common, option for payments is to set your annual payment as a percentage of the current value of the trust fund. No matter how much the trust made or lost in a year, you will still receive the same percentage share each year. As an example, Tony’s trust documents indicate that he will receive 5% of the value of the trust each year. So, at the end of every year, the trust will be re-appraised to find its current value and will pay 5% of that value to Tony.

This payment option is better suited to handling changing market conditions such as inflation. If the value of the dollar increases, your annual payments will reflect this change by also increasing. However, the Internal Revenue Service has ruled that a trust beneficiary must receive at least 5% of the value of the trust each year.

Here is an example that will hopefully clarify all of this information:

Suppose Rex is trying to figure out what to do with a bunch of stock he bought 10 years ago for $200,000. The stock is currently worth $4 million, but Rex sees little income from the stock as the dividends are small. One option for Rex would be to sell the stock off and invest the money in some sort of fund that would pay a larger income. However, if Rex decided to sell the stock, he would owe $570,000 in capital gains tax.

Another option Rex has is to set up a charitable trust with his favorite museum. He would donate the stock to the trust which would be able to sell the stock for a $3.8 million profit because of its tax exempt status. In addition, Rex would be able to claim an income tax deduction, spread over a period of five years, for his charitable donation.

The charity would then be in charge of investing and managing the $3.8 million. In addition, the trust document that Rex drew up requires the trust to pay Rex 7% of the value of the trust annually for the remainder of Rex’s life. During the first year the trust is in operation, Rex would receive $266,000. This amount will most likely change depending upon how well the trust succeeds in investing and managing the money. If the trust does well, Rex will be paid more each year.

Free Consultation with a Utah Estate Lawyer

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.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

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Putting a Trust in a Will

Putting a Trust in a Will

There must be a valid will to properly designate how and to whom a person’s property is distributed upon their death. If you would like to create a trust that will come into effect only after your death, consider putting a testamentary trust into your will. Read on to learn about how to place a testamentary trust in a will.

What Is a Testamentary Trust?

A testamentary trust is a type of express trust that is written in a will or in a document incorporated by reference into a will, which arises upon the death of the settlor. It specifies what assets or funds are to be distributed after the death of the settlor. Testamentary trusts are preferred over other types of trust because they can protect the assets from the immaturity of minor children or other family members.

Regarding testamentary trusts, the following parties are involved:

  • Settlor: is the person who creates the trust to transfer his or her assets to the beneficiaries. This person is also called the “grantor” or “trustor.”
  • Trustee: is the person who will handle the trust and manages the assets or the funds involved in the trust. A trustee holds the legal title to those assets.
  • Beneficiary(s): is a person or entity that receives a benefit from the trust. Beneficiaries of a testamentary trust are usually minor children, family members with disabilities, or anyone who inherits a large sum of money.
  • The probate court: is a court that has jurisdiction over the probate of wills and administration of estates. The probate court will check up on the trust and make sure it is being properly handled.

Creating a Testamentary Trust In a Will

To create a testamentary trust in a will, the settlor must designate a trustee and specify the beneficiaries. As mentioned above, a testamentary trust comes into effect not until the settlor dies. Thus, the testamentary trust must be contained in the settlor’s last (final) will, so the trust can be created upon the settlor’s death.

Then, the probate process will take place. A testamentary trust is not automatically created upon the settlor’s death. While other types of trusts may avoid probate, a testamentary trust must go through the probate process. The testamentary trust will come into effect upon the completion of this process.

After the provisions are reviewed by all parties, a trust will proceed to generate distributions. A trustee, chosen by the settlor, will manage the property or funds in the trust until the trust terminates. The trustee may be required to go to the probate court at least once a year and ensure the court that the trust is being handled in accordance to the will and state law.

Example of a Testamentary Trust in a Will

Let’s say you decide to include a testamentary trust in your will. You have a 3-year-old daughter and you want her to receive your assets after you die. You designate your uncle, Bob, as the trustee of your testamentary trust. You specified that upon your death, Bob will manage your assets for the benefit of your daughter until she reaches the age of 21. You want Bob to be in charge of giving your daughter monthly income for education and expenses. When your daughter turns 21, she will receive the remaining assets, and the trust will terminate.

Free Consultation with a Utah Estate Lawyer

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.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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