Can You Just Write A Will And Get It Notarized?

Can You Just Write A Will And Get It Notarized

No. You can’t. If you do that, you will did not follow will formalities.
Why are wills written by lawyers almost always notarized? It is not the will itself that is notarized, but rather the self-proving affidavit that is attached to the will. When a person’s will is presented for probate after the person’s death, the will must be proved. The word “probate” comes from the Latin “probare”, meaning to test or to prove. In probate, we are proving the will.

How to Make Up a Simple Will and Have It Notarized

Your will designates who is to receive your possessions and assets when you pass away. If you die without leaving a properly executed will, confusion or uncertainty may arise regarding the distribution of your property and how your physical remains should be handled. A will does not have to be signed by a notary public to be legally binding, but a notary’s signature helps to establish the validity of your will.

• Handwrite or type a title for your will, such as “Last Will and Testament.” Below this title, write your full legal name, your present home address and your Social Security number or other identifying information such as your date of birth.

• Write a paragraph affirming that you are of sound mind and memory at the time of writing the will; your wishes are expressed in the document without undue duress or influence from any other person; all previous wills are now revoked; and at the time of writing the will, you are of legal age to create a will. In Utah, the minimum age to write a will is 18.

• Designate an executor for your will. You can also name an alternate executor to serve if your first choice is unwilling or unavailable. Often, the executor is either your spouse or the principal beneficiary of your will.

• Name your beneficiaries in your will. Explicitly state what possessions or assets you wish to bequeath to each person, and make sure their identities are clear – use a full name and date of birth to identify each beneficiary. If you have a spouse and do not wish to make that individual a beneficiary of your will, you should seek legal counsel for advice on how to exclude your spouse from your will.

• Specify any wishes you have as to your funeral arrangements. If you have specific desires for how your remains should be handled, state them in the will.

• Place your signature at the end of the will. Your signature should be preceded by a statement that you signed the will before designated witnesses on a particular date. Do not sign the will until your witnesses are present. Leave a signature space for a notary public.

• Secure the services of a notary public before you sign your will. Many bank branches have notaries on staff, as do most law firms. Take your will to the notary’s office and sign in the presence of the notary and your witnesses.

Where You Can Go Wrong With a Do-It-Yourself Will

It is possible to write a will all by yourself, type up on a piece of paper detailed instructions on the distribution of your worldly goods after your death, without the help of an attorney. But if you are planning anything complicated, this might have all the authority of a grocery list that has been notarized. And when there are mistakes, it is possible that the survivors of the deceased will end up in court, spending thousands of dollars to contest a will. Another complication is that each state has its own rules. Some states recognize oral wills; some don’t. In some states, you have to have the will signed at the end and witnessed by two disinterested parties. But some states require three signatures. Even if no one contests your will, the courts still have to follow the letter of the law. Many courts will not validate provisions if the will is not properly executed (with the proper notarization and number of witnesses). Courts will also balk at provisions that do not make sense. Even uncontested wills can remain in expensive probate limbo, Because of the disparate nature of do-it-yourself projects; there are no aggregate statistics on how many people across the country file their own wills each year.

Here is what can go wrong, and how to avoid it:

• Naming an executor: Designating a trusted individual to carry out your last wishes is a complicated choice. Whom you choose is the real linchpin to the proper closing of your estate. Do not simply pick someone who cares about you, but someone who either has some financial acumen or knowledge of the law or better yet, both.

• Leaving stuff to pets: If you want to make sure that your pet is taken care of, then don’t leave your pet money in your will. Instead, you need to provide for your pet’s care through a human. The individual should be sure to leave the named caretaker with all of the information he or she will need to care for the pet.

• Putting conditions on heirs to receive payouts: This can lead to problems in court. “Often the conditions aren’t spelled out with sufficient clarity,” Sometimes the courts find the conditions illegal or impractical to enforce. For instance, if a parent wants their child to lose 20 pounds or graduate from college before receiving money, someone has to stick around and make sure that the condition is enforced, and that can mean paying an executor additional fees for a long time.

• Designating unusual end-of-life decisions: The main problem here is that some consumers confuse wills with living wills. If you put in your will, for instance, that you do not wish to be placed on life support in the event of a medical emergency, that document is not likely to be read until after you die, or possibly when you are in a lengthy coma. By then, it is too late.

• Designating guardians for children: The failure to fill out a legal document designating a guardian for your children is a common error, says an expert, as is not having a backup, in case the first guardian gets sick or dies.

• Failure to coordinate beneficiary designations: You may have a life insurance policy or retirement account that has a beneficiary named as part of the process. If you have something different listed in the will, what is on the account takes precedence. So you may put in your will that you want your best friend’s son, whom you always regarded as “family,” to receive the funds from your 401(k). But if you die without having designated a beneficiary on the actual account, or have named somebody other than your best friend’s son, the money likely will not get to him. The funds will go to the named beneficiary first, and then will follow a hierarchy through your blood relatives.

• Funeral instructions: This is similar to the living will confusion. Most wills are not found or submitted to probate until after the funeral has taken place. If you are going to put your funeral instructions in a will, it’s advisable that you alert your executor, the person you name to handle the details of the will.

• Dealing with blended families: It probably won’t be contentious if the family gets along, but if you know your kids from your second marriage don’t think much of your kids from the first, you may want to consider taking inventory and being very clear about who gets what of your belongings. People will fight over scarves and jewelry, even though there’s no value to them. It isn’t the money so much as the principle over it.

Statutory Requirements for a Valid Written Will

The will must have been executed with testamentary intent;
• The testator must have had testamentary capacity:
• The will must have been executed free of fraud, duress, undue influence or mistake; and
• The will must have been duly executed through a proper ceremony.
Testamentary intent involves the testator having subjectively intended that the document in question constitute his or her will at the time it was executed. Ordinarily, the opening recital, e.g., I, Jane Doe, do hereby declare this instrument to be my Last Will and Testament . . .” will suffice.

Testamentary Capacity

In addition to testamentary intent, the testator must have the testamentary capacity, at the time the will is executed. Generally, it takes less capacity to make a will than to do any other legal act. As guidance, a four-prong test is often used. The testator must:
• Know the nature of the act (of making a will)
• Know the “natural objects of his bounty”
• Know the nature and extent of his property
• Understand the disposition of the assets called for by the will.
A common modification to the above list of requirements is that the testator be of sound mind and capable of executing a valid will. Accompanying the competency standard is a minimum age requirement, which is usually age 18.

Signature Requirements

Most courts take a liberal view as to what constitutes a testator’s signature. These standards range from the testator’s first name, nickname or even an “X” by an illiterate person. Additionally, proxy signatures (made by another person) are acceptable, as long as the signing is at the testator’s direction and in his or her presence. In order for the testator’s signature to be valid, it has to be done as a volitional act by the testator. Although someone can assist the testator in this task, the signing must still be at the testator’s direction. In most states, there is no requirement that the testator sign at the end of the will (subscribe his signature). The signature can appear anywhere, provided it was intended by the testator to be his signature. In many jurisdictions, the signature must be at the end of the will to be valid. In these jurisdictions, even deciding where the end of the will is can create uncertainty. Some jurisdictions apply an objective test requiring the testator to sign at the physical end (or last line) of the document.

In contrast, some jurisdictions say that what constitutes the end is a subjective test, holding that the logical or literary end is the appropriate place for the signature. Here, the question is whether the testator subjectively thought that he was signing at the end of the will. Signing anywhere can create confusion as to the effect of provisions that may appear after the testator’s signature. Historically, if there were material provisions appearing after the testator’s signature, the entire will was void. The modern view is that everything appearing before the signature is given effect; but the provisions that follow the signature are void (even assuming they existed at the time the will was made). An exception to this view is if the provisions following the signature are so material that deleting them would subvert the testator’s testamentary plan. In such a case, the entire will is void.

Witnesses, Attestation and Self-Proving Affidavit

In addition to the testator signing the will, it also has to be signed by witnesses. Like the testator, the witnesses must possess certain minimal qualifications or their attestations may be legally insufficient to validate the will. Specifically, the witnesses must be competent, they must be mature enough and of sufficient mental capacity to understand and appreciate the nature of the act that they are witnessing and attesting to, so that, if needed, the witnesses could testify in court on these matters. A witness usually is judged incompetent to serve as a witness to the will if the person is also an interested witness. An interested witness is one who is a beneficiary under the will. At common law, the will was denied probate in those instances. Most states require only an acknowledgement to the witnesses by the testator that his signature appears on the document. Most courts are indifferent about whether the attesting witnesses or the testator signs first. Most jurisdictions define presence as the testator being conscious of where the witnesses were and what they were doing when they signed. Other jurisdictions dictate that the presence test is only satisfied if the witnesses are in the testator’s line of sight when they signed.

Absence of fraud and undue influence

• Fraud is one ground to invalidate a will. Fraud involves:
• False statements of material facts,
• Known to be false by the party making the statements,
• Made with the intention of deceiving the testator,
• Who is actually deceived, and
• That causes the testator to act in reliance on the false statements.

Fraud in the execution involves the testator being deceived as to the character or contents of the document he is signing. Fraud in the inducement involves the testator making the will or writing a provision that relies upon a false representation of a material fact made to him by one who knows it to be false.

Undue influence involves substituting another person’s will for that of the testator. The factors of undue influence are:

• a susceptible testator;
• another’s opportunity to influence the testator;
• improper influence in fact; and
• the result showing the effect of such influence.

Undue influence is difficult to prove because the evidence must be substantial, going beyond mere suggestion, innuendo or suspicion. Merely having a motive, the opportunity or even the ability to exert undue influence is not sufficient to prove it actually happened. If the elimination of a provision created under undue influence does not defeat the overall testamentary plan, it can be stricken; the rest of the will is still valid. In contrast, if this revision alters the testator’s wishes for the disposition of his property, the entire will is set aside. Yet, the existence of a confidential relationship between a testator and a beneficiary may raise a presumption (often rebuttable) of undue influence, especially if the beneficiary played an active role in procuring the will and the disposition under the will is unnatural.

Absence of mistakes

If a testator somehow signs a document purporting to be his will but it is the wrong document, most courts will hold that there is no will. Generally, if a testator omits some provision in his will it cannot be added postmortem (after death), because a will cannot be reformed or revised once the testator has died. [In the next chapter we will review when extrinsic (outside) evidence is admissible; however, that is used for to clear up ambiguities, not to add new terms to the will. Conversely, a provision included in a will by mistake may be omitted by the probate court when the will is admitted to probate, if the mistaken inclusion is separable from the rest of the will. The deletion of the provision cannot substantially alter the overall will or the intent of the testator. This type of modification is similar to one found in contracts that allows a provision that is illegal or conflicting to be eliminated; however, the contract itself still remains valid. There can also be a mistake in the inducement, when a testator is mistaken about a material fact and makes no provision in the will because of it. Unlike fraud in the inducement, a mistake in the inducement will not cause the will to be invalid. Such innocent mistakes will not adversely affect the will’s validity. In effect, no relief is granted for the injured party. Although the will may not be invalidated or changed, the intended beneficiaries might be able to hold the attorney liable for negligent drafting. Ultimately, the testator is responsible for ensuring that the will accurately reflects his intentions. This is crucial, since once the testator dies; there usually is no way to rectify any problems with the will. Courts will not step in to rewrite someone’s will.
Special consideration for attorney-draftsman as beneficiary or fiduciary
Attorneys are held to a higher standard when it comes to undue influence claims. A bequest to an attorney is particularly susceptible to a claim of undue influence because of the confidential and fiduciary nature of the attorney-client relationship. Accordingly, many courts presume there was undue influence in instances where the attorney drafted the will.

Safekeeping of Wills

A testator’s first inclination may be to keep the will in a safe deposit box, along with other important papers. This option could cause delay in locating the will because access to a decedent’s safe deposit box to search for the will requires an ex parte court order. As an alternative, the will can be deposited in a will safe or vault of the attorney who drafted it. Lastly, for a nominal fee, the will can be deposited in the will safe at the surrogate court. This last option could be inconvenient if the testator decided to change the will at a later date. In some jurisdictions, process must be served on the beneficiaries and fiduciaries named in the earlier will if their rights and interests are adversely affected by the later will.

Wills Attorney Free Consultation

When you need legal help with a will, trust or estate plan in Utah, please call Ascent Law LLC for your free 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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Do You Need A Lawyer To Set Up A Trust?

Do You Need A Lawyer To Set Up A Trust

Maybe you’re thinking about how to better manage your property, or you want to make sure your family will be taken care of after you’re gone. If you’re having these thoughts, you might want to think about setting up a trust. A trust is basically a transfer of legal title from the owner (the grantor, trustor, or settlor) to an institution or person (a trustee). The trustee then administers the trust according to the trust terms for the benefit of a beneficiary. There are various factors to consider when setting up a trust. These factors include the size of the estate, the age, and marital status of the grantor. When considering an estate plan, many people contemplate whether a trust is necessary or a will alone is suitable. The choice is often based on cost. Depending on whether an attorney is hired, a trust can be considerably more costly than a will. The key is finding a balance between cost and creating an estate plan that fits your family’s needs.

Living Trusts

A living trust is a legal entity that holds title to and manages assets for an intended beneficiary. A living trust is distinguishable from other trusts in that you, as the grantor, can make changes to the trust or revoke it entirely during your lifetime. You can also act as the initial trustee of your living trust. Living trusts are most often used to avoid the probate process that comes along with passing property through a will. Because assets are owned by the trust, and not by you, they pass by the terms of the trust upon your death, making probate unnecessary.

Hire an Attorney

Trusts are complicated documents and estate planning attorneys can help you navigate through the legal nuances. Attorney’s fees are generally the bulk of the cost associated with creating a trust. The cost for an attorney to draft a living trust can range from $1,000 to $1,500 for individuals and $1,200 to $2,500 for married couples. These are only estimates; legal fees vary based on the attorney and the circumstances. Rates may differ depending on the state in which you live. The cost of hiring an attorney to draft a trust can be five to six times that of drafting a will.

Living Trust as Part of an Estate Plan

If you decide that hiring an attorney is the way to go, you will likely get more for your money than just the living trust. Living trusts are most often used as part of a comprehensive estate plan that can include wills, powers of attorney and health care directives. You should find out exactly what is included in the attorney’s fee prior to agreeing to any proposal.

Titling Assets to the Trust

In order to pass through the trust and avoid probate, assets must be re-titled into the name of the trust. For instance, if you want to place your home in the trust, you must change the deed so that the trust is named as owner. Once the deed is changed, it should be recorded with the registrar of deeds, and is subject to the same fees as any real estate transaction. These fees vary by state. You can check with your local registrar of deeds for your state’s fees associated with a deed transfer. Whether or not you choose to hire an attorney to draft your living trust, you will be responsible for the expense of titling assets to the trust. A living trust is an estate planning document created during one’s lifetime. A revocable living trust goes into effect during one’s lifetime and provides a way to manage one’s assets during his/her lifetime and to dispose of assets after they pass away. There are many reasons a living trust is preferable to a last will and testament. For example, when you create a living trust, you can avoid the time and expense associated with probate. While the estate’s assets are in probate, they may be frozen – a living trust avoids this as well. Individuals also choose to make a living trust to minimize tax consequences and for privacy concerns.

Basics Of A Living Trust

A revocable living trust includes the following:
• The name of maker of the trust (known as the grantor, settler and/or trustor);
• The name of the individual responsible for managing the trust and its assets (the trustee – this is typically yourself);
• The name of the individual who will take over the responsibility of managing the trust after you pass away (the successor trustee);
• The names of the individuals or organizations you leave your trust property to (the beneficiaries);
• The name of the individual in charge of managing the assets you leave to minor beneficiaries (also called the trustee).

As long as your living trust contains these basic elements, you can make your own living trust. Some choose to hire a lawyer, and more specifically, an estate planning attorney to prepare their estate planning documents, but this is not always necessary. Many individuals are successful in making a living trust on their own without the use of a living trust attorney. If you are interested in making your own living trust, be sure to sign the trust document you created before a notary public and look up the law in your state as to whether additional witnesses are required. You will then need to fund the trust by transferring your assets into the trust. Some states require real estate deed transfer documents to be prepared by an attorney so be sure to check with your local land records office for this as well.

Benefits Of Hiring An Estate Planning Lawyer

Individuals with complex estate planning needs should consider hiring an attorney to prepare their living trust. You may consider hiring an living trust lawyer if you’ve a complex estate plan. For example if your plan includes:
• generation skipping
• conditions to beneficiaries,
• beneficiaries with special needs or receiving government assistance,
• high dollar life insurance policies, and
• assistance with trust funding (which is the transferring of your assets to the trust)
One of the most significant drawbacks to hiring an attorney is the cost of retaining an estate planning attorney or firm to prepare your living trust. If you are interested in creating a living trust, a great first step is to do a little research to familiarize yourself with the basics and determine whether you are able to prepare your estate planning documents on your own or if you would benefit from hiring an attorney.

A trust is a way of holding and managing property, whereby the person setting up the trust (called the grantor, settlor, or trustor) transfers property to a trustee, who manages the property for the benefit of others (called beneficiaries). A trust is used as part of a comprehensive estate plan, along with other documents such as a will, power of attorney, and healthcare power of attorney.
Why to Set Up a Trust
A trust is set up to achieve certain benefits that cannot be achieved with a will. These can include:
• Avoiding probate
• Avoiding or delaying taxes
• Protecting your assets from creditors of both you and your beneficiaries
• Maintaining privacy regarding your assets
• Exercising greater control over your assets than might be achieved with an ordinary will
• Allowing you to qualify for certain benefits, such as Medicaid for long-term care
• Providing financial support for a person with a disability, while allowing the person to receive government disability benefits
If you are looking to achieve one or more of these goals, you should consider setting up a trust. A will and a living trust do not serve exactly the same function. Depending upon your situation, you may only need a will. But if you decide that you need a living trust, you will also need a will. It’s important to know which choice is better for you.
How to Set Up a Trust
• Creating the Trust Agreement: The grantor creates a trust agreement, which is a legal document that designates the grantor, the trustee, and the beneficiaries, and outlines how the trust assets are to be managed and distributed. Part of this step is deciding who you want to name as beneficiaries, how you want the trust income and assets distributed to them, and who you want to name as trustee (or trustees).
• Funding the Trust: The second step, called funding the trust, is for the grantor to transfer assets to the trust. A trust agreement is worthless unless the trust is funded. How this is done depends upon the nature of the property:

• Real estate: To transfer real estate, the grantor executes a deed that transfers the title to the property to the trust.
• Personal property with a title document: Some assets, such motor vehicles, boats, RVs, airplanes, and mobile homes (also known as modular or manufactured homes) have some type of title document, which can be transferred to the trust. This can also be done with stocks and bonds.
• Other personal property: All other property without a title document can be transferred by simply writing a description of the property on a piece of paper (such as “all of my household goods,” or “my coin collection”), and making a note that it is being transferred to the trust.

Time to Set Up a Trust

In general, it is possible to set up a functioning trust in a few days to a couple of weeks. If a lawyer creates your trust, the time will vary depending upon how quickly you can get an appointment, how quickly you can get the required information submitted, and how long it takes the lawyer to create the trust agreement and take any action needed to fund the trust. If you create your own trust, the time will also vary according to how quickly you can become educated about trusts.

How Much It Costs to Set Up a Trust

If a lawyer sets up your trust, it will likely cost from $2,000 to $7,000, depending upon the complexity of your financial situation. For example, some situations might require a revocable trust for some assets, and an irrevocable trust for other assets. A comprehensive estate plan (which may include a will, power of attorney, living will, healthcare power of attorney, and changing how some assets are owned) will cost more than a single trust document. While you can make a trust by yourself using self-help books or online guides often, creating a trust document is confusing and complex. Having the right support, either through an online service or attorney review of your trust, can give you the confidence you need to know you’re setting it up correctly.

Setting Up A Trust With An Attorney

Setting up a trust, unlike leaving your assets to someone via will, ensures that your assets are used precisely as you intend them to be for the beneficiaries of the trust. For extensive estates with a large variety of assets, this can be a complicated process requiring the use of estate planners, financial managers and attorneys to make certain the trust parameters are fully fleshed out. For those with less extensive estates, you can forgo the expert help, instead using a living trust kit. With the trust kit you use prepared document templates, providing information specific to your financial holdings and desires. The document produced is legally binding, and its use saves you legal fees when you feel an attorney’s advice is unnecessary. The living trust kit contains trust document templates with boilerplate language that enables you to set up a simple trust without outside assistance. Find a software-based version if possible, as it will allow you to follow on-screen prompts for the entry of information pertaining to the trust, explaining the process of establishing the trust as you fill out the forms. Determine if you wish to create a living trust that takes effect before your death or a deceased trust that only begins after your estate goes through probate. If you choose a living trust you’ll also need to decide between creating a revocable or irrevocable trust. With an irrevocable trust you’ll need the agreement of the beneficiaries as well as the trustees to make any changes, whereas a revocable trust is dissolvable with the issuance of a letter of revocation, allowing more leeway in making any modifications necessary.

Trust And Estate Lawyer Free Consultation

When you need help to draft a will, trust or estate plan, please call Ascent Law LLC for your free 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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How Do You Find Out If An Estate Has Been Probated?

How Do You Find Out If An Estate Has Been Probated

Pretty much every individual deserts a few resources that don’t have to experience probate. So regardless of whether you do direct a probate court continuing for the home, not all things will must be incorporated. That is uplifting news, since property that doesn’t need to experience probate can be moved to the general population who acquire it considerably more rapidly. Essentially, probate is vital just for property that was:

• possessed exclusively for the sake of the perished individual—for instance, land or a vehicle titled in that individual’s name alone, or
• a portion of property possessed as “inhabitants in like manner”— for instance, the expired individual’s enthusiasm for a stockroom claimed with his sibling as a venture.

This property is regularly called the probate domain. On the off chance that there are resources that require probate court procedures, it’s the duty of the agent named in the will to open a case in probate court and shepherd it to its decision. In the event that there’s no will, or the will doesn’t name an agent, the probate court will delegate somebody to serve. In any case, the individual in control can enlist a legal advisor to help with the court continuing, and pay the legal counselor’s charge from cash in the bequest.

Normally, a significant number of the advantages in a domain don’t have to experience probate. On the off chance that the perished individual was hitched and possessed most everything mutually, or did some intending to keep away from probate, a probate court continuing may not be important. Here are sorts of advantages that don’t have to experience probate:

• Retirement accounts—IRAs or 401(k)s, for instance—for which a beneficiary was named
• Life coverage continues (except if the bequest is named as beneficiary, which is uncommon)
• Property held in a living trust
• Assets in a payable-on-death (POD) financial balance
• Protections enlisted in exchange on-death (TOD) structure
• U.S. reserve funds securities enlisted in payable-on-death structure
• Co-possessed U.S. reserve funds securities
• Land subject to a legitimate exchange on-death deed (permitted uniquely in certain states)
• Annuity plan disseminations
• Wages, pay, or commissions (up to a specific sum) due the expired individual
• Property held in joint tenure with right of survivorship
• Property claimed as occupants by the sum with a companion (not all states have this type of proprietorship)
• Property held in network property with right of survivorship (permitted distinctly in some network property states)
• Vehicles or pontoons enlisted in exchange on-death structure (permitted distinctly in certain states)
• Vehicles that go to close relatives under state law
• Family products and different things that go to close relatives under state law

Furthermore, most states offer improved probate procedures for domains of little worth. The less difficult procedure is usually called “rundown probate.” The agent can utilize the easier procedure if the complete property that is liable to probate is under a specific sum, which fluctuates significantly from state to state. In certain states, the breaking point is only a couple of thousand dollars; in others, it’s $200,000. Since you check just the property that must experience probate—and avoid property that was mutually possessed or held in trust, for instance—some extremely enormous bequests can exploit the “little home” methods. For instance, say a bequest comprises of a $400,000 house that is mutually claimed, a $200,000 financial balance for which a payable-on-death beneficiary has been named, a $100,000 IRA, and an exclusively possessed vehicle worth $10,000.

The domain has an estimation of more than $700,000, however the main probate resource is the vehicle—and its worth qualifies it for the little bequest system in pretty much every state.

A domain expense is a duty forced on the exchange of a perished individual’s estate, and can be forced by both the administrative and state governments. As of now most states, including Utah, don’t gather a home expense. Up until January first, 2005, Utah gathered a estate charge that was equivalent to a segment of the government domain duty bill. Nonetheless, government laws changed and Utah’s estate duty was successfully dispensed with. Then again, the national government imposes a domain charge. Be that as it may, not all homes are required to pay the government domain charge. As of the year 2015, the government home assessment is just forced on assessable estates that surpass $5,430,000. So as to decide the estimation of an expired individual’s “assessable estate,” visit the IRS’ home expense site page. When somebody passes on they either kick the bucket testate (with a legitimate will) or intestate (without a substantial will).

In any case, the perished’s estate (or possibly some portion of it) will probably experience probate. Probate is the lawful procedure by which a perished individual’s home is appropriated, after all obligations, asserts, and assesses that the domain owes are satisfied. In any case, not all property experiences probate. For instance, together held property, money related resources with an assigned demise beneficiary, revocable living trusts, and blessings all go outside of probate. With respect to any part of the estate that goes through probate, after every relevant obligation and duties are satisfied the court will appropriate what is left of the domain to the expired’s heirs. On the off chance that the perished bites the dust with a substantial will, at that point the probate court will endeavor to settle the estate as indicated by the particulars of the will. In the event that the expired passes on intestate, at that point the domain will be appropriated by Utah’s laws of intestate progression. The accompanying diagram plots the rudiments of Utah’s progression laws. Your estate comprises of all property of any benevolent that was in your name just, with no arrangement on the title of proprietorship for others to possess it. A few homes must experience a probate. Probate is a court-managed process for paying your bills and conveying your property as you need after your demise. Probate law in Utah was overhauled in 1977, and the procedure currently is neither costly, nor convoluted, nor tedious. A “probate” estate is one that must be probated to disperse the property; an “assessable” domain is one that must pay a “home duty” or “legacy charge” to either the state or government.

Your domain might be assessable regardless of whether it need not be probated. On the off chance that your heirs as well as beneficiaries get more than $1,000,000 (this sum is liable to yearly change), there is an expense to be paid. Cash owed to, or individual property of, an individual who has kicked the bucket (a “decedent”) must be paid to or conveyed to “an individual professing to be the successor of the” endless supply of a sworn statement. Such an affirmation can’t be utilized to move any property if the net estimation of the decedent’s whole domain (not including engine vehicles) is more than $100,000, nor can a testimony be utilized to move responsibility for estate. To move the title of not in excess of four engine vehicles, for example, cars, trailers, semi-trailers, or vessels, the Utah Division of Motor Vehicles can help a successor with the best possible sworn statement. “Cash owed to” the decedent incorporates, for instance, bank or credit association accounts that are held for the sake of the decedent just, or continues of a protection arrangement payable to the domain. “Individual property” of a decedent incorporates, for instance, apparel, adornments, and furniture, held by any individual. The individual holding the property can be coordinated to convey the property to the successor by an oath. A “successor” is any individual you have named as a beneficiary in your will; in the event that you have no will, your successors are the people who will acquire under the law of intestate progression, talked about later. On the off chance that you don’t claim any land, and your estate is under $100,000, no probate is required. It is conceivable to orchestrate your undertakings so there is no estate to probate upon your passing. For instance, you can give all your property away the day preceding you pass on.

You may likewise mastermind that you claim everything mutually with somebody who you expect will endure you. “Joint tenure with privileges of survivorship” signifies just that each individual named on the title as your joint occupant who endures you will claim the property without it ending up some portion of your estate. In the event that you and your mate possess your home as “joint inhabitants”, upon your demise (in the event that you bite the dust first) your life partner will claim the home without probate to move proprietorship. A similar principle applies to responsibility for things you possess, in spite of the fact that the law does not for the most part incorporate the intensity of joint proprietorship for such things of property as furniture or garments or adornments.

• Joint tenure has weaknesses. On the off chance that your kid possesses your financial balance with you together, the tyke could take the cash and spend it for herself. In the event that a bank gets a judgment against your youngster, the loan boss could guarantee the record. On the off chance that your kid passes on before you or gets separated, the tyke’s mate may turn into a section proprietor.

• In the event that your youngster is a joint proprietor of your home, she could square you from selling it. There are additionally charge issues: on the off chance that you give property away, you might be required to record a blessing government form; and if your kid (to whom you deeded a joint tenure) sells your home after your passing, the kid may need to cover capital increases regulatory expense. Probate of your domain including your home maintains a strategic distance from the capital additions charge. Utilizing a trust likewise keeps away from this duty.

• A more secure technique than joint responsibility for/deposit records is to assign the records to be “Paid on Death” (POD) to named beneficiaries. For instance, you can make your companion a co-proprietor of your records, and assign your kids as POD beneficiaries on the record. After your and your life partner’s demises, any equalization in the record will be paid to your kids (who need just demonstrate your passing and their characters). Your youngsters are not “proprietors” of the record while you are alive, so none of the kids can make withdrawals, nor can their banks.
Another choice is to give all your property to a trust that deals with the property for your advantage while you are alive and conveys the property as you direct when you kick the bucket. Such a trust is frequently called a “living trust” since you build up it while you are alive. It is additionally called “revocable” on the grounds that you commonly hold the privilege to deny the trust. Not all domains must experience probate however. To begin with, if a domain falls beneath a specific edge, it is considered a “little home” and doesn’t require court supervision to be settled. Snap here to discover Utah’s little domain limit and method. Second, not all advantages are liable to probate. A few sorts of advantages move consequently at the passing of a proprietor with no probate required. The most well-known sorts of benefits that go without probate are: Joint Tenancy resources when one joint occupant kicks the bucket, the enduring joint inhabitant turns into the proprietor of the whole resource, without the requirement for a court request. This is designated “right of survivorship.”

For instance, if a house is possessed along these lines, “Jane Sage and John Sage, as joint inhabitants,” and Jane passes on, John claims the whole house. Tenure by the Entirety or Community Property With Right of Survivorship-these are types of property possession that capacity like joint occupancy, in that the survivor claims the whole property at the demise of the other inhabitant, yet are just accessible to wedded couples. Beneficiary Designations-retirement records and life coverage strategies have named beneficiaries. Upon the demise of the record or arrangement proprietor, these beneficiaries are qualified for the advantages in the record or the returns of the approach.

Payable on Death Accounts/Transfer on Death Accounts-bank and investment funds can have assigned beneficiaries, as well. The record proprietor can round out structures to assign who ought to receive the record resources after their demise. Third, if a decedent had made a Living Trust to hold his or her’s biggest resources, than that estate, as well, won’t experience probate, except if the benefits left outside of the trust indicate more than Utah’s little domain limit. That, truth be told, is the reason that Living Trust was made, to maintain a strategic distance from probate after the passing of the trust’s Grantor. Yet, for homes in Utah that surpass the little home’s edge, and for which there is either no Will, or a Will (however not a Living Trust), probate will be required before a estate can be transferred to the decedent’s heirs or beneficiaries. The general methodology required to settle a home by means of probate in Utah is set out in a lot of laws called the Uniform Probate Code, a lot of probate systems that has been received, with minor varieties, in 15 states, including Utah. In Utah, under the UPC there are three sort of probate procedures: casual, unaided, and administered formal.

Free Consultation Estate Attorney In Utah

When you need legal help with a probate or estate in Utah, please call Ascent Law LLC for your free 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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General and Limited Partnerships

General and Limited Partnerships

After the entity known as a sole proprietorship, general partnerships are the easiest type of business structure to form. Unlike corporations or limited liability companies (LLC), partnerships have no formal requirements or paperwork that needs to be filed. All you need to form a partnership is a business and a sharing of profits (there’s no such thing as a non-profit partnership). If you are considering starting a business in Utah, or if you already have a business venture going, you really should make sure that you have a business lawyer in Utah. Partnerships are a unique business relationship because they are so easy to form, and, as you’ll see below, potentially difficult to manage and dissolve.

Types of Partnerships

There are three types of partnerships that businesses can choose — general, limited or joint venture. In a general partnership, the partners equally divide management responsibilities, as well as profits.

Joint ventures operate as general partnerships, but are specifically formed for a limited purpose or a single project. If, however, the joint venture is repeated, it may be labeled a general partnership, at which point it must follow the rules for dissolution of a general partnership.

Small Business Partnership

In a limited partnership, there are managing partners and limited liability partners (who are essentially passive partners who just invest money). The managing partner(s) manage the business and assume all liability from the success or failure of the business, while the limited partners can only lose the money they invested. Limited partnerships are more complex and generally require paperwork that formally recognizes the structure.

For this article, we’ll focus on general partnerships, as they are the most common, with a few references to limited and joint venture partnerships, where relevant.

Utah Partnership Basics 

Because partnerships are so easily created, you’ll want to choose your partners carefully and, wherever possible, enter into a partnership with a written document that guides the behavior of all parties. Without a written agreement, partners are required to follow certain rules for partnerships.

Another reason to choose partners wisely is that all partners share equal authority to bind the partnership to business deals and debt obligations.

Liabilities to Creditors

Probably the most important thing to know about partnerships is that owners are personally liable for all of the partnership’s obligations. Creditors can go after the partners’ personal assets, including bank accounts, cars, and homes. It is a frightening proposition and is the main drawback to partnerships.

There is an exception to personal liability in the case of limited partners, who have only invested money into the partnership. Limited partners must file a limited partnership certificate that includes the names of all general partners. Without such a document filed, even if the intent by all parties is to have general partners who run the business and limited partners who only invest money, the limited partners may still be personally sued by creditors.

Any debt that is owed to creditors can be collected from a single partner. The legal term is joint and several liability, and it means that each partner is individually responsible for the entire debt. It’s a legal method that prevents passing the buck between defendants (or, here, partners). Of course, if one partner does end up paying for the entire debt, he can sue the other partners to collect his fair share.

Responsibilities to Other Partners

As in any marriage, you owe certain duties and bear responsibilities to your partner(s). These responsibilities include:

  • a duty of loyalty and fiduciary duty
  • equal profit sharing (unless there’s an agreement that says otherwise)
  • equal control and no salary (unless there’s an agreement)

The fiduciary duty and duty of loyalty that all partners owe each other simply mean that a partner must act in the best interest of the partnership and can’t act primarily to enrich himself. Partners must provide a proper financial accounting of their actions, and the partnership can sue individual partners for any financial wrongdoing.

Partnership Taxes in Utah

Because the partnership isn’t a special corporate entity (like an LLC), taxes on profits are paid through partners’ personal income tax. The partnership reports its profits to the IRS (though it doesn’t pay taxes on them), and this way the IRS can be sure it collects the proper amount.

Terminating a Utah Partnership

In the absence of a written agreement, a partnership ends when a partner gives notice of his express will to leave (dissociate). When there’s a written agreement, the partnership ends when an event outlined by the agreement occurs or when a majority of the partners decide to end the partnership after a single partner dissociates.

Whether there is a written agreement or not, it’s fairly easy to leave a partnership, though you’ll still be responsible for obligations that the partnership incurred while you were there. Terminating a partnership is more of a process than a single moment in time because there generally remains business that needs to be wound down (i.e., debts to be paid, obligations to be fulfilled).

Free Consultation with a Utah Business Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free business 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

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Life Insurance Options

Life Insurance Options

Life insurance can be an important part of estate planning, especially for the parents of young children or a disabled child. The purpose of an insurance policy is to provide cash for the beneficiaries upon the premature death of the policyholder. For a person that does not receive regular income from investments or other assets, an insurance policy can replace lost earned income.

The following is an overview of some of the available life insurance options.

Term Life Insurance

Pros

  • It is relatively inexpensive
  • Various policy terms of coverage are available

Cons

  • It is subject to cancellation
  • Premiums become more expensive as the policyholder ages

The policyholder of term life insurance receives coverage for a certain amount of time specified in the policy. Because it only covers a specified period and the premium only pays for the insurance policy, this is the least expensive type of insurance available. Terms of coverage, for instance, may range from 5, 10, or 20 years. Once the term ends, the policyholder may have the option to renew the policy beyond the original term but the premium usually increases with each renewal.

Depending on the insurance company, a policyholder may have several options under term life insurance. For instance, many policies can be:

  • Renewed: Upon termination, a policyholder may continue coverage by paying a new premium and renewing coverage for a new term.
  • Converted: During the policy term, the policyholder may change from term life to a permanent life insurance option offered by the insurer.

Term insurance is not appropriate for all types of policyholders. For instance, term life insurance may be most beneficial to a person with young children or for a person with temporary expenses, such as a home mortgage or an auto loan. Term insurance is less desirable for a person living off investments and retirement income.

Permanent Life Insurance

Pros

  • It is not subject to cancellation unless the premium is not paid
  • It endures for the life of the policyholder
  • It is a type of investment
  • Tax benefits may apply

Cons

  • It is expensive
  • Commissions and fees may be high
  • Policies are complex

Permanent life insurance is more expensive than term life insurance because it is effective during the entire life of the policyholder (as long as the premiums are paid) and the excess paid into the policy is invested. In general, the premium remains the same over the entire length of the policy. The excess that accumulates from the premium may yield dividends or interest; the policyholder will receive some of this return. The policyholder can choose to apply the investment income to the reserves, borrow against the cash value, or terminate the insurance policy and receive the cash surrender value. The growth in the value of the reserve is tax deferred under federal tax law, unless the policyholder receives the money. In some cases, a partial withdrawal will escape tax liability. In making these determinations, you should always speak with an estate planning lawyer so all of your needs can be addressed and you can be on the right track.

Permanent life insurance is beneficial for someone with a child with special needs or for someone that expects estate taxes to be high.

The following are the various types of permanent life insurance options:

Whole Life Insurance

Whole life insurance provides the policyholder with lifelong coverage as long as they pay the fixed premium amount throughout their life. In general, the younger the policyholder is when beginning coverage, the less expensive the annual premiums will be. As the policyholder pays into the life insurance policy, the cash reserve continues to build. The policyholder may borrow from the cash reserve at the current policy loan interest rate or surrender the policy and receive the cash value of it.

Universal Life Insurance

Universal life insurance combines flexibility with the accumulation of investment income. The following are the benefits of universal life insurance:

  • Can change the amount of life insurance
  • Can adjust the death benefit and premium payments within the limitations of the policy
  • The account value earns tax-deferred interest
  • The net cost of the policy is less than whole life insurance
  • Can borrow or withdraw money from the cash reserve

Variable Life Insurance

A variable life insurance policy allows the policyholder to invest cash reserves into stocks, bonds, and securities. The policyholder will bear some of the risk, but the insurance company will guarantee a certain return on the investment. Consequently, the death benefit depends on how well the investments perform.

Variable Universal Life Insurance

Variable universal life insurance is a combination of the flexibility of universal life insurance with the investment strategy and the risk factor of variable life insurance.

Single Premium Life Insurance

The policyholder of single premium life insurance will pay the entire premium amount in one up-front payment. The benefits include the immediate accumulation of cash value, the elimination of cancellation, and the distribution of tax-free proceeds to the beneficiaries.

Survivorship Life Insurance

Survivorship life insurance, also referred to as “second to die” insurance, is a single policy that insures two people, usually spouses, for a single insurance benefit. When the first person on the policy dies, the survivor continues making payments on the premium. Only after the survivor dies does the insurance company pay the beneficiaries of the policy.

This insurance policy is appropriate for wealthy couples that expect substantial estate taxes or for people with non-liquid assets like a family business. In this situation, the proceeds from the insurance policy can be used to buyout an ownership interest.

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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Estate Administration Law

Estate Administration Law

When a person dies, all of his or her possessions – real estate, money, stocks, personal belongings, etc. – become a part of his or her estate. This really isn’t a part of estate planning but it may be a part of probate law, if the person who passed away didn’t leave a will or a trust.

Estate administration refers to the process of collecting and managing the estate, paying any debts and taxes, and distributing the remaining property to the heirs of the estate. The heirs of an estate are determined by will, and if there isn’t a will, by the intestacy (which means dying without a will) laws of each state.

What Is the Process for Administering an Estate?

Put simply, estate administration is collecting, managing, and distributing a deceased person’s estate. Each state has its own probate laws, which govern the requirements and process for administering an estate. In some cases, an estate may need to be administered in more than one state. Generally, the state in which the person lived in at the time of death is where the estate goes through probate. However, real estate is governed by state law, so real estate in another state might have to be probated in that state. Several states have adopted a version of the Uniform Probate Code, which is designed to simplify the estate administration process and provide similarity among probate laws from state to state.

The Duties of an Executor

The executor is responsible for locating and collecting all of the deceased’s property, making sure any debts and taxes are paid off, and distributing the remaining property and money to the entitled parties. Although anyone can be an executor, the executor must perform with diligence and in good faith. Usually the executor is designated in a will. If the deceased didn’t leave a will, an administrator is appointed by the probate court. If the probate process is complicated, the executor is entitled to hire an attorney – at the expense of the estate – to help him or her with the process. While the executor is not entitled to any proceeds from the sale of property of the estate, generally he or she is entitled to a fee as compensation for administering the estate.

Who Is Responsible for a Deceased Person’s Debts?

Generally speaking, once a person dies, his or her debts are paid off from his or her estate, and if there isn’t enough money to repay the debt, the debt dies with the person. Relatives or beneficiaries of the will are usually not responsible to pay the deceased person’s debts. However, if the relative or beneficiary owned part of the debt or received substantial benefits from the debt, he or she would be responsible for repaying the debt. For example, credit card debt belongs to the account holder. If, however, a relative co-signed on a loan or the credit card was from a joint account, the co-signor or other account holder would have to pay the debt. It’s important to note that in community property states – where property acquired during marriage is considered jointly owned – the surviving spouse may be liable for the debt.

Hiring an Attorney

If you’re in charge of administering an estate and have questions about it, you may want consult with an estate planning attorney. It would also be a good idea to contact an estate planning attorney if you have questions or concerns regarding the debt left by a person who has passed away.

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have an estate issue you need help with. Whether you need to probate an estate, do your own estate planning, or administer a trust, 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

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4.9 stars – based on 67 reviews


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