How Soon Must A Probate Be Filed?

How Soon Must A Probate Be Filed?

In Utah, there are no time limits when applying for Probate, although it’s possible that you won’t be able to deal with your loved one’s affairs until you’ve got a grant of Probate, so you might not want to delay for too long. There are also time limits with regards to submitting an Inheritance Tax return which you need to be aware of.

Time Limit for Probate

After a loved one dies, going through the legal process of Probate is likely to be the last thing you want to do. Understandably you need the time to grieve, and to make practical arrangements like organizing the funeral and securing their empty property. However, at some point you’ll need to find out whether or not Probate is needed. Probate is the process you have to go through in order to get the legal authority to deal with a deceased person’s affairs.

This means that although there aren’t any time limits, you might not want to wait too long before starting the Probate process. You won’t be penalized for delaying, it’s just that all these assets will effectively be ‘in limbo’, as no one will have the legal authority to manage them. Additionally the beneficiaries may become impatient and ask that you step down from your role as Executor or Administrator.

Time Limit for Inheritance Tax

There is one time limit that you need to bear in mind, and that relates to Inheritance Tax and filing of the Inheritance Tax returns. If the short Inheritance Tax Return Form is used, there is no deadline to submit the form. However, if the long Inheritance returns Form is used then it must be submitted within a year of the death of your loved one. If Inheritance Tax is payable, it must be paid within six months of the death. If you fail to meet this six month deadline, you could incur additional interest or financial penalties.

Again, if you are the Executor or Administrator of the Estate, failing to submit an Inheritance Tax return in time could prompt the beneficiaries to complain. Beneficiaries can even ask a Court to remove an Executor.
How quickly the will is probated depends first on how quickly it is filed with the court. The length of time it takes for probate to be completed then depends on a variety of factors. The more valuable the estate and the larger the assets, the longer it may take. An estate with many creditors and bills will also require a longer process. If anyone contests the will, the process will be delayed. Smaller estates with few assets and debts may move more quickly. In most cases, a will is probated and assets distributed within eight to twelve months from the time the will is filed with the court.

Probate has a reputation for lasting just short of forever, but is this always the case, it depends on many factors. Some estates settle or close within a few weeks or a few months, while others can take a year or longer.
The probate process involves a good many steps, all of them necessary to move assets from the ownership of a deceased individual into the ownership of a living beneficiary. His taxes and outstanding debts must be paid as well before this can happen.

All this often chugs along under the supervision of the probate court, and this can further slow things down. The process can slow to a crawl when there are complications. Many deadlines follow a person’s death as his estate is being probated in Utah. Probate is the process by which courts make sure that a deceased person’s debts are paid and property distributed to his heirs. Deadlines in this process must be satisfied in order for the process to proceed smoothly.

Petitioning the Court

The custodian of the will must deliver the will to the superior court and provide a copy to the named executor within 30 days of learning of the death. The Utah Probate Code states that failure to share these documents in a timely fashion creates liability “for all damages sustained by any person injured by the failure.” This step is often done in conjunction with filing a Petition for Probate.

Petition Deadline

The probate process begins when the executor files a Petition for Probate. If the decedent left a will, this document is characterized as a Petition of Will and for Letters Testamentary. If the will does not name an executor, it is a Petition of Will and for Letters of Administration with Will Annexed. If there is no will, the document is a Petition for Letters of Administration. The Petition for Probate must be filed within 3 years after the date of death or the statute of limitations will expire. You can, and should, file before that time period. We suggest filing right away.

Contesting Probate

After the will has been admitted to probate, the court appoints an executor or administrator by issuing Letters Testamentary or Letters of Administration. The law provides that any interested person may contest the admission of a will to probate as long as they petition the court within 120 days after the will has been admitted to probate. The petition must state the basis for the objections.

Creditor Claims

The executor of the estate publishes a Notice of Petition to Administer Estate in the legal notice section of a local newspaper. This publication provides notice to the decedent’s creditors. After publication, the executor must file an affidavit of publication with the court, indicating he has complied with the law. Creditors have four months after the date letters are first issued to the executor or 60 days after a notice of administration is delivered to the creditor.

Filing the Inventory

The Utah Probate Code requires the executor or administrator to file an inventory and appraisal of the decedent’s property with the court within four months of the Letters Testamentary or Letters of Administration being issued. Depending upon the circumstances, courts may extend this time limit.

Tax Concerns

If the estate earns income after the decedent dies, the estate is liable for taxes assessed on that income. This is different from the decedent’s final tax return, which reflects taxes assessed on money earned while she was alive.

The quickest routes to transfer estate assets are through independent administration, monument of title, or avoiding probate altogether. If you must, however, go through formal probate of an estate, the process can drag on for years. The executor does not even have to file for probate for four years. Usually, however, people file wills with the probate court somewhere between couples of months to a year after the death. With formal administration, just the notices to the public, to creditors, and to the beneficiaries can take several months. The judge will have to decide whether to admit the will to probate. There will be multiple hearings along the way. Formal probate can take years, depending on the complexity of the estate and whether creditors or beneficiaries get involved.

The executor, sometimes called the personal representative, is in charge of managing the estate through the probate process. Sometimes, with larger estates, an attorney might be involved as well. Where the personal representative lives in relation to where the attorney is located might not seem like a big deal in this day and age with all the modern technology we have at our fingertips. But the distance between the personal representative and the attorney can indeed make a difference. When a personal representative is located close to the attorney’s office, she can pop in to take care of problems on a moment’s notice. If she lives far from the office or in another state, quick meetings just can’t happen. And keep in mind that almost all documents that are filed with the probate court require the original signature of the personal representative. Faxed or emailed signatures won’t do. The closer the personal representative is to the attorney, the more quickly things will get gone.

Probate will take longer as the number of beneficiaries of the estate increases, particularly if they, too, live far from the probate attorney’s office. This is simply a function of the time it takes to send multiple documents back and forth between numerous people who are located in many different places.

It’s unlikely that any two beneficiaries will agree on everything that must happen with an estate, let alone three, four, or more of them. Some beneficiaries might even hire their own attorneys to monitor the probate process and these types of attorneys tend to nitpick over every single thing the executor does. Suffice it to say that the more the beneficiaries an estate has and the more they find fault with the process, the longer probate will take.

A will contest is a legal proceeding initiated to invalidate a last will and testament. Will contests are based on one of four arguments, or sometimes a combination of them:

• The will was not signed with the proper legal formalities.
• The will was written as it was due to issues of fraud.
• The will was written as it was under duress and undue influence by a beneficiary.
• The deceased lacked the mental capacity to create a will.
The probate proceeding will remain open for a very long time if a will contest occurs. These issues are typically resolved after a lengthy court trial.

A big snarl can occur if the deceased didn’t leave a will. This doesn’t mean that her estate doesn’t have to be probated. It means that the court will be heavily involved in the process every step of the way. The judge will have to appoint an executor because the deceased didn’t nominate anyone in a will. State law will determine which heirs will receive bequests from the estate and in what percentages. Even simple steps in the probate process will take longer than if a will had been available.
It takes longer to probate an estate that owes estate taxes. A taxable estate can’t be closed until a closing letter is received from the Internal Revenue Service and the state taxing authority as well if state estate taxes are also due. It can take anywhere from six to eight months after filing an estate tax return before receiving any type of response from the IRS.

Probate should be relatively simple when an estate is comprised of just a couple of assets, maybe a house and a bank account. The exact rules and requirements can vary by state, but many states make simplified probate options available when an estate isn’t complicated. The total value of the deceased’s probate assets must usually fall below a certain dollar limit. In this case, the probate court will allow the transfer of assets to living beneficiaries based on a small estate affidavit. This type of “probate” can take as little as a couple of weeks. But if the estate is comprised of a house, a bank account, and an interest in the family business, administration can get complicated and drag out.

You can avoid probate of your estate entirely by funding your assets into a living trust. They would pass to living beneficiaries according to the terms stated in your trust formation documents so a probate case never has to be opened with the court. Of course, this assumes that you remember to title all your property in the trust’s name after you form it. You might also consider minimizing your estate by holding title to certain assets in such a way that they’ll pass automatically to living beneficiaries at the time of your death. You don’t necessarily have to go to all the trouble of creating a living trust.

Talk to an estate planning attorney about the possibility of creating a trust, payable-on-death accounts, or holding real estate with someone else with rights of survivorship. Any of these options might minimize your estate so it can qualify as a small estate and pass by affidavit. If the personal representative and the beneficiaries get along, if the assets aren’t complicated, and if the estate isn’t taxable, the probate process could take well less than a year. Otherwise, it can drag on for a year or more.

Probate Attorney Free Consultation

When you need legal help from a probate lawyer 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
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Are Beneficiaries Entitled To A Copy Of The Will?

Are Beneficiaries Entitled To A Copy Of The Will

The beneficiary of a will is any person who is listed on the will as being entitled to receive a defined portion of the deceased person’s assets or income. If the person who has named you as a beneficiary dies, you will normally be contacted and made aware that you have been named as such. You may already know that you were listed as a beneficiary or you may not.

Your rights as a beneficiary of a will:

• As a beneficiary of a will, you are legally entitled to be notified whether or not a valid will was left and what your exact entitlement from the estate is, as laid out in the will.

• The executor of the will does not have a legal obligation to invite all beneficiaries of the will to attend the will reading, nor are they legally obliged to provide the beneficiary with a full copy of the will, unless the beneficiary makes a formal request for the executor to do so.

• Beneficiaries are entitled to receive their entitlement within 12 months of the deceased’s death. If there is any delay in the beneficiaries receiving their entitlements, the executor must provide a reason for the delay.

• Beneficiaries have no legal rights in terms of making funeral arrangements for the deceased, you may only consult with the executor and make any requests for the deceased’s funeral, which the executor is under no obligation to fulfill.

Executors of an estate have certain obligations to beneficiaries of an estate. When an executor does not fulfill his or her obligations, beneficiaries have certain rights to force an executor to comply. This usually means getting the court involved. Executors can significantly reduce their risk by respecting beneficiaries’ reasonable expectations and rights. A beneficiary should expect the following:

• Be provided with information: It is a fundamental right of a beneficiary to ensure that an estate is administered properly according to the terms of the Will. To do so, beneficiaries must be provided with enough information to enforce their rights. This generally includes the right to receive a copy of the Will shortly following the death of the deceased, and the right of being informed about the assets of the estate within a reasonable period of time. If a Will has been probated, any person can get a copy of the Will and the estate inventory from the court. However, in order to minimize disputes, the executor should consider sending a copy of these documents directly to the beneficiaries to ensure that they are properly informed.

• Receive their entitlement in a timely way: The length of time it takes to administer an estate will depend on its nature and complexity. It is quite normal for an estate to take a year to be administered. However, a wise executor may want to keep the beneficiaries informed of any expected delays.

• Be treated fairly: Beneficiaries have a right to be treated the same way as all other similar beneficiaries. The executor should not give preferential treatment to some beneficiaries and not to others, unless the Will directs them to do so. Even if the Will gives them discretion in dealing with certain assets as they see fit, an executor should keep beneficiaries informed to minimize possible disagreements, even if the final decision is up to him or her. An unhappy beneficiary has no recourse as long as the executor is respecting the obligations set out in the Will.

• Receive an accounting: Beneficiaries are entitled to an accounting a detailed report of all income, expenses, and distributions from the estate within a reasonable amount of time. Beneficiaries are also entitled to review and approve any compensation requested by the executor. Usually beneficiaries will be asked to agree to the executor’s accounting before receiving their final share of the estate. If beneficiaries do not agree with the accounting, they can force the executor to pass the accounts to the court. This means that the executor will need to show the court everything that has gone in and out of the estate while he or she was executor. At this point, the court can also be asked to confirm the executor’s compensation.

• Request the removal of the executor: If a beneficiary believes that the executor is not acting in the best interest of the estate, the beneficiary can ask the court to have that person removed as executor. However, a court will only remove an executor if it determines that their removal is justified. That usually means that the executor will remain executor unless he or she has been in serious breach of his or her obligations. It will not remove an executor simply because the beneficiaries disagree with some of his or her decisions. An application to remove the executor is not without risks. The court may find that the legal costs relating to the application be paid by the estate, the beneficiary personally, or by the executor depending on the circumstance.

To avoid disagreements an experienced or well-advised executor will not wait until beneficiaries start asking questions; they will let them know at regular intervals how the administration of the estate is progressing. Furthermore, if a beneficiary is not receiving the information they expect from an executor, they should request it. If you are a beneficiary of an estate and have any questions during the course of its administration and you cannot get a satisfactory explanation from the executor, you would be wise to consult your lawyer in order to enforce your rights. If you are expecting the traditional reading of a will that you see on television or in the movies that is rarely how it works. In fact, there is no legal requirement that a will be read aloud to anyone. But, you may be wondering whether beneficiaries are entitled to a copy of the will. It is the personal representative (executor) who determines who will receive a copy of the will or be notified of its contents. Once the will is filed with the probate court, then it becomes public record and anyone can see it if they request a copy from the probate court’s office.

The first person to see the will is usually the executor since that is typically the person who has knowledge of where the will is being kept. The executor is the person responsible for probating the estate according to the provisions in the will. It is the executor’s responsibility to read the will and determine who the beneficiaries. There are several categories of individuals who are typically entitled to a copy of the will for various reasons. These include the beneficiaries, unnamed legal heirs, the accountant for the estate, the successor trustee if there is a revocable living trust, and tax officials. All beneficiaries named in the will are entitled to receive a copy in order to better understand the nature of their inheritance and how it will be distributed. When beneficiaries are minors, their legal guardians will receive a copy on their behalf.
In some situations, an executor or an estate planning attorney may suspect that an unnamed heir might contest the validity of the will.

In that case, they may decide it is helpful to provide a copy of the will to those heirs in order to shorten the amount of time within which those heirs can formerly file their challenge to the will. The clock starts ticking once they have notice of the provisions of the will. These heirs would include “heirs at law” which are those people who are closely related to the decedent and who would have normally inherited from the decedent had there been no will. Who these individuals are will depend on the relevant laws of each state. They always include a surviving spouse, children, and grandchildren. If an accountant is appointed for the estate, then they must be provided a copy of the will in order to understand the extent of the provisions relating to paying off estate debts. The accountant will also handle the payment of estate and income taxes and other financial transactions needed to fulfill the provisions of the will.

If you’ve been named as a beneficiary in a loved one’s Will, on top of grieving for your loss, you may have questions about the administration process. You might not know when you will receive your share of the estate, which can leave you in financial uncertainty, especially if your home or income is included in the terms of the Will. Many beneficiaries are not always sure what to do if they suspect the executor is mismanaging the estate, or simply not working fast enough.

As a beneficiary, you only have legal rights over your share of the inheritance once the estate has been distributed. You do however have a right to information before then, so you can be kept up to date with the administration of the estate The person in charge of administering the estate is called the executor . They have discretion over what information they share with beneficiaries, but its good practice to make everything as transparent as possible. They should agree with you at the start how often they’ll give you an update and stick to this throughout the administration process. Once a Grant of Probate has been issued and the administration is underway, the executor or executors, if there’s more than one must keep accounts of the estate and be ready to show these if you ask for them. If you feel the executors are mismanaging the estate, you also have the right to take formal legal action against them.

Technically, you only have the legal right to see the Will once the Grant of Probate is issued and it becomes a public document. This means if you were to ask to see the Will before then, the executors could theoretically refuse. In practice, however, this is rare you’d usually be told straightaway about any inheritance you’d been left, and if you asked to see the Will before the Grant of Probate had been issued, it’s unlikely you wouldn’t be allowed to.

Beneficiaries will most often run into problems if the executor is not progressing things as fast as they want, or isn’t being clear about what’s going on.

• Delay obtaining a Grant of Probate
• Delay administering the estate once Probate has been obtained
• Lack of information
• Failure to disclose accounts.
• Being dishonest or reckless with funds from the estate
• Selling property under market value
• Trying to buy property from the deceased’s estate for themselves
• Paying beneficiaries before settling outstanding debts.
If you’re worried about any of these circumstances, see your Lawyer immediately.

In most cases however you might expect it to be between one to two years before everything is settled. Before the estate can be distributed, the executor must settle any outstanding debts and make sure all assets are available. This could involve selling property whose value is to be split between different beneficiaries, which may take time. Complex estates, especially those involving foreign assets, can add to the delay. An executor can’t be made to distribute an estate until one year has passed from the date of death: this is called the ‘executor’s year’. Even after this date, they can’t be forced to distribute it if there’s a good reason preventing them. For example, if they’re waiting on the sale of a property. It is an all too common scenario someone is aware that a friend or relative who passed away made a provision for them in their Will, but they are completely in the dark about precisely what they are entitled to receive and when they will receive it.

Law allows a beneficiary to compel an inventory and appraisal of estate assets three months after the Will is probated. But remember, the inventory will consist only of estate or “Probate Assets.” Those are assets titled solely in the decedent’s name (as opposed to jointly with one or more other people) that do not pass by beneficiary designation. Assets that pass by beneficiary designation include IRAs, 401(k)s, annuities, life insurance and pensions. They also include bank or brokerage accounts that designate a “Pay-on-Death” or “Transfer-on-Death” beneficiary or beneficiaries. Assets passing outside of the Will are known as “Non-Probate” assets. A year after the Will has been probated; a beneficiary can demand an accounting of each transaction the Personal Representative has engaged in on behalf of the estate. Again, that accounting will relate solely to Probate Assets, not Non-Probate Assets. The accounting can be formal or informal. A formal accounting is filed with the court and subject to an “audit” process by the Surrogate (which carries a fee based on the amount of assets in the estate) and then subject to approval by a Judge. Each beneficiary has the right to object to the accounting by filing what are known as “Exceptions” to the accounting with the court. An informal accounting is not filed with the Court and serves as an alternative where all beneficiaries are willing to accept it. In extreme circumstances, a Personal Representative’s conduct may rise to the level that warrants his or her removal in that circumstance, a new Personal Representative would be appointed by the court.

Will And Probate Lawyer Free Consultation

When you need legal help with a will or probate 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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How Much Does It Cost For Estate Planning?

How Much Does It Cost For Estate Planning

The last thing anyone wants to do is plan for their death. There are a lot of important decisions you need to make decisions you shouldn’t leave to your loved ones. These include saving for and planning your funeral, appointing a power of attorney, designating beneficiaries for all your accounts, setting up your kids especially if they’re fairly young, planning your estate, and setting up your last will and testament. This last one is probably one of the most important things you’ll have to do. Drawing up a will isn’t as easy as you may imagine. Most people hear the word will and think it’s a fairly simple process.

The idea most people have is that it requires a few minutes to designate the recipients of all your worldly belongings. But that isn’t true. In fact, there are many important facets to the document you have to consider right down to how you word it. If you have a lot of assets, run a business, and have more than one child and/or grandchildren, you need to take some time to make careful decisions about what happens after you die. Doing so now will help those you leave behind in the end. Make a list of all your assets, your home, vehicles, any valuables along with all of your financial accounts such as checking and savings accounts, certificates of deposit (CDs), and life insurance policies. Then jot down all of your dependents and who inherits each asset. Also note if there are any special considerations you’d like to include in your will such as when minors inherit your assets, how accounts will be split up, or what happens to your home after you die. You can try drafting the will yourself or you can hire a lawyer to do the work for you. But even if you hire an attorney, you’ll still have to make these important decisions on your own. We’ll look at the benefits and drawbacks of both a little later in this article.

The fee for having a basic will written can be as little as $150 fairly reasonable and affordable for most people. Consider purchasing a do-it-yourself will creation kit that can be purchased online or in stores for less. These are generally templates you can fill in with your pertinent information online. If you require more complicated or additional estate planning documents, be prepared to dish out more cash. It can cost $1,000 or more in advanced situations. But this may be too generic for you, leaving you the option to hire a professional. The low end for having a lawyer draft a will is around $300, but it can easily cost $1,000 or more if your situation is more complicated. Do-it-yourself kits to create and file a legally enforceable will have gained in popularity due to the minimal cost involved. If you don’t have a lot of complicated issues about your final wishes, your finances are fairly straightforward, and you don’t have any children, this may be the most suitable option for you. Kits can be purchased for as little as $10, so they give you the option of drawing your will at your convenience without having to pay an outrageous cost. There is a lot less time involved, and you can generally make updates at your leisure without much difficulty or cost. Before you settle with one of these kits, make sure you understand everything the kit entails including the legal language. You don’t want to sign a document you don’t fully understand. Also consider whether the document is enforceable in your state, as some documents don’t coincide with guidelines in certain areas. You may be required to have witnesses or have your document notarized.

The best option is to hire a lawyer if you have a complicated situation, a lot of assets, many beneficiaries, and a lot of dependents. While the decisions of what happens to your estate after you die are yours, an attorney can guide you through the process and help you word your will properly so there are no mistakes. After all, you are paying for legal advice, so it makes sense that you get the full benefit of an error-free will.

Advantages of Estate Planning

Taking care of your family has always been the number one priority in your life, and that isn’t going to change. The best way to make sure they are taken care of after you pass is to establish an estate plan while you are still of sound mind. Here are the advantages of creating an estate plan:

• Provide for your immediate family: The estate plan will provide enough money for your surviving spouse to continue to care for the family. If both you and your spouse pass, an estate plan will name appointed guardians to care for your children.

• Ensure property goes to the right beneficiaries: Your estate plan will outline exactly where your assets are to go in the event of your death. This leaves no questions to be resolved by the courts or cause for family discord.

• Minimize the expenses and taxes: When you take care to create an estate plan, you should be able to keep the cost of transferring any property to your named beneficiaries.

• Ease the burdens of your family: It can be difficult to plan the funeral of a loved one when grieving. When working on your estate plan, you can outline your wishes for funeral arrangements and even set aside funds for them. This takes some of the burden off your family during this difficult time.
• Support a favorite cause: If you are passionate about a local cause or charitable organization, an estate plan can allow you to support them after your passing.

• Plan for any kind of incapacity: Life is unpredictable. If you should ever become mentally or physically incapacitated, an estate plan will outline your wishes regarding life and who will make medical decisions on your behalf.

• Reduce taxes that take place on your estate: By crafting an estate plan, you should be able to minimize the amount of taxes collected on your estate, which results in your beneficiaries keeping more of the money you set aside for them.

• Establish trustees over your estate: You’ll need someone to serve as the executor of your estate to make sure everything is handled properly. Your estate plan will name this person, which will save money and simplify the administration process.

• Provide for those who many need help: Do you have a child who has a disability? Or perhaps you have grandchildren who will be attending college in the future. Through your estate plan, you can set up a special trust to provide funds to support them.

• Ensure a business continues with a succession plan: If you own your own business, you’ll want to establish some kind of plan to keep it going after you pass. An estate plan will name your successor and outline what happens to your interest in the business.

As you can see, there is a lot that goes into estate planning, and none of these areas are ones you want to leave up in the air. By working with professional estate planning attorneys, you can make sure you have thought of everything. Without a will, your property may not go to who you want. Much of it can be tied up in probate for years, which means your family won’t get the assets they want and potentially need until it’s all settled. You can’t make assumptions that everything is going to go the way you want. Legal documentation is the only way to ensure your wishes are met.

Estate Planning

• Loss of control: Once an asset is in the irrevocable trust, you no longer have direct control over it. However, in the case of a husband and wife, it is possible to create separate trusts for each, thereby collectively maintaining control. There are many pitfalls with this technique, such as observance of the Reciprocal Trust Doctrine, so this strategy should only be employed with the assistance of a skilled estate planning attorney.

• Fairly Rigid terms: Irrevocable trusts are not very flexible. Once the terms are established, they can be difficult to change.

• The Three-Year Rule: If you include life insurance in an irrevocable trust and pass away within three years, the proceeds return to your estate and become taxable.

• The Five-Year Rule: If you put assets in an irrevocable trust and need Medicaid within a five-year period, you may have to repay all prior transfers to the trust by covering the costs of a nursing home privately. Only after you have repaid all gifted assets will you be eligible for Medicaid.

Because they have such strong advantages and disadvantages, the suitability of an irrevocable trust depends on a person’s individual circumstances. An experienced estate planner can help you decide if such an arrangement is right for you, or if you would be better off setting up a revocable trust instead.

Estate Planning Process

As you go through life, you’re likely to accumulate some amount of wealth, assets and even just family treasures. What will happen to all those things if you die or become incapacitated? That’s where estate planning comes in. An estate plan allows you to legally specify your wishes and how you want them carried out. A well-crafted estate plan can help avoid disputes that may arise and can keep details about your family’s financial affairs private. When you’re ready to work with a qualified attorney and financial planner to write your estate plan, here are some of the key steps you’ll go through:

• Create an inventory of what you own and what you owe: Compile a comprehensive list of your assets and debts, including account numbers and contact information, as well as names and contact information for your important advisers. Keep the summary in a secure, central location along with original copies of important documents and provide a copy of the summary for the executor of your will. This list could be a piece of paper or also a digital file kept in a secure location.

• Develop a contingency plan: An estate plan allows you to control what would happen to your property and assets if you or your spouse passed away today. It also puts a documented plan in place so that if you became incapacitated, your family could carry on your affairs without having to go through court. This includes a strategy for providing income if you were to become disabled and covering potential expenses for care giving that may be needed at some point.

• Provide for children and dependents: A primary goal for many estate plans is to protect and provide for loved ones and their future needs. Your estate plan should include provisions for any children, including naming a guardian for children under age 18 and providing for those from a previous marriage if you remarry, your assets may not automatically pass to them. It also would specifically address the care and income of children or relatives with special needs that must be planned carefully to avoid jeopardizing eligibility for government benefits.

• Protect your assets: A key component of estate planning involves protecting your assets for heirs and your charitable legacy by minimizing expenses, and covering estate taxes while still meeting your goals. If necessary, your estate plan would include specific strategies for transferring or disposing of unique assets like a family-owned business, real estate or investment property, or stock in a closely held business. Many people use permanent life insurance and trusts to protect assets while ensuring future goals can be met.

• Document your wishes: If you want your assets distributed in a certain way to meet financial or personal goals, you need to have legal documentation to ensure those wishes are followed if you die or become incapacitated. This includes designating beneficiaries for your life insurance policies, retirement accounts and other assets that are in line with your goals. It also means ensuring that titles of material assets, such as automobiles and property, are named properly. Work with an attorney to be sure you have an updated will disposing of your assets, a living will reflecting your end-of-life wishes, as well as powers of attorney for health-care and financial matters.

• Appoint fiduciaries: To execute your estate plan, you must designate someone to act on your behalf if you are unable to do so as executor of your will, trustee for your assets, legal guardian for your dependents or personal representative or power of attorney if you became incapacitated. You need to be sure your fiduciaries are aware of and agree to their appointments, and that they know where to find your original estate planning documents. Fiduciaries can be family members, personal friends or hired professionals such as bankers, attorneys or corporate trustees. Whether you are just starting out or have accumulated wealth over a lifetime, an up-to-date estate plan helps you minimize the impact of unexpected events on you and your family by preserving, protecting and managing your assets. A financial advisor can help you create a financial security plan to meet your goals, and provide tools and resources to build an estate plan that makes an impact well into the future.

Estate Planning Lawyer Free Consultation

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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Do I Need An Attorney For Estate Planning?

Do I Need An Attorney For Estate Planning

Yes, you should have one.

An estate planning attorney is a type of lawyer who, through years of mentoring, continuing legal education and experience, understands how to advise clients on getting their affairs in order to prepare for the possibility of mental disability and eventual death.

What an Estate Planning Lawyer Does

• Estate planning doesn’t begin and end with a last will and testament. An attorney specializing in this field will also draft living trusts, develop a plan to mitigate or avoid estate taxes, and work to ensure that your life’s savings and assets are safe from your beneficiaries’ creditors after your death.
• He can prepare power of attorney and health care directives, arranging for someone to take care of your affairs in the event you should ever become mentally incapacitated.

• He can help you avoid guardianship or conservatorship issues if you need someone else to look after your affairs.
What Qualities Should You Look for in Your Estate Planning Lawyer
• A general practitioner may not have the experience and specialized knowledge to assist you with your unique family and financial situations. Look for someone who devotes his practice to this area of the law.
• You should feel very comfortable sharing intimate details of your life and your concerns with him so your estate plan doesn’t fall short of your expectations and needs.
• Your estate planning attorney should be well versed in and up to date with the laws of your state. Otherwise, your estate plan could ultimately be deemed invalid by the court.

What You Should Expect to Pay for Your Estate Plan

Be prepared to pay somewhat higher legal fees to have your estate plan created, maintained, and updated by someone who specializes in this area of practice. You’re paying for the attorney’s expertise accumulated over years of working with a variety of different clients and taking a multitude of continuing legal education classes. As the old saying goes, “You get what you pay for.” Your estate might stand to lose far more money in the long run than the cost of paying a qualified attorney now. If estate taxes come due that could have been avoided, or if a contentious probate process drags out after your death, incurring even more court and legal fees, your loved ones may wish that you had simply spent the money to plan ahead instead. Then, of course, there’s peace of mind.

Reasons to Hire an Estate Planning Attorney

When considering if you need to hire an estate planning lawyer, consider this estate planning is serious business. One wrong word or one missing signature can change the entire intent of a will or trust. Aside from this, the reasons listed below should be enough to convince you to go out and find and hire a qualified estate planning attorney to draft your estate planning documents.
• Estate Lawyers Are Necessary Since State Laws Rule Estate Plans: State laws are very specific about what can and can’t be in a will, trust, or medical or financial power of attorney; who can and can’t serve as a personal representative, trustee, health care surrogate or attorney in fact; who can and can’t be a witness to a will, trust, or medical or financial power of attorney; and what formalities must be observed when signing a will, trust, or medical or financial power of attorney. For example, in Utah, a personal representative must either be related to you by blood or marriage or, if not, then a resident of the state. Time and time again I see wills of Utah residents that designate a friend or attorney from out of state as the personal representative. This non-resident, non-relatives simply can’t serve, and in fact, won’t be allowed to serve, in Utah. Working with a qualified estate planning attorney will help you to avoid this kind of simple and yet costly mistake.
• Buyer Must Beware: The old Latin saying, “Caveat Emptor,” or “Buyer Beware,” certainly applies to estate planning. If you think that you’ll be saving a few dollars by using forms found on the internet or in a do-it-yourself book to prepare your estate planning documents, then your family will be in for a rude awakening when they learn that part or all of your will, trust, or medical or financial power of attorney isn’t legally valid or won’t work as you had anticipated. Thousands of dollars will then be spent by your loved ones working with a qualified estate planning attorney after the fact to fix your mistakes.

• Estate Lawyers Can Help Sort out Complex Family or Financial Situations: Take a look at your life and your assets to see if you fit into one or more of the following categories:
 You’re in a second (or later) marriage
 You own one or more businesses
 You own real estate in more than one state
 You have a disabled family member
 You have minor children
 You have problem children
 You don’t have any children
 You want to leave some or all of your estate to charity
 You have substantial assets in 401(k)s and/or IRAs
 You were recently divorced
 You recently lost a spouse or other family member
 You have a taxable estate for federal and/or state estate tax purposes
If one or more of these situations apply to you, then you’ll need the counseling and advice of an experienced estate planning attorney to create your estate planning documents. Otherwise, it may be a probate lawyer and your state’s department of revenue and/or the IRS that will receive the largest chunk of your estate.

How to Find an Estate Planning Attorney

Searching for a lawyer who can help you put together a good estate plan may seem like a daunting task. But with a little help, you should be able to find several qualified lawyers to choose from.

Your financial advisor should be a great source of information for you, including finding a qualified estate planning attorney in your area. Many advisors view estate planning as an essential part of their clients’ overall financial goals, and so these advisors have one or more estate lawyers that they’ll refer their clients to depending on each client’s individual needs. If your advisor hasn’t approached the subject of estate planning with you, be sure to bring it up with your advisor. Also, go ahead and ask your advisor who did his or her own personal estate plan the answer may be just who you’re looking for.

Many estate lawyers turn to accountants for help with estate, trust, and income tax issues. Thus, chances are your accountant can recommend one or more estate planning attorneys in your area to put together your estate plan. Likewise, many accountants seek out estate planning lawyers for their clients since accountants have direct access to their clients’ financial information and family situations which warrant the need for an estate plan. And go ahead and ask your accountant who did his or her own personal estate plan – the answer may be just who you’re looking for.

Chances are a lawyer you’ve worked with in setting up your business, buying your home, or reviewing a contract will know one or more qualified estate planning attorneys in your area. And lawyers are always quite happy to refer their clients to other lawyers who don’t practice in their area of expertise because this will promote referrals back the other way. Aside from this, go ahead and ask your lawyer who his or her own personal estate planned since many non-estate lawyers won’t even attempt to create their own estate plan.

Each state has a bar association and lawyers located in a certain city or county may also have their own bar associations. Many of these associations maintain a list of their members and their practice areas, and some even offer certified referral services to the public. Check your local telephone directory or online for a referral service in your area.

Many lawyers, including estate lawyers, advertise through various means, including in print, on the radio or on TV. All states regulate attorney advertising, so only ads that pass the strict scrutiny of the state bar association are allowed. This ensures that the attorney isn’t making false claims or promising unattainable results.

This may not work for you, particularly if you live in a large city, but in smaller communities, the court clerks know all of the local attorneys and which ones are easy to work with and which ones the judges like. Practicing in a small town can allow you to have a good working relationship with the court clerks and judges; it’s easy to earn referrals this way and is considered a high compliment. This list is really only a starting point and doesn’t even attempt to address the vast amount of information you can find about professionals, including estate lawyers, on the internet. Sometimes, however, too much information is just that, and so you need to stick with some basic methods.

How to Choose the Best Lawyer

Choosing legal services is like choosing any other product or service: the wise consumer conducts thorough research before making an informed decision. Once you secure several lawyer referrals with expertise in the appropriate practice area, you should carefully research each candidate (for tips on how to find a good lawyer, see How to Find a Lawyer). Below are five steps to choosing the best lawyer for your legal needs.
Conduct Candidate Interviews
One of the best ways to assess a lawyer’s legal ability is by interviewing them. Most attorneys will provide an initial consultation (usually an hour or less) at no charge. Below are a few questions to consider:
• What experience does the lawyer have in your type of legal matter?
• How long have they been in practice?
• What is their track record of success?
• What percentage of their caseload is dedicated to handling your type of legal problem?
• Do they have any special skills or certifications?
• What are their fees and how are they structured?
• Do they carry malpractice insurance? If so, how much?
• Who else would be working on your case and what are their rates?
• Do they outsource any key legal tasks for functions?
• What additional costs may be involved in addition to lawyer fees (postage, filing fees, copy fees, etc.)?
• How often will you be billed?
• Can they provide references from other clients?
• Do they have a written fee agreement or representation agreement?
• How will they inform you of developments in your case?
Keep in mind that a higher fee does not necessarily equate with a more qualified attorney. Consequently, a rock bottom fee may signal problems, inexperience, or incompetence.

After meeting with the lawyer, you should ask yourself the following questions:
• Are the lawyer’s experience and background compatible with your legal needs?
• Did they provide prompt and courteous responses to your questions?
• Are they someone with whom you would be comfortable working with?
• Are you confident they possess the skills and experience to handle your case?
• Are you comfortable with the fees and how they are structured?
• Are you comfortable with the terms of the fee agreement and/or representation agreement?

Lawyers know the skill and reputation of other lawyers. Attorneys may be able to provide information about a fellow lawyer that you may not find in a book or online, such as information about a lawyer’s ethics, competence level, demeanor, practice habits, and reputation.

Before hiring any lawyer, contact the lawyer disciplinary agency in your state to confirm that they are in good standing as a member of the bar. For an online listing of each state’s lawyer disciplinary agency, review this directory of lawyer disciplinary agencies. You should always check references, especially if you located the attorney through the Internet.

Estate Planning Attorney Free Consultation

When you need legal help with an estate plan – whether that is a will, trust, power of attorney or health care directive, 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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What Documents Are Needed For Estate Planning?

What Documents Are Needed For Estate Planning

Estate planning is the preparation of tasks that serve to manage an individual’s asset base in the event of their incapacitation or death. The planning includes the bequest of assets to heirs and the settlement of estate taxes. Most estate plans are set up with the help of an attorney experienced in estate law.

Estate planning is the systematic approach to organizing your personal and financial affairs in order to deal with the possibility of mental incapacity and certain death. Depending on your current family and financial situations, your foundational estate plan will include four or five essential legal estate planning documents. Aside from these essential documents, the laws of your state may dictate the creation of other estate planning documents. Your estate planning attorney will be able to assist you with preparing all of the estate planning documents that you will need for your situation.

Will Based Estate Planning

If your current family and financial situations do not warrant the need for a revocable living trust, then your foundational estate plan will include the following four important legal documents:
• Last Will and Testament
• Health Care Directive
• Revocable Living Trust
• Durable Power of Attorney

Trust-Based Estate Planning

If your current family or financial situations warrant the need for a more sophisticated estate plan, then your foundational estate plan will include the following five important legal documents:
• Pour Over Will
• Revocable Living Trust
• Advance Medical Directive
• Living Will
• Financial Power of Attorney

Last Will and Testament or Pour Over Will

If you have a will-based estate plan, then your Last Will and Testament will contain a detailed list of instructions as to how your property should be distributed after you die. If you have minor children, it will also contain provisions for designating a guardian for your children. If you have a trust based estate plan, then your last will and testament will only be used as a safety net to catch assets that you did not transfer into your trust prior to your death and put them in there after your death. This type of will is referred to as a “Pour Over Will’ and contains minimal instructions since your revocable trust is the main document governing your estate plan.

Revocable Living Trust

A Revocable Living Trust contains a detailed set of instructions covering three important periods of your life:
• What happens while you are alive and well?
• What happens if you become mentally incapacitated?
• What happens after your death?
In addition, assets held in the name of your revocable living trust at the time of your death will avoid probate.

Advance Medical Directive

An Advance Medical Directive, also called a ‘Medical Power of Attorney’ or ‘Designation of Health Care Surrogate’, allows you to designate a health care agent to make medical decisions for you if, for any reason, you are unable to make them for yourself. It can also be used to designate someone to serve as your guardian or conservator in the event a court determines that you have become mentally incapacitated.

Living Will

A living will contains a written set of instructions to your physician as to whether or not you want to receive life-sustaining procedures if you have been diagnosed with a terminal condition, end-stage condition, or are in a persistent vegetative state. It also gives guidelines for your family members to follow if you become terminally ill.

Financial Power of Attorney

A financial power of attorney allows you to delegate to the person of your choice the ability to manage assets that are titled in your individual name, including retirement plans, and assets titled in joint names as tenants in common. It can also be used to transfer assets into your revocable living trust if you become mentally incapacitated before the trust has been fully funded.
Financial powers of attorney come in two forms:
• A Durable Power of Attorney, which goes into effect as soon as you sign it.
• A Springing Power of Attorney, which only goes into effect after you have been declared mentally incapacitated.
Yet a well-planned estate is a wonderful legacy to leave your heirs. Even with modest amounts of money at stake, it’s important for parents to create (and maintain) a set of shared documents, account numbers, and vital contacts.

Estate Planning Documents

Parents should complete the following legal paperwork.
• Will: A legal document that ensures that your assets are passed to your designated beneficiaries, in accordance with your wishes. In the drafting process, you’ll name an executor, who is the person or institution that oversees the distribution of your assets. If you have minor children, you need to name a guardian for them.

• Power of attorney: Allows you to appoint someone to act as your agent in a variety of circumstances, like withdrawing money from a bank, responding to a tax inquiry or making a trade.

• Health care proxy: Allows you to appoint someone to make health care decisions on your behalf if you lose the ability to do so.

• Trusts (if applicable): Depending on your family needs and tax situations, you may have either revocable (changeable) or irrevocable (not-changeable) trusts. One factor is the size of your estate: For 2016, the first $5.45 million of an estate is exempt from federal estate taxes. If an estate is above the threshold (or twice that for married couples), a revocable trust may be suitable.

• “DNR” order (if applicable): You may need to complete a “do not resuscitate” order each time you enter a hospital or nursing home.

Other Documents

Finally, there are several other pieces of paperwork that, if applicable, can be quite helpful to heirs.
• Previous three year’s tax returns
• Housing, land and cemetery deeds
• Mortgage accounts
• Proof of loans made
• Vehicle title
• Partnership and corporate operating agreements
• Marriage license and/or divorce papers, if applicable
• Military discharge information
• Important contacts: Names and current addresses for all people named in the legal documents, as well as the contact information for the estate attorney and CPA who will be handling the estate.
Most of us know we should include estate planning as part of our financial planning task list, but it’s easy to procrastinate, especially if you don’t know what documents best serve your individual needs. Estate planning doesn’t have to be difficult. Once you understand the different estate planning documents and how they work, you’ll be able to weigh your options and choose what’s best for you and your family.
• Last Will and Testament: A last will, however intimidating it might sound, is nothing more than a written legal document that states how you’d like your property and assets distributed after your death, whether it’s to charity, family and friends, or even pets. It also allows you to designate an executor to ensure your specifications are carried out and allows you to name guardian(s) for your minor children.
• Living Will: Sometimes called a health care proxy, a living will ensures that your wishes regarding medical care are followed in the event that you become terminally ill and need to be on a life support system. When you create a living will you can also create a health care power of attorney, which allows you to designate a health care agent to carry out your wishes in your living will.

• Financial Power of Attorney: In addition to your last will and testament, another important document you should be aware of is a financial power of attorney. A financial power of attorney allows you to designate someone to manage the affairs of your estate, including financial decisions, if you are unable to manage them yourself.
• Living Trust: Many people set up what’s called a living trust. One advantage of a living trust is that it enables your estate to avoid probate court. This is a significant advantage because the probate process can last as long as three years and cost as much as 10% of your estate’s value. Avoiding probate court with a living trust also ensures your privacy because probate documents are open to the public.

Reasons You Need an Estate Plan

• Avoiding Probate: Avoiding probate is by far the most common reason why people seek out the advice of an estate planning attorney. While many have never even dealt with probate, they still know one thing they want to avoid it at all costs. This stems from probate horror stories covered by the media or told by neighbors, friends or business associates. Suffice it to say that for the vast majority of people, avoiding probate is a very good reason for creating an estate plan and can be easily achieved.
• Reducing Estate Taxes: The significant loss of one’s estate to the payment of state and/or federal estate taxes or state inheritance taxes is a great motivator for many people to put an estate plan together. Through the most basic planning, married couples can reduce or even possibly eliminate estate taxes altogether by setting up AB Trusts or ABC Trusts as part of their wills or revocable living trusts. In addition, a variety of advanced estate planning techniques can be used by both married couples and individuals to make the estate or inheritance tax bill less burdensome or completely go away.
• Avoiding a Mess: Many clients seek the advice of an estate planning attorney after personally experiencing, or seeing a close friend or business associate experience, a significant waste of time and money due to a loved one’s failure to make an estate plan. Choosing someone to be in charge if you become mentally incapacitated and after you die and deciding who will get what, when they will get it, and how they will get it after you’re gone will go a long way towards avoiding family fights and costly probate court proceedings.
• Protecting Beneficiaries: There are generally two main reasons why people put together an estate plan in order to protect their beneficiaries:
(a) Protecting minor beneficiaries, and/or
(b) Protecting adult beneficiaries from bad decisions, outside influences, creditor problems and divorcing spouses. If the beneficiary is a minor, all 50 states have laws that require a guardian or conservator to be appointed to oversee the minor’s needs and finances until the minor becomes a legal adult (at age 18 or 21, depending upon the laws of the state where the minor lives). You can prevent family discord and costly legal expenses by taking the time to designate a guardian and trustee for your minor beneficiaries. Or, if the beneficiary is already an adult but is bad at managing money or has an overbearing spouse or partner who you fear will squander the beneficiary’s inheritance or take it in a divorce, then you can create an estate plan that will protect the beneficiary from their own bad decisions as well as those of others.
• Protecting Assets: Lately, asset protection planning has become a very important reason why many people, including those who already have an estate plan, are meeting with their estate planning attorney. Once you know or even just suspect that a lawsuit is on the horizon, it’s too late to put a plan in place to protect your assets. Instead, you need to start with a sound financial plan and couple that with a comprehensive estate plan that will, in turn, protect your assets for the benefit of both you during your lifetime and your beneficiaries after your death. You can also provide asset protection for your spouse through the use of AB Trusts or ABC Trusts and your other beneficiaries through the use of lifetime trusts. This can also include electronic assets. One of the key reasons many people make an estate plan is to transfer assets outside of probate. Probate is a process in which estates are settled. After almost any death, assets have to pass through probate unless the deceased had a very small estate or unless the deceased made plans to transfer assets outside of probate. When assets are passed through probate, the executor of the estate or a personal representative appointed by the court needs to file lots of paperwork with the court. An accounting of estate assets needs to be made. An opportunity is given for creditors to make claims. All potential heirs or beneficiaries have to be notified. The executor has to keep careful accounting of estate assets. The will needs to be presented for probate, and there’s an opportunity for it to be contested. The entire probate process can take months to complete and can lead to costly legal fees. And because it happens in court, court records are created that can become public record. Plainly, there are many reasons to avoid probate at all cost. That means you can’t simply transfer assets through a will. You’ll have to use other tools, such as joint ownership, pay-on-death accounts, and living trusts that allow assets to be passed through trust administration.

Estate Planning Lawyer Free Consultation

When you need legal help with an 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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How Do You Find Out If You Are A Beneficiary Of A Will?

How Do You Find Out If You Are A Beneficiary Of A Will

Beneficiaries under a will have certain rights and protections under the law. The grant of probate or administration provides some protection to beneficiaries or next of kin. Subject to the family provision sections of the Succession of Family Provision Orders, they can be sure that they are the only people who will receive the property of the deceased person. If someone disputes the claim by producing another will, for example, the only way that person can receive any of the estate is to apply to the court to revoke the grant of probate (or letters of administration). If the deceased left gifts of money, assets may have to be sold to obtain the money. If the executor does not act diligently, the beneficiaries may complain to the Supreme Court. This is the only right a beneficiary has before distribution.

A beneficiary does not own the property until the executor distributes the estate. Before distribution, the executor is regarded as the owner of the assets in so far as the executor holds the estate in trust for the beneficiaries. Until the estate is distributed, surviving members of the family can sometimes be left without any access to family funds. This could happen where all the family assets have been in the deceased’s name. This causes a particular difficulty if the major beneficiary is a spouse who has no other source of income. (The same difficulty will arise if the deceased did not leave a will.) In such cases, the spouse should immediately contact Centre link to check their eligibility for a pension or allowance. Another option may be to seek a loan, using the estate as security.

Legal actions taken by or against a person may (with some exceptions) continue after their death (Law Reform (Miscellaneous Provisions). Unresolved legal actions will pass to the estate. If the estate is sued and loses the case, the beneficiaries could be left with nothing. If the value of the estate is not sufficient to pay off debts, the debts will die with the person, unless they were held jointly with someone (for example a mortgage on a property), or guaranteed by someone else. In these situations, the debts will automatically pass to the surviving co-owner or guarantor. Funeral expenses must be paid before any assets of the deceased’s estate can be distributed to beneficiaries. The person who orders the funeral is responsible for paying the account but is entitled to reimbursement from the estate ahead of other creditors. During a person’s lifetime, her will is private; she determines who views the document. After she dies, the will becomes public. The executor files the document with the probate court and notifies all beneficiaries. At that point, anyone may inspect the will. To determine whether you are a beneficiary in a family member’s will, review the will at the courthouse or contact the executor.

Review the Will

• Locate the court with probate jurisdiction over your relative’s will. In most cases, this is the court in the county in which she lived at the end of her lifetime, information you can get from the obituary or death certificate. Telephone the probate court in that county and ask whether the probate is pending there. If it is not, call probate courts in other counties in which the testator kept a residence.
• Visit the probate court and ask to see your relative’s probate file. In some countries, one office handles all civil court filing including probate, while other countries maintain a family law section to manage probate files. Give the clerk identifying information like your relative’s name and date of death and if possible the probate number.

• Review the probate file. Look in the early filings for a copy of the last will and testament, which is often appended to the petition for probate. Either read the will to see if you are a beneficiary, or ask the clerk to make a copy of the will to review later. Expect to pay a small copy fee.
Contact Executor
• Write or call the will executor, if it is not convenient to visit the probate court. The executor is the person appointed by the court to administer the will through probate. Ask family members for the name and address or phone number of the executor.
• Call the probate court to obtain the name and phone number of the executor, if you cannot obtain it from family members.
• Ask the executor of the will whether you are a beneficiary in your relative’s will. Ask for a copy of the will so you can verify the information he provided.

Many people establish a revocable living trust, which governs all the assets that are titled in the trust. For example, you could title bank accounts, investment accounts, and real estate in the trust. You are the trustee and control the assets while alive and healthy. The trust document names a successor trustee so if you become incapacitated or die, the successor trustee can easily take over without a lot of administrative hassle. It can take years to settle a decedent’s estate through probate, and the executor usually can’t transfer any of the decedent’s assets to his beneficiaries until she has addressed and resolved many other issues. This means that if you intend that your spouse should have access to your checking account after your death, she can’t access the money unless you title the account in a way that avoids probate. Otherwise, it belongs to your estate until your executor settles and closes it, and that could be a long time.

Types of Beneficiaries

Technically, a beneficiary is anyone or any entity who receives property from you after your death. This commonly occurs when property conveys through a last will and testament. You might leave all your property to a group of individuals, such as your children, or you might leave specified items to each person. They’re all your beneficiaries under the terms of your will. Life insurance policies and retirement accounts also have beneficiaries. You can name an individual, such as your spouse, or you can name your estate as your beneficiary in your contracts with these companies and financial institutions. They’ll receive these assets when you die.
A transfer-on-death account also has a beneficiary, because it transfers to someone when you die. A transfer-on-death account is one set up by arrangement with your banking institution to pay the balance to someone named by you at the time of your death. If you want to leave your spouse your checking account, you can either bequeath it to her in your will, or you can name her as the beneficiary of your transfer-on-death account. Another way of transferring such a bank account is to use the word “or” when naming the account owners.

The greatest difference between a will beneficiary and a transfer-on-death beneficiary is that transfer-on-death beneficiaries can reach the asset immediately when you die. Transfer-on-death accounts do not have to pass through probate. They’re not part of your probate estate, because they don’t require the probate process to legally transfer title or ownership. If you bequeath the account in your will, your beneficiary can’t access the money until your executor settles your estate and closes probate. Worse, if you leave more debts than assets, your beneficiary may never see the money at all. Your executor must first use all the funds that are part of your probate estate to satisfy your creditors. Your beneficiary receives whatever money remains, if any. By law, contracts supersede the terms of your will. Therefore, the beneficiary of your transfer-on-death account receives that money, even if you state in your will that you’re leaving the account to someone else. The same holds true for all your beneficiaries by contract. If you name your spouse as the beneficiary of your life insurance policy, but state in your will that your son receives the death benefits from that policy, your spouse receives the proceeds, regardless of what your will says.

Beneficiary as an Executor

People often ask whether an Executor can be one of the Beneficiaries named in the Will. The answer is yes, it’s perfectly normal (and perfectly legal) for your Executors and Beneficiaries to be the same people. In fact, this is a common approach, as it’s a good idea to ask someone you know and trust to be an Executor. It’s therefore very likely that you will want to name at least one of your Beneficiaries, and more often than not this will be your main Beneficiary. On the other hand, it might be that your Executor is not named as a Beneficiary. One example might be that you want your children to inherit everything, but you would like your extremely competent friend to act as an independent Executor. Again, this is acceptable. What a Beneficiary should not do, however, is act as the witness to your Will nor should the Beneficiary’s spouse (or civil partner). Whilst this does not invalidate your Will, it means that the witness will no longer be entitled to receive their inheritance anymore. You should to sign the Will in front of two independent witnesses. These witnesses will then need to sign the Will (witness it) in front of you. Wherever you are on your path towards financial independence, it’s important to think about what would happen to your financial accounts if you unexpectedly passed away. It seems like a morbid thought, but planning for the well-being of your family is essential. Even if you don’t yet have a spouse or children, thinking ahead financially is still important. It could smooth the way for any friends or extended family members who will deal with your affairs, should you die. Obviously, this process involves creating the proper wills and trusts. But one simpler step could help your heirs avoid some problems: designating beneficiaries.

Even if all of your financial assets are properly distributed in your will, your heirs may get tied up in probate dealing with specific financial accounts unless you designate beneficiaries. The good thing is that you can easily add beneficiaries to most accounts, by-passing the harrowing (and potentially expensive) probate process. The beneficiaries designated on your account will only need some basic paperwork to receive money left in that account following your death.

Changing the Beneficiaries

One thing to keep in mind is that you’ll need to keep your beneficiaries up to date. Any major life event, such as a marriage or divorce, or the birth or death of a child, means you need to look over your account beneficiaries to make sure they’re still accurate. Also be sure that your account beneficiaries are listed in the appropriate order. This is important if you, for instance, want to account to pass first to your spouse but then to your child if your spouse has also passed away. When you’re changing the beneficiaries on your accounts, be sure to also change those beneficiaries in your will so that they match. Mismatches between your will and your account beneficiaries can create major hang-ups for your heirs. Whenever you update one, double check the other to ensure that it’s correct.

Beneficiaries usually want to know how much money they are going to receive or be able to identify their interest in an estate. In some cases, they may want information in relation to the overall assets and liabilities of the estate. Most of these enquiries arise from a concern about the manner in which an estate is being administered and uncooperative or secretive behavior. It is natural human nature to be inquisitive and/or mistrustful when information is withheld from us! Common complaints include:

• The beneficiary has not been provided with a copy of the Will and does not know what they are entitled to; and

• The beneficiary is not being provided with information in relation to the asset and liability position of the estate and is being kept in the dark when it comes to information in relation to the estate and its administration.

Executor’s fiduciary obligation to beneficiaries

When entering into any discussion about the rights of beneficiaries in estates, a useful starting point is the nature of the relationship between beneficiaries and executors. An executor stands in a fiduciary relationship to all beneficiaries of the estate. Fiduciary simply means a relationship of trust. This relationship is central to the rights of beneficiaries and the obligations of executors in estates. The executor has been entrusted with the assets of the estate and the power to administer the estate for the benefit of the beneficiaries of the estate. The executor must therefore discharge his or her duties with due care and loyalty to the beneficiaries.

Further rights of beneficiaries

Beneficiaries have further rights in estates including:
• The right to be informed of the expected date of distribution and any delay that may be occasioned;
• Where the beneficiaries are due to receive a legacy, to receive that legacy within 12 months of the deceased’s death or if paid outside that period, to be paid their legacy together with interest as prescribed by the legislation; and
• To be advised of any litigation against the estate that may affect their entitlement under the Will or intestacy.

Beneficiary Of A Will Lawyer Free Consultation

When you need to find out if you are a beneficiary of a will, or if you need to plan an estate or file for probate, 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
itemprop=”addressLocality”>West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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Making a Will FAQs

Making a Will FAQs

Making a will is a part of Estate Planning. In this article, we’ll outline the frequently asked questions about wills. Hope you enjoy!

What is the purpose of preparing a will?

A will is a legally binding document that identifies who should inherit a person’s property after they die. Recipients often include a spouse, children, grandchildren or a charitable organization. Many wills also contain a provision that names a guardian to care for minor children. A person that makes a will is called a testator.

What happens to my property and my children if I die without preparing a will?

If a person dies without a will or another legal distribution device, a state’s laws of intestate succession govern inheritance rights. Typically, a spouse (or in some states a domestic partner) and children are first in line to inherit a decedent’s property. If the deceased did not have a spouse or children, close relatives like parents, siblings, and grandparents will inherit the property. If the decedent has no relatives that qualify under a state’s intestate succession laws, the state receives the property.

If a parent of minor children dies without a will and the other parent is unable to provide care, the state determines who will become the guardian of the children and the property they inherit.

Do I need a lawyer to create a valid will?

No. State laws do not require the assistance of a lawyer when preparing a will. Because most wills only require instructions for the distribution of property and the naming of a guardian for minor children, most people can create a simple will by using software, ready-made forms or instructions from a book.

Can I make a handwritten will?

It depends on whether a state’s law recognizes a handwritten will. In about half of the states, a person may create a handwritten will, also called a “holographic” will. Unlike typed and computer-printed wills, witnesses are unnecessary for holographic wills. Some states require that the testator handwrite the entire holographic will, including the provisions, the date, and the signature. Other states are more lenient — the testator may use a fill-in-the-blank document if it contains handwritten portions, a signature, and a date.

Handwritten wills, however, may create complications. Many probate courts are hesitant to recognize the validity of these wills since they are difficult to verify.

How do I make a will valid?

When preparing a will, most states require the following elements:

  • The testator is at least 18 years old and of sound mind;
  • The inclusion of a statement that the document is the testator’s will;
  • The will is typed or computer-printed, except in the case of a handwritten will;
  • The will must have at least one provision that disposes of property or a provision that appoints a guardian for minor children;
  • The appointment of an executor; and
  • The testator and at least two witnesses signed the will.

The testator should adhere to the following guidelines when signing a will and selecting witnesses:

  • The testator must sign and date the end of a typed or computer-printed will in ink;
  • The signature should match the name that appears in the will;
  • The witnesses must see the testator sign the will;
  • The witnesses must also sign the will;
  • The witnesses should be at least 18 years old; and
  • The witnesses must not be beneficiaries in the will.

It is unnecessary to have a will notarized; however, doing so may simplify probate proceedings.

Can I name a guardian for my children in my will?

Yes. A will can name a “personal guardian” to care for minor children if both parents are deceased or if the surviving parent is unable to care for the children. The personal guardian will have legal guardianship over the minor children until they reach the age of 18.

Can I disinherit my spouse?

In community property states, a spouse is legally entitled to half of the property acquired or earned during the marriage. While a married person may leave their half of the community property to someone other than their spouse, they may not dispose of the spouse’s share of the community property.

In Utah, you really can’t completely disinherit you spouse, says local Utah Probate Lawyer. This is because the surviving spouse can make what is called an elective share and they will get at least the first $75,000 of the estate, plus half of the remaining estate, if they are a second or third spouse. Sometimes, they can get it all. You should call and talk to us if you truly want to disinherit your spouse.

In states where common law governs inheritance laws, a person may choose to disinherit a spouse through a will. However, common law states protect the surviving spouse from complete disinheritance by granting the right of the spouse to claim some portion of the deceased spouse’s property by going to court.

How do I revise my will?

A testator can change a will by preparing a new will or by adding an addition called a codicil. When changes are substantive, revoking a will and starting over may be easier. An express statement in the new will of the revocation of all prior wills legally revokes a will. Minor changes, such as the addition of a new provision or the removal of a beneficiary, are appropriate changes for a codicil.

Free Consultation with a Utah Will Lawyer

If you are here, you should get your free consultation, so call Ascent Law at (801) 676-5506. We want to help you with your will.

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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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

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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

4.9 stars – based on 67 reviews


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