Utah Estate Probate Forms

Utah Estate Probate Forms

When a person dies, their assets are distributed in the probate process. Probate is a general term for the entire process of administration of estates of deceased persons, including those without wills, with court supervision. If a person dies with a will, a petition to probate the will is filed with the probate court in the county where the deceased resided at the time of death, asking for letters testamentary to be issued, giving the executor authority to handle the estate affairs. If a person dies with a valid will, an executor is named to handle the distribution of the estate. If the person dies without a valid will, the court appoints an administrator to distribute the decedent’s assets according to the state’s laws of intestacy. The court will issue letters of administration, also called letters testamentary, to the administrator, giving the authority to handle the affairs of the deceased. An heirship affidavit may also be used to conduct estate affairs when a small estate is involved. In cases where the decedent didn’t own property valued at more than a certain amount, which varies by state, the estate may go through a small estate administration process, rather than the formal probate process.

Duties of an Executor or Personal Representative

The executor’s obligations are generally to:
• Safeguard the property and assets of the estate;
• Inventory (or make a list of) the property;
• Submit accounts or inventories to the court as required (these could be waived);
• Pay the debts and expenses of the deceased (such as funeral and burial expenses, medical expenses, and credit card bills);
• Pay any federal or state death taxes, if any; and
• Distribute the estate to those named in the will or, if no will exists, to your heirs as designated by statute.

How Can Probate Be Avoided?

All property of a decedent may not be subject to the probate process. Some assets, such as insurance policies or cd’s may name a beneficiary or pass automatically to a surviving joint owner outside the probate estate of the will. Assets held in trust, or in an account or policy with an insurer or financial institution with a named beneficiary, typically pass outside the probate process. Such assets go to the named beneficiary outside the probate process. If it is a survivorship account, or transfer on death account, it passes outside the probate process. Property held in trust is distributed according to the terms of the trust. It is possible to write a “pourover” clause in a will, so that property “pours over” into the trust, which is exempted from probate. The involvement of the court to transfer such property is not required. A bank account or motor vehicle title may also specify a death beneficiary and thus be exempt from the probate process.

Claiming Property with a Simple (Small Estate) Affidavit

Utah has a procedure that allows inheritors to skip probate altogether when the value of all the assets left behind is less than a certain amount. All an inheritor has to do is prepare a short document, stating that he or she is entitled to a certain asset. This document, signed under oath, is called an affidavit. When the person or institution holding the property — for example, a bank where the deceased person had an account gets the affidavit and a copy of the death certificate, it releases the asset. The out-of-court affidavit procedure is available in Utah if the value of the entire estate subject to probate, less liens and encumbrances, is $100,000 or less. An affidavit may also be used to transfer up to four boats, motor vehicles, trailers or semi-trailers if value of estate subject to probate, excluding the value of the vehicles, is $100,000 or less. There is a 30-day waiting period.

Simplified Probate Procedures

Utah has a simplified probate process for small estates. To use it, an executor files a written request with the local probate court asking to use the simplified procedure. The court may authorize the executor to distribute the assets without having to jump through the hoops of regular probate. You can use the simplified small estate process in Utah if the value of the entire estate, less liens and encumbrances, does not exceed the homestead allowance, exempt property, and family allowance, costs of administration, reasonable funeral expenses, and reasonable medical expenses of the last illness. The executor files a sworn statement that says the estate assets are less than the value described above, describes the estate assets, declares the executor has distributed assets to the inheritors, and sent the inheritors and known creditors a closing statement and provided them with a closing statement.

Probate Litigation

• Personal representatives: Estate executors may be sued for allegedly improper notification, obfuscation or misuse of estate funds, failing to properly preserve assets during probate, failing to observe the testator’s wishes or otherwise failing to comply with state probate law.
• Beneficiaries: Beneficiaries may contest the will’s validity, their share of the estate, the estate’s administration or the inclusion of other beneficiaries. Challenging a will can be an all-or-nothing process, however: it is not uncommon or a will to stipulate that beneficiaries who contest and lose their argument forego their right to an inheritance.
• Creditors: As in personal bankruptcies, Fillmore Spencer LLC represents the rights of creditors to claim what is owed them from an estate. A creditor has three months from the executor’s first publication of the Announcement of Appointment and Notice to Creditors to make a claim. If the executor disallows their claim, the creditor may appeal by filing a petition with the probate court.
• Trustee: In the case of revocable trusts and testamentary trusts, where trust assets are subject to probate or estate taxation, trustees may be involved in probate litigation. As with non-probate trustees, Fillmore Spencer LLC handles litigation alleging failure to observe the trust’s mission and the intentions of the trust’s grantor, trust mismanagement and other breaches of fiduciary responsibility.

Avoiding probate and estate taxes

There are several ways property can avoid probate, including:
• Assets owned as joint tenants with rights of survivorship: All property left to a surviving spouse avoids probate and federal estate tax. This includes assets such as a bank account or a home or other real estate that are owned as joint tenants with rights of survivorship.
• Pay-on-death bank accounts or transfer-on-death stock brokerage accounts: The proceeds from these accounts go to the beneficiary you name probate free, as long as that doesn’t conflict with other components of your estate plan.
• Insurance proceeds, including life insurance and accidental death benefits: These proceeds bypass probate but will be subject to estate taxation unless the insurance policy is held by an irrevocable trust.
• Property held by a trustee of a living trust: If the living trust is revocable, its assets may bypass probate and go directly to beneficiaries, but those assets will be subject to estate taxation. If the living trust is irrevocable, then the assets are not part of the estate and may bypass not only probate but also estate taxation.
• Property held by a charitable, special-needs or other irrevocable trust: As with the irrevocable living trust, property that belongs to an irrevocable charitable or special-needs trust is free from probate and estate taxation.

• Death benefits of annuities, pension plans and retirement accounts: Money inherited from company pensions and 401(k)s, and even individual retirement accounts (IRAs), is not subject to probate, but is subject to estate tax consideration. Because the IRA has been funded with pre-tax dollars, IRA beneficiaries are also liable for income taxes due when the funds are withdrawn.

What are some of the most common forms used for Probate?

The most popular forms or packages for probate are the state specific probate packages, Disclaimer of Right to Inherit or Inheritance – All Property from Estate or Trust, Affidavit of Domicile, Sample Letter for Initiate Probate Proceedings regarding Estate – Renunciation of Executorship, and Sample Letter for Initial Probate Proceedings – Request to Execute Documents.
Some probate legal forms include:

• Affidavit of Subscribing Witnesses for Probate of Will/Codicil to Will
• Affidavit for Probate of Will Witness Not Available
• Affidavit for Probate of Holographic Will/Holographic Codicil
• Application for Probate and Petition for Summary Administration
• Certificate of Probate
• Probate Cover Sheet
• Demand for Notice of Proceedings for Probate of Will or Appointment of Personal Representative
• Application for Informal Probate of Will and Appointment of Personal Representative
• Statement of Informal Probate of Will and Informal Appointment of Personal Representative
• Summons
• Petition for Appointment of Probate Conservator
• Order Appointing Probate Conservator
• Petition and Order for Appointment of Guardian Ad Litem Under the Probate Code
• Letter – Complaint to Probate Will and Appoint Executrix and Issuance of Letters Testamentary
• Letter – Instructions to Execute Complaint to Probate Will
• Letter – Withdrawal of Probated Claim
• Letter – Estate Probate Proceedings
• Letter – Initiate Probate Proceedings for Estate (Complaint to Probate Will)
• Letter – Initiate Probate Proceedings for Estate (Request to Execute Waiver and Consent)
• Letter – Initial Probate Proceedings (Request to Execute Documents)
• Letter – Complaint to Probate Will and Appoint Co-Executrixes and Issuance of Letters Testamentary
• Letter – Complaint to Probate Will and Appoint Executrix and Issuance of Letters Testamentary
• Letter – Notification to Creditor to Probate and Register Claim
• Letter – Initiate Probate Proceedings Regarding Estate (Renunciation of Executorship)
• Letter – Payment of Probated Claim
• Letter – Claim Probated
• Probate of Will Administration with the Will Attached
• Probate of Will with-without Sureties
• Notice of Final Report – Independent Administration Probate
• Notice to Interested Persons of Commencement of Probate Proceeding and Hearing on Appointment of an Administrator
• Notice to Interested Persons of Commencement of Probate Proceeding and Hearing on Allowance of a Foreign Will (Testate)
• Notice to Interested Persons of Commencement of Probate Proceeding and Hearing on Allowance of Will (Testate)
• Petition for Probate of Will and Appointment of Personal Representative
• Power of Attorney – Health Care – Living Wills
• Statutory Form of Advance Health Care Directive
• Petition for Probate of Self Proving Will and Waiver
• Creditors Claim in Probate
• Consent by Personal Rep to Extend Claimants Time to Commence Proceedings on Claim in Probate
• Notice of Allowance or Disallowance of Claim in Probate
• Petition for Family Allowance in Probate & Approval by Personal Representative
• Instrument of Distribution from Probate Estate – Per. Rep.
• Petition for Supervised Administration in Probate
• Objection to Probate of Will
• Order of Probate of Will
• Petition and Order for Appointment of Guardian Ad Litem Under the Probate Code
• Order Appointing Guardian Ad Litem – Probate

What Happens During the Probate Process?

Each state has specific laws in place to determine what’s required to probate an estate. These laws are included in the estate’s “probate codes,” as well as laws for “intestate succession,” when someone dies without a will. In cases where there is no will, probate is still required to pay the decedent’s final bills and distribute their estate. The steps involved are generally very similar, regardless of whether a will exists—even though laws governing probate can vary by state.

Authenticating the Last Will and Testament

Most states have laws in place that require anyone who is in possession of the deceased’s will to file it with the probate court as soon as is reasonably possible. An application or petition to open probate of the estate is usually done at the same time. Sometimes it’s necessary to file the death certificate as well, along with the will and the petition. Completing and submitting the petition doesn’t have to be a daunting challenge. Many state courts provide forms for this. If the decedent left a will, the probate judge will confirm it is valid. This may involve a court hearing, and notice of the hearing must be given to all the beneficiaries listed in the will as well as the heirs—those who would inherit by law if no will existed. The hearing gives all concerned an opportunity to object to the will being admitted for probate—maybe because it’s not drafted properly or because someone is in possession of a more recent will. Someone might also object to the appointment of the executor nominated in the will to handle the estate. To determine if the submitted will is the real deal, the court relies on witnesses. Many wills include so-called “self-proving affidavits” in which the decedent and witnesses sign an affidavit at the same time the will is signed and witnessed. Lacking this, however, one or more of the will’s witnesses might be required to sign a sworn statement or testify in court that they watched the decedent sign the will and that the will in question is indeed the one they saw signed.

Probate Lawyer Free Consultation

When you need legal help with a 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

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Utah Formal Probate

Utah Formal Probate

In Utah, as in many other states, there are two ways to administer the estate of a decedent in probate. In Utah these are called formal and informal probate. Other states may have different names. Georgia, for example, calls its two methods of probate solemn and common. In Utah, informal probate is the more common. It’s simpler, faster and generally less expensive. All that has to be done is to file an application for probate with the will. The application for probate names the proposed personal representative (also known as the executor) and lists the names and addresses of the heirs. Then the court gives notice of the application to the heirs, who have a period of time in which to object the appointment of the personal representative. If there is no objection, the application is granted and the applicant is named as personal representative. Letters Testamentary are also issued by the court. This is a document that gives the personal representative the power to act on behalf of the estate, such as signing documents such as deeds or contracts to sell property, taking control of bank and financial accounts and doing everything necessary to administer the estate. That’s about the only involvement with the court system that there is in an informal probate.

A formal probate starts out much the same way with the appointment of the personal representative. However, after that much more is involved. Notices to creditors to file claims against the estate have to be given, either by mail or publication. There is a waiting period in which claims can be filed. The personal representative files periodic reports with the court of property she collects and claims she pays. When the probate is finally administered (meaning all property has been collected, all bills have been paid and all remaining property has been distributed to the heirs) there is a final accounting and the personal representative is discharged and the probate closed.

Why Would Anyone Use Formal Probate?

It’s longer, more complicated and more expensive. The reasons for using formal probate all have to do with the protection given the estate and personal representative by the court’s supervision. After notice to creditors is given, after the claim period has expired and after the estate is closed, any claims are cut off. Neither the estate nor the personal representative has any further liability for any debts unless gross malfeasance or fraud is shown. In informal probate, if a claim arises years later, the estate or personal representative could potentially be held liable. One advantage, besides simplicity, that informal probate has over formal probate is that the probate is never closed. So if, years after the fact, some property is discovered, such as shares of stock or a forgotten life insurance policy, the appointed personal representative can deal with it without having to reopen the probate.

What Are My Probate Options?

• Small Estate Affidavit: You may be able to avoid filing a probate by signing a small estate affidavit, which can be used to collect a decedent’s Utah property, except real estate, if the net value of the decedent’s property subject to probate does not exceed $100,000. A small estate affidavit is not legally available, however, until 30 days after the decedent’s death.

• Filing Options. If filing a Utah probate cannot be avoided, the most common filing options are:

• Informal probate, which is generally appropriate for simple, uncontested estates and usually costs less than a formal probate because no attorney travel or in-court time is required. In some circumstances, the decedent’s relatives may be required to sign written consents to this process.

• Formal probate, which is appropriate for estates in which the right of the person seeking appointment as personal representative is contested or in which some other dispute may arise. Formal probate requires an in-court hearing, which the attorney (but not the client) is required to attend.

• Order determining heirs, which are appropriate when the decedent’s Utah real estate or other property located in Utah, needs to be sold and more than three years have passed since the decedent’s death.

• Ancillary probate for out-of-state decedents. This option can be used when the decedent resided outside Utah at the time of death, a probate has been filed there, and the decedent owned Utah real estate or other property that needs to be sold.

What You Need for File A Formal Probate For An Estate

Formal probate matters are typically heard by a judge and may involve one or more hearings before the court. A formal probate proceeding requires both written notice and publication notice before the allowance of the formal petition. There are different forms you’ll need to file depending on whether or not the decedent (the person who has died) died with a will.
If the decedent died with a will, you’ll need to file:

• Petition for Formal Probate of Will and/or Appointment of Personal Representative
• Surviving Spouse, Children, Heirs at Law
• Devisees
• The original will if it’s available, or if not, a statement of the will’s contents
• A certified copy of the death certificate if it’s available, or if not, an affidavit
• Citation-Return of Service , which will be issued to you by the court
• Decree and Order on Petition for Formal Adjudication
You may also need to file:
• Bond if you want to appoint a personal representative
• Military Affidavit if not all interested parties (anyone having a property right in or claim against an estate) agree to the petition
• An authenticated copy of the will and appointment if it’s for an ancillary (additional) probate proceeding
• Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties
• Cause of Death Affidavit, Affidavit of Witness to Will , Affidavit of Domicile or no conflict of a conservator (an affidavit stating a conservator of an incapacitated person or minor with an interest in the estate has no conflict of interest)
• Proof of guardianship or conservatorship
• Uniform Counsel Certification Form
If the decedent died without a will
You’ll need to file:
• Petition for Formal Probate of Will and/or Appointment of Personal Representative
• Surviving Spouse, Children, Heirs at Law
• A certified copy of the death certificate if it’s available, or if not, an affidavit
• Citation-Return of Service , which will be issued to you by the court
• Decree and Order on Petition for Formal Adjudication
You may also need to file:
• Bond if you want to appoint a personal representative
• Military Affidavit if not all interested parties (anyone having a property right in or claim against an estate) agree to the petition
• Assent and Waiver of Notice/Renunciation/Nomination/Waiver of Sureties
• Cause of Death Affidavit , Affidavit of Domicile or no conflict of a conservator (an affidavit stating a conservator of an incapacitated person or minor with an interest in the estate has no conflict of interest)
• Proof of guardianship or conservatorship
• Certification Form
Fees For File A Formal Probate For An Estate
• Probate petition filing fee – $360

How to File file a Formal Probate for an Estate

In person
Once you have the required forms, file them at the correct Utah District Court.

• File in any county where the decedent had property when they died. You may need to file additional forms in the state where the decedent lived as well.

• Serve thenotice: After you file and pay for a formal petition, the Registry of Probate will issue formal notice to the petitioner (the person filing for probate). The formal notice is called a citation. You’ll need to serve a copy of the citation on all interested persons and publish a copy in the newspaper listed in the Order of Notice.

When planning your estate and your future, there are always many different decisions that need to be made ranging from your particular financial needs to the types of estate planning instruments that will best accomplish your goals to who should be the beneficiary of your will or a trust. One thing that will not be planned by you personally will be whether your estate goes through informal or formal probate after you pass away. Your personal representative will probably be the one who makes this decision, but it is still important to understand the difference between the two processes. Informal probate begins when a personal representative makes application to a probate registrar. In informal probate, the application does not go to a judge. It is very important to make sure the personal representative completes the paperwork accurately as there will not be a probate hearing; the paperwork will be what the probate registrar uses in order to make all decisions that come up in the future. The paperwork needs to include a variety of information, ranging from the names of the heirs, the assets and debts of the estate, and personal information of the decedent. In some counties, the application must be presented in person to the registrar, but in many counties, the application may be simply mailed in.

If the application is approved by the probate registrar, notice can then be sent to all interested parties such as heirs, creditors, and the personal representative, if that is not the person who filed the application. The personal representative will receive letters testamentary from the registrar allowing him or her to take action to dissolve the estate, such as paying off debts and selling assets. Informal probate can go forward with very little oversight from the courts. By contrast, formal probate begins with the filing of a petition asking a judge to decide if the will is valid, appoint a personal representative, and determine the heirs of the deceased. In some cases, the petition may also request that the process be supervised, which mean the court would must approve distributions to the heirs before they are made. Formal probate may be appropriate where there are minors who stand to inherit; there is a dispute over the validity or existence of the will, or not knowing who should be appointed as the personal representative of the estate.

When a person dies, they are called a decedent. A decedent leaves property behind. That property needs to be passed on to those who will inherit it. The property could include:
• Real property (houses and other buildings, land and the things attached to it)
• Personal property (furniture, cars, and other things not attached to land)
• Bank accounts
• Stocks and bonds
• Debts owed to the person
The law spells out how a person’s property must be distributed when that person dies. In some states, the probate courts are in charge of making sure a decedent’s estate is distributed correctly. This is called probate administration. The estate includes a lot of the decedent’s property. Some of the property is not part of the estate and is not distributed through the probate court. The estate does not usually include:

• Jointly owned property
• Insurance policies
• Retirement accounts
• Trusts that are not established by a will

Jointly Owned Property

Jointly owned property is property owned by more than one person. It is generally not included in an estate. Examples of jointly owned personal property are if you and the decedent are both listed on the title of a car or if you have a joint bank account. When the decedent died, you automatically had full ownership of that property, so it is not part of the estate. You may want to take a copy of the decedent’s death certificate to the bank or Secretary of State Office to remove the decedent’s name from the account or car title. However, sometimes joint ownership is more complex. If you own real property with the decedent, or if you own any property with the decedent and someone else, ownership can be hard to understand after a death.

There are different ways an estate can be administered. If the estate does not have much property in it, you may be able to use a simplified process where the probate court is not involved at all, or only a little bit. The simplified processes are:
• Assignment of property
• Transfer by affidavit
• Collecting money due from an employer
• Transferring a vehicle
• Collecting personal property
These processes ignore the wishes in a decedent’s will, if any. In order to qualify for a simplified process, an estate must be worth $23,000 or less for a decedent who died in 2019. This number goes up every few years.

Appointing a Personal Representative

The order from highest to lowest priority is:
• The person named as personal representative in the decedent’s will
• The decedent’s surviving spouse, if the spouse is a devisee
• Other devisees of the decedent
• The decedent’s surviving spouse, if the spouse is not a devisee
• Other heirs of the decedent who are not devisees
• A creditor’s nominee (the creditor must wait 42 days after the decedent’s death to nominate someone, and the court must find the nominee suitable)

• The state or county public administrator (this person must wait 42 days after the decedent’s death, and there must be no known heir or U.S. resident beneficiary entitled to a share of the decedent’s estate)
A person who is named as the personal representative in a valid will has the highest priority. This person cannot transfer this priority to anyone else. However, everyone else can transfer their priority by nominating another person to be the representative. Also, a judge can find the person with the highest priority to be unsuitable and nominate and appoint someone else. If someone has a higher priority than you do to be the personal representative, it does not mean that you cannot be appointed as the personal representative. It only means that if that person challenges you to be the personal representative, he or she will likely be appointed.

Formal Probate Lawyer Free Consultation

When you need a Utah Formal 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
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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Utah Probate Code 75-3-204

Utah Probate Code 75-3-204

Demand for notice of order or filing concerning decedent’s estate.
Any interested person desiring notice of any order or filing pertaining to a decedent’s estate may file a demand for notice with the court at any time after the death of the decedent stating the name of the decedent, the nature of his interest in the estate, and the demandant’s address or that of his attorney. The clerk shall mail a copy of the demand to the personal representative if one has been appointed. After filing of a demand, no order or filing to which the demand relates shall be made or accepted without notice as prescribed in Section 75-1-401 to the demandant or his attorney. The validity of an order which is issued or filing which is accepted without compliance with this requirement shall not be affected by the error, but the petitioner receiving the order or the person making the filing may be liable for any damage caused by the absence of notice. The requirement of notice arising from a demand under this provision may be waived in writing by the demandant and shall cease upon the termination of his interest in the estate.

Order for Probate

After the initial Probate hearing the Judge will sign Judicial Council Form DE-140, Order for Probate. The Order for Probate is used to appoint the Executor or Administrator of the Estate and should be issued at the same time as the Letters of Administration which are issued so the Administrator can begin managing the estate.

Contents Of Probate

The Order for Probate will list the date, time, department and Judge who heard the case and will indicate what the Judge ordered. The Court must find that all required notices were given at the correct times and all interested parties were served. The Order will list the date the decedent died, indicate if they were or were not a resident of California and of the county in which the Probate case was opened, if the decedent died with or without a Will, the date of the Will and any codicils that were executed. The Court will then indicate on the Order for Probate that the Petitioner is appointed the Personal Representative as either executor of the decedent’s Will, administrator with Will annexed, administrator or special administrator and will determine if the special administrator will have general powers, special powers or can continue without notice of hearing.

Authority of the Personal Representative

The Judge will give authority to the Personal Representative by either giving full authority, which is governed under the Independent Administration Estates Act and allows the Personal Representative to manage the estate (i.e., sell property, manage assets and make distributions) without obtaining a Court order. The Judge can grant limited authority where nothing can be done without Court supervision and a Court order would be needed to sell, purchase, exchange or borrow money against any real property. At this time the Judge will determine if it is necessary for the Personal Representative to obtain a bond. If bond is required the Judge can determine a fixed amount to be obtained by a surety company or for the Personal Representative to make a deposit into a blocked account. Lastly, the Judge will order whether or not the Personal Representative is or is not authorized to take any money or property without a further Court order and depending on your county’s local rules, a Probate Referee will be appointed. The Judge will then date and sign the Order for Probate and you will take the Order and the Letters for Administration to the Clerk of the Court to have the documents certified.

Probate In Utah

Probate is the court-supervised process of gathering a deceased person’s assets and distributing them to creditors and inheritors. As an executor, your probate process will depend on whether your state has adopted the Uniform Probate Code (UPC), which is a set of probate laws written by a group of national experts. The UPC’s goal is to make the probate process simpler, especially for small estates, and to give executors more flexibility in how they proceed.

The Probate Process in Non-UPC States

Every probate court has its own detailed rules about the documents it requires, what they must contain, and when they must be filed. Bearing in mind that no estate is perfectly typical, here is an outline of the probate process states that do not use the entire UPC. (Almost all states have enacted bits of the UPC.)

Getting Started

You begin the probate process by asking the court to officially make you executor. If you end up acting as executor, you’ll need to:

• File a request (called a petition or application) for probate in the county in which the deceased person was living at the time of death. You will also need to file the death certificate and the original will (if there is one) with the court.

• Publish a notice of the probate in local newspaper according to court rules. Mail notices to creditors you know about.

• Mail the notice to beneficiaries and heirs, as required by the court.

• File proof that you properly published and mailed the notice.

• Post a bond (if required by the court), which protects the estate from any losses you cause (up to a certain dollar amount). The amount of the bond depends on the size of the estate.

• Prove the will’s validity by providing statements from one or more witnesses to the will. This is often done by submitting the “self-proving affidavit” that was signed by the witness in front of a notary at the time the will was signed.

• File other documents required by the court.

Administering the Estate

As executor, you’re in charge of keeping estate property safe during the probate process. You will prepare a list of the deceased person’s assets and, if necessary, get assets appraised. You’ll need to:

• Get an employer identification number for the estate from the IRS.

• Notify the state health or welfare department of the death, if required by state law.

• Open an estate bank account.

• Arrange for preparation of income tax returns.

• Prepare and file an inventory and appraisal of estate assets.

• Mail a notice to creditors and pay debts (state law may impose a deadline on you).

• If the court requires it, file a list of creditors’ claims you have approved and denied.

• If required, file a federal estate tax return within nine months after death. (Most estates are not large enough to owe federal estate tax).

• If required, file a state estate tax return, usually within nine months after death. (Fewer than half the states impose their own tax.)

Closing the Estate

When the creditor’s claim period has passed, you’ve paid debts and filed all necessary tax returns, and any disputes have been settled, you’re ready to distribute all remaining property to the beneficiaries. You’ll need to:

• Mail a notice to heirs and beneficiaries that the final hearing is coming up. (This must be done a certain period of time before the hearing; the court will have a rule.)

• File proof that you mailed the notice as required.

• Get the court’s permission to distribute property.

• Transfer assets to the new owners and get receipts.

• After you distribute assets and all matters are concluded, file receipts and ask the court to release you from your duties.

The Probate Process in UPC States

Although the law is very similar in the states that have adopted the entire UPC for probate, it isn’t identical. You’ll need to learn your own state’s (and sometimes your own county’s) particular rules. Under the UPC, there are three kinds of probate: informal, unsupervised formal, and supervised formal. Here is an overview of each.

Informal Probate

Most probates in UPC states are informal. This relatively simple process is used when inheritors are getting along and you don’t expect problems with creditors. If anyone wants to contest the proceeding, you cannot use informal probate. The whole process is just paperwork — there are no court hearings.

The first step is to file an application with the probate court to begin an informal probate and serve as the “personal representative” (the term UPC states use instead of “executor” or “administrator”).Once your application is approved, you will have official authority — often in the form of a document called “letters testamentary” or “letters” — to act on behalf of the estate. You will need to do the following:

• Send out formal written notices of the probate to heirs, beneficiaries, and creditors that you know about.
• Publish a notice in the local newspaper to alert other creditors.
• Provide proof that you’ve properly mailed and published the notices.
• Prepare an inventory and appraisal of the deceased person’s assets.
• Keep all estate property safe during the probate.
• Properly distribute the property.
• After you have distributed the property, you can close the estate informally by preparing and filing a “final accounting” with the court.
Finally, you’ll file a “closing statement,” stating that you have paid all debts and taxes, distributed the property, and submitted the final accounting.

Unsupervised Formal Probate

Unsupervised formal probate in UPC states is a traditional court proceeding, much like the regular probate described above. It is generally used when there is a good reason to involve the court — for example, if there’s a disagreement over the distribution of the estate’s assets, the heirs need to be determined (if there is no valid will), or minors are inheriting significant property. You may need to get the court’s permission before you sell the deceased person’s real estate, distribute property to beneficiaries, or pay a lawyer — or yourself — for work done on behalf of the estate. To close the estate, file an accounting that shows how you handled the estate’s assets.

Supervised Formal Probate

Supervised formal probate is the rarest form of probate. It’s used only if the court finds it necessary to supervise the probate procedure — for example, because a beneficiary can’t adequately look after his or her own interests and needs the court’s protection. As you might expect, you must get court approval before distributing any property in this case.

What is meant by “written notice of filing” of an order?

Filing occurs when the district court administrator officially makes the order part of the record. The administrator will stamp the order with the date of filing. The administrator may file the order on the same day that the district court judge signs it, but sometimes the order is not filed until later. A “notice of filing” is a separate document that must, at a minimum, notify the recipient what it is that has been filed and the date of filing. An appeal from an appealable order must be filed and served within 60 days after service by any party of written notice of the filing of the order. A “party” is a person or entity who participated in the district court proceeding. The district court administrator is not a party, so generally a notice from the court administrator about the filing of an order does not start the appeal time. An important exception to this rule is that in appeals from child-support orders in the expedited support process, the court administrator’s service of notice of filing of the order does start the appeal time.

You do not need to wait until a party serves written notice of filing of an appealable order to file your appeal, but if any party serves a written notice of filing of the order, then the appeal period will end in 60 days. Service of a document may be made personally or by United States mail. The parties may agree to service by facsimile or other electronic means. If the appeal period is counted from a party’s service of notice of filing (as it is with most orders), and the notice of filing is served by mail, three days are added to the prescribed period, but the time must be counted from the date the notice was mailed, not the date of receipt. Therefore, in most types of civil cases, if any party serves written notice of filing of an appealable order by mail, the appeal period expires 63 days after the date the notice was mailed. If the appeal is not served and filed within that time, it cannot be considered by the court. Another appellate timing rule states that no order made before entry of judgment shall be appealable after the time to appeal the judgment has expired.

Lawyer For Probate Free Consultation

When you need legal help with a 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

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How Do I Get A Copy Of My Father’s Will?

How Do I Get A Copy Of My Father's Will?

At the point when an individual dies, his advantages go to his recipients as indicated by the terms laid out in his will. On the off chance that he didn’t desert a will, he kicked the bucket “intestate,” and the probate court in the district where he lived circulates his residual resources as per state law. As the offspring of the perished, you might be qualified for a legacy paying little mind to whether your dad deserted a will. The will’s agent or the probate court must tell you of any legacy you are planned to get after your dad’s demise. The probate procedure, be that as it may, isn’t immaculate and recipients don’t generally get legitimate notice of their legacy. In the event that you speculate you might be qualified for a bit of your perished dad’s domain, you have a few choices, contingent upon whether your dad left a will.

Visit the district court in the district where your dad’s will was probated. On the off chance that the probate procedure is finished, your dad’s will involves open record. You can look through the open records held at the town hall for your dad’s will to decide if he left you any benefits. On the off chance that you don’t live in or close to the area that holds your dad’s will on record, that does not imply that you can’t get to it. Some probate courts keep up an open records database on the web. This enables you to scan for your dad’s will – and your potential legacy – while never leaving your home

Visit your state’s unclaimed property database and direct a pursuit under your dad’s name. On the off chance that any advantages he abandoned after his passing went unclaimed, the state deals with the cash until the legitimate beneficiary approaches. Albeit a few states try to find the legitimate recipients of unclaimed resources, not constantly and assets to do as such. In this way, it’s occasionally dependent upon you to find your unclaimed legacy.

Contact the executor of your father’s estate. The executor of your father’s will is responsible for managing his assets and debts following his death. This responsibility includes notifying beneficiaries of their inheritances. Because the executor has a copy of your father’s will, the executor will know how much of an inheritance, if any, your father set aside for you.

Contact the administrator of your father’s estate if he died without a will. An administrator’s responsibilities are similar to an executor’s. When an individual dies without leaving behind a will, the court appoints an administrator to ensure the deceased’s assets are distributed according to state law. The administrator of your father’s estate can explain the contents of your father’s estate and how much of that estate you are entitled to under your state’s intestate succession laws.

At the hearing, you will have to present the original will, not a photocopy, to the probate judge. The judge will examine it to determine if it appears to be valid. If the will is not obviously invalid, he will issue an order admitting it to probate. He will also formally appoint the estate executor. In almost all cases, the judge will appoint the executor named in the will. The judge will then issue documents to the executor that establish his authority to perform duties such as withdrawing money from your father’s bank account or selling estate assets. He may authorize the executor to distribute a stipend to your father’s dependents to cover their living expenses during the probate process. Finally, the judge will set another hearing date.

Would I be able to Sue My Stepmother for a Duplicate of My Dad’s Will?
On the off chance that your dad is alive, you can’t sue your stepmother for a duplicate of his will. On the off chance that your dad has passed on and your stepmother won’t give you a duplicate of his will, you can compose your stepmother a letter officially requesting a duplicate. In the event that she doesn’t react, you can begin lawful procedures with the probate court in your dad’s geographic region requesting that the court request her to create the will and submit it to the court. You would then be able to get a duplicate of the will from the court.

An English law, the Theft Demonstration of 1861, expressed that any individual who stole, devastated or hid a will during a deceased benefactor’s lifetime or after his demise could be sent to imprison for a term enduring from two years to life. In that equivalent time, American states started creating laws making different punishments for agents and beneficiaries who did not deliver a will for probate, including losing executorship and different rights under the will.

Current State Laws

In spite of the fact that state probate laws contrast starting with one state then onto the next, they each have arrangements in their resolutions that address when an individual possessing a will ignores or won’t create the will for the neighborhood probate court. In such cases, the probate court can, after accepting a request from you, request that individual to create the will or face court sanctions.

Your initial step is to contact the nearby probate court in your dad’s geographic territory and inquire as to whether a duplicate of his will was documented there previously or after his passing. In the event that the will was documented with the probate court, request that the court give you a duplicate. On the off chance that no duplicate of the will has been documented, send your stepmother a considerate, marked and dated letter requesting that her give you a duplicate of the will. Keep a duplicate of the letter for your records. You may wish to send the letter by guaranteed mail to guarantee that you have a record of having sent the letter.

On the off chance that your stepmother disregards your letter or won’t send you a duplicate of the will, you can send her a second legitimate letter, normally titled “Request to Deliver Will.” In the subsequent letter, recognize yourself as a beneficiary of your dad, express that you have not gotten a duplicate of the will as you mentioned, demand that none of your dad’s property be sold or given away until the will has been submitted to a probate court, and approach again for a duplicate of the will. Send the letter by affirmed mail and keep a duplicate of the letter for your documents.

On the off chance that you get no answer to your subsequent letter or your stepmother rejects your solicitation, you would then be able to contact the probate court and request the court to force your stepmother to record the will with the court. Requesting of the court to arrange your stepmother to create the will begins a common suit. Most trust and bequest lawyers prescribe that you employ an attorney to lead the case since probate law is perplexing. You likewise need to remember that your state may have a legal time limit, giving you only a couple of years wherein to document the case, and on the off chance that you don’t begin lawful procedures inside that time span, you will most likely be unable to force your stepmother to deliver your dad’s will

At the point when guardians pass away, and desert a last will and confirmation, their beneficiaries must explore the regularly mind boggling procedure of probate. On the off chance that your dad selected a lawyer to deal with his home, that delegate will know the systems for telling the agent, or individual agent, and getting the will exhibited to the probate court. On the off chance that there is no lawyer included, at that point as an immediate beneficiary you may have obligation regarding beginning the procedure. You should pursue a few significant strides to guarantee that the will is probated without superfluous legitimate inconveniences.

Letters of Administration

On the off chance that the individual delegate can’t do the undertaking, or if no close to home agent is named in the will, you should display the will and an appeal for probate to the state court that will deal with the procedure; this obligation is generally completed by the individual delegate. You can demand that the court name you, as your dad’s immediate beneficiary, as close to home delegate. On the off chance that the court consents to this, it will outfit you with letters of organization, otherwise called letters testamentary; this is an authoritative report that enables you to continue for your dad’s benefit to do the conditions of the will.

Probate

In the conventional course of a probated will, the court opens the case, allocates a case number, selects the individual agent of the bequest and issues the letters of organization. The individual delegate at that point makes a vow to reliably do the conditions of the will and pursue the applicable laws and methods. The court officially concedes the will into probate, as long as it meets the lawful rules set somewhere around the state for wills.

Notice

In certain states, you or the individual delegate must distribute an open notice of your dad’s demise in the paper. This lawfully tells people in general of the passing, enabling anybody with cases to the home to approach and record their cases with the probate court. At the point when a will is confessed to probate, it ends up open record; loan bosses have a restricted timeframe, be that as it may, to document any cases against the domain.

The last advance is to guarantee that a stock of the bequest exists or is drawn up. You father may have set one up as of now; if not, the court will require a total rundown of every one of his benefits including ledgers, ventures, land, vehicles, pontoons, and resources, for example, work of art, adornments, accumulations, collectibles, and so forth. The individual delegate named in the will can complete this undertaking, however by and large, he will require your help, or that of another relative, to guarantee the stock is exceptional and precise.

Will Validity

A valid will is necessary to distribute estate assets in accordance with your father’s wishes. It should be printed and signed by your father or by someone authorized to sign on your father’s behalf. Some states accept handwritten wills but not all so know your state’s restrictions. Many states require at least two witnesses to sign the will as well. The will must contain original signatures — in other words, it can’t be a photocopy of the will your father actually signed. If your father’s will doesn’t appear to meet these requirements, search his belongings to see if he executed another will that does meet these requirements.

Preliminary Procedures

The probate process is initiated when someone, whether or not the estate executor, delivers a copy of the will and a certified copy of your father’s death certificate to the clerk of the county probate court along with an application for probate. The county coroner or the mortuary where your father’s body was taken prior to the funeral should have access to a copy of the death certificate; the clerk of the county probate court should have access to applications for probate. Alternatively, you might be able to download an application for probate from the county probate court’s website. The application for probate will probably request only basic information such as your father’s name and the name of the estate executor he appointed. Once you have delivered these documents to the probate court clerk, the court will set a hearing date and notify the executor. The executor and the probate court handle all further probate administration. If you are not the executor, you will have no further duties.

Estate Assets

The executor must catalog all estate property. He must pay off all of your father’s creditors before distributing any property to heirs, even if this means selling estate assets to raise cash to pay debts. He must also collect any money owed to the estate such as your father’s last paycheck or a tax refund. The court will set a waiting period during which a hearing will be held to allow estate creditors or heirs to challenge the distribution of property under the will — and to allow interested parties such as would-be heirs to contest the validity of the will. If the will is fiercely contested, several hearing may be necessary. After the waiting period expires, the probate court makes a final determination as to how estate property is to be distributed and to allow the executor to distribute it.

Probate Lawyer Free Consultation

When you need legal help with probate, estate planning, or wills 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

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Good Resources On Estate Planning Trusts

Good Resources On Estate Planning Trusts

Trusts can be effective tools for assisting and making life easier for a surviving spouse. They can also be used as part of a strategy to reduce estate settlement costs. People might do an excellent job of managing their assets when they are active and alert, but when their health fails, they might wish to assign the management of their assets to a trustee through a trust instrument. If the estate of the first to die is large and will flow directly to the surviving spouse, especially if the surviving spouse is elderly and inexperienced in investing and managing assets, a trust might be the most desirable method of meeting the surviving spouse’s and children’s present and future interests. A trust is a legal relationship. Unlike a corporation, a trust is not considered to exist as an entity separate from the people that own it and control it. A trust is created when it is signed, or it can be created orally. It can be funded anytime. In a trust, assets are entrusted to a trustee who holds legal title and manages the assets until they are distributed to the eventual beneficiary. The terms of the trust describe how income from the assets and principal are to be distributed and managed. The trustee can be a bank, a trust company, another professional, or one or more family members (spouse, son, daughter, or self).

Usually the trustee is someone trusted by the trust creator (the settler or grantor). The trustee should be capable of managing the assets entrusted to him or her by the creator, until the assets are distributed to the benefactors. Beneficiaries can receive income from a trust during the trust’s existence, and/or receive assets when the trust is dissolved. When a trust is set up by spouses, the surviving spouse usually receives the income from the assets that are in the trust; assets then go to the children when the trust is dissolved. When a trust is created, the creator determines the conditions under which the trust will be dissolved. In the case of creating a trust with a child as the beneficiary, some creators wish the trust to be dissolved when the child is capable of wisely spending or investing his or her inheritance. A trust can also be dissolved when the surviving spouse dies. In both instances, the benefactors can receive income from the assets in the trust, and have limited access to the principal, if needed, before the trust is dissolved.

If assets are to be transferred to a trustee, titled assets (cars, trucks, stocks, bonds, real estate, savings/checking accounts, certificates of deposit, insurance policies, retirement accounts, etc.) should be retitled, as titles need to be changed with each respective titling agency. Some banks will institute an early withdrawal penalty if the title of a certificate of deposit is changed before the certificate matures. Assets without titles need to be signed over to the trust. Then, at the termination of the trust, assets need to be retitled and transferred back to beneficiaries. In regards to transferring assets, the same processes that happen through probate occur with a trust. Transferring property through a trust rather than through probate is not necessarily simpler and might or might not allow the heirs to receive a larger portion of the inheritance, but the trust process is usually quicker. However, transfer of property through a trust is more private, as there is no listing of assets and value of assets in the probate court or newspaper. Because the trust is a legal relationship not separate from the people that own and control it, assets transferred to a trust need to be put into the name of the trustee, not into the name of the trust. Transfers of title into the name of the trust might be a void transfer.

Types of Trusts

Assets can be transferred into a trust directly while one is living (these trusts are known as “inter-vivo” or “living trusts”), or assets can be directed into a trust by one’s will (these are called “testamentary trusts”). Living trusts that can be changed or revoked by the settler are called “revocable,” while those that cannot be changed or revoked are called “irrevocable.”

Revocable Living Trusts

Property placed in a revocable living trust can be returned to the creator by revoking the trust. Since the creator has the power to pull the assets back, when the creator’s estate is settled, assets in a revocable living trust are inventoried, appraised, and included in and federal estate tax calculations.

Irrevocable Living Trusts

When an irrevocable living trust is created, the creator has given the assets to the trustee. The creator no longer has control over the assets, or the legal right to control them in the future, unless the creator is the trustee. Assets in an irrevocable living trust are not subject to estate taxes unless the creator is also the trustee or has retained other rights.

Totten Trust (Payable-on-Death Accounts)

This is even easier than setting up a revocable living trust. If you have a bank account, you can simply turn it into a Totten trust by signing a form that your bank provides that designates the beneficiaries that you wish to receive the contents of the account. Totten trusts avoid probate and are very efficient at transferring property to your beneficiaries. In addition, Totten trusts can often be set up to pass securities (stocks and bonds) as well as bank accounts.

Trusts have been used to minimize federal estate taxes while providing security to a surviving spouse. One strategy to do this is to create a trust and write the wills of both spouses so that their assets pour over into the trust when the first spouse dies. In other words, the assets are willed to the trust rather than to the surviving spouse. The surviving spouse then gets the income from the trust and has limited rights to the principal, but the property in the trust is not in the surviving spouse’s estate. This is one way to have the first to die spouse’s assets pass through estate settlement and be charged estate settlement costs only once instead of twice if passed from the first to die to the survivor. This strategy no longer reduces federal estate taxes due to the portability of the federal estate tax exclusion, but it still reduces other estate settlement costs. A new provision in the federal estate tax law might reduce the use of trusts in estate planning.

Another very effective use of trusts is to make the trust the owner and beneficiary of life insurance. This might reduce estate settlement costs since the proceeds are not subject to federal estate taxes (in certain cases), appraisal, probate costs, or attorney fees (in certain cases). To minimize estate taxes yet provide for a surviving spouse, a trust might be utilized. However, if a trust is used to avoid probate, it should be done in the appropriate situations and for the correct reasons. One appropriate reason for living trusts is privacy. When an estate is settled, property being transferred, along with its appraised value, is often listed in the newspaper and at the county courthouse. However, if the property has already been transferred to a trust, it is not owned by the deceased at the time of death; therefore, it is not listed in the newspaper or at the courthouse. Living trusts are only one of several ways to avoid probate. Other methods include joint ownership of real property with rights of survivorship (JTRS), owning property such as retirement accounts with named beneficiaries, having payable on death (POD) accounts, giving before death, and owning life insurance policies with a named beneficiary. Probate might also be avoided by using a transfer on death (TOD) designation for stocks, bonds, other securities, real estate, and automobiles. Unfortunately, the laws of Ohio are not uniform as to each of these asset categories. For example, with any security, you can specify that if the intended beneficiary predeceases you, the predeceased beneficiary’s share will pass to the beneficiary’s lineal descendants, per stripes. However, with real estate, you have to specifically name the contingent beneficiaries. Accordingly, if one of your children has another child after you set up the deed, you will need to prepare a new deed to reflect a new contingent beneficiary. If these limitations are not of concern, you should be able to avoid probate for all titled assets without going to the expense of a trust.

Typical probate fees are estimated to be between $150 and $400. Probate fees are negligible, so avoiding probate to avoid probate fees might not be appropriate. Executor fees are another settlement cost. An executor in the probate process performs functions similar to those of a trustee for a trust. In general, the more time spent and the more management required of a trustee, the higher the fees (assuming the fees are accepted). Assuming that a family member is the executor or trustee, the fees are not a concern. However, trustee fees might be higher if a bank or trust company performs the function. Avoiding probate to avoid executor fees is not advantageous since trustee fees might be as much as or higher than executor fees. An appraisal is needed if tax forms have to be filed. An appraisal might be necessary when assets are placed into a living irrevocable trust, as gift tax forms might need to be filed. So the appraisal fee is often incurred even if probate is avoided with a trust instrument. Attorney fees are often a large portion of estate settlement costs. However, attorney fees will be charged when property is passed on to others through the probate process or through a trust. Also, to settle an estate, some attorneys charge by the hour. Others base their fees on a percentage of probate property only, and some base their fees on both probate and non-probate property. Although the percentage charged for non-probate property is generally lower than the percentage charged for probate property, one cannot automatically assume that non-probate property will not be included in the attorney fee calculation. Attorneys also charge to create and dissolve trusts. Property must be retitled into the trust when it is put in, and it must be retitled out of the trust when the trust is dissolved. Retitling might or might not be included in the fee charged by the attorney who created the trust. Therefore, attorney fees might not be reduced when avoiding probate by the use of a living trust. If you are considering a living trust to save attorney fees, consider the total cost of creating and dissolving the trust. In general, with a living trust, you pay attorney fees up front, but you also pay after death to dissolve the trust. If assets are handled by probate, the court oversees their retitling and transferring. If assets are put into a trust, an attorney has to do their retitling and transferring when the trust is dissolved.

Steps to an Estate Plan

A checklist to help you take care of your family by making a will, power of attorney, living will, funeral arrangements, and more. Here is a simple list of the most important estate planning issues to consider.
• Make a will: In a will, you state who you want to inherit your property and name a guardian to care for your young children should something happen to you and the other parent.
• Consider a trust: If you hold your property in a living trust, your survivors won’t have to go through probate court, a time-consuming and expensive process.

• Make health care directives: Writing out your wishes for health care can protect you if you become unable to make medical decisions for yourself. Health care directives include a health care declaration (“living will”) and a power of attorney for health care, which gives someone you choose the power to make decisions if you can’t. (In some states, these documents are combined into one, called an advance health care directive.)
• Make a financial power of attorney: With a durable power of attorney for finances, you can give a trusted person authority to handle your finances and property if you become incapacitated and unable to handle your own affairs. The person you name to handle your finances is called your agent or attorney-in-fact (but doesn’t have to be an attorney).
• Protect your children’s property: You should name an adult to manage any money and property your minor children may inherit from you. This can be the same person as the personal guardian you name in your will.
• File beneficiary forms: Naming a beneficiary for bank accounts and retirement plans makes the account automatically “payable on death” to your beneficiary and allows the funds to skip the probate process. Likewise, in almost all states, you can register your stocks, bonds, or brokerage accounts to transfer to your beneficiary upon your death.
• Consider life insurance: If you have young children or own a house, or you may owe significant debts or estate tax when you die, life insurance may be a good idea.
• Understand estate taxes: Most estates more than 99.7% won’t owe federal estate taxes. For deaths in 2017, the federal government will impose estate tax at your death only if your taxable estate is worth more than $5.49 million. (This exemption amount rises each year to adjust for inflation.) Also, married couples can transfer up to twice the exempt amount tax-free, and all assets left to a spouse (as long as the spouse is a U.S. citizen) or tax-exempt charity is exempt from the tax.
• Cover funeral expenses: Rather than a funeral prepayment plan, which may be unreliable, you can set up a payable-on-death account at your bank and deposit funds into it to pay for your funeral and related expenses.
• Make final arrangements: Make your end-of-life wishes known regarding organ and body donation and disposition of your body burial or cremation.
• Protect your business: If you’re the sole owner of a business, you should have a succession plan. If you own a business with others, you should have a buyout agreement.
• Store your documents: Your attorney-in-fact and/or your executor (the person you choose in your will to administer your property after you die) may need access to the following documents:
 Will
 Trusts
 insurance policies
 real estate deeds
 certificates for stocks, bonds, annuities
 information on bank accounts, mutual funds, and safe deposit boxes
 information on retirement plans, 401(k) accounts, or IRAs
 information on debts: credit cards, mortgages and loans, utilities, and unpaid taxes
 Information on funeral prepayment plans, and any final arrangements instructions you have made.

The Importance of Estate Planning

Many people believe that having an estate plan simply means drafting a will or a trust. However, there is much more to include in your estate planning to make certain all of your assets are transferred seamlessly to your heirs upon your death. A successful estate plan also includes provisions allowing your family members to access or control your assets should you become unable to do so yourself.

Here is a list of items every estate plan should include:
 Will/trust
 Durable power of attorney
 Beneficiary designations
 Letter of intent
 Healthcare power of attorney
 Guardianship designations
In addition to these six documents and designations, a well-laid estate plan also should consider the purchase of insurance products such as long-term care insurance to cover old age, a lifetime annuity to generate some level of income until death, and life insurance to pass money to beneficiaries without the need for probate.

Get Legal Help Finding the Right Estate Plan for You

Probate laws are some of the oldest on the books. While the terminology and concepts may seem archaic, the good news is that you don’t have to figure this all out on your own. There are estates planning attorneys who can help you map out your estate plan and draft important documents. Get started on planning your estate by contacting an experienced estate planning lawyer.

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

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4.9 stars – based on 67 reviews


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Duties Of A Utah Probate Personal Representative

Duties Of A Utah Probate Personal Representative

A Personal Representative commonly referred to as an Executor, of an estate is an individual or institution designated to administer the estate of a decedent. As a fiduciary, a Personal Representative must settle and distribute the estate of the decedent as efficiently as possible by adhering to the directions outlined in the decedent’s Last Will and Testament and the probate laws of the state where the estate is being administered. The primary duty is to protect the estate in a manner consistent with the decedent’s wishes. Although this may appear relatively simple, it is important that the Personal Representative understand the responsibilities associated with the position. As a word of caution, failure to adhere to these duties and responsibilities can result in the filing of lawsuits against the Personal Representative of the estate for breach of fiduciary duty.

Generally speaking, a Personal Representative is responsible for collecting the assets of the estate, protecting the estate property, preparing an inventory of the property, paying various estate expenses, paying valid claims (including debts and taxes) against the estate, representing the estate in claims against others, and eventually distributing the estate property to the beneficiaries. In the event the decedent passed away with a Will, the Will may often impose additional duties on the Personal Representative that are not required by law.

DUTIES

In Utah, a personal representative has a duty to administer the decedent’s estate and distribute it to the decedent’s lawful heirs and beneficiaries in accordance with Probate law and with the decedent’s Will. The personal representative should act as quickly and efficiently as is consistent with the best interests of the estate and must use his or her authority for the best interests of the decedent’s heirs and beneficiaries. The personal representative has many additional duties, including the following.

• Take possession, manage, and preserve the decedent’s property: The personal representative has a duty to take possession of the decedent’s property unless the decedents will provide otherwise. The personal representative may, however, leave the decedent’s real property or tangible personal property with a person who is presumed to be entitled to the property until the personal representative needs possession of the property to administer the decedent’s estate.

• Manage, protect, and preserve, and pay taxes on, the estate in the personal representative’s possession.

• Prepare an inventory of the decedent’s property: The personal representative has a duty to prepare within three months after being appointed an inventory of property owned by the decedent at the time of death. Each item of property listed on the inventory should be described in reasonable detail. For each item, the inventory should also indicate its fair market value on the date of the decedent’s death and the type and amount of any mortgage, lien, or other encumbrance. If an item was appraised, the inventory should indicate the name and address of the appraiser. Send a copy of the inventory to each interested person who requests it. Also, the personal representative may file the inventory with the court.

• Prepare a supplemental inventory that lists any property not included in the original inventory that comes to the personal representative’s knowledge, shows the correct description and fair market value of any property listed in the original inventory which the personal representative has since learned was incorrectly described or valued, and indicates appraisers or other data relied upon.

• Furnish a copy of any supplemental inventory to persons interested in the new information. Also, if the original inventory was filed with the court, the supplemental inventory should also be filed with the court.

• Publish a notice to creditors: The personal representative has a duty to publish a notice to creditors in a newspaper of general circulation in the county where the probate is filed. The notice should be published once a week for three successive weeks. The notice should announce the personal representative’s appointment and address and state that creditors of the estate should present their claims within three months after the date of the first publication of the notice or be forever barred. As part of the administrative duties, the Personal Representative must give legal notice of the decedent’s death to known creditors and potential creditors. Creditors generally have a prescribed time in which to file claims against the decedent’s estate. Upon the expiration of this period, the Personal Representative must pay all legitimate claims against the estate. Failure to file a claim against the estate within the prescribed time frame forever bars future claims of more creditors. It should be emphasized that prior to payment, the Personal Representative should consider the validity of all claims against the estate.

Pay creditors’ claims and applicable taxes: With respect to claims filed by creditors, the personal representative has a duty to provide for homestead, family, and support allowances before paying creditors’ claims and decide which creditors’ claims to allow or disallow.

Pay allowed creditors’ claims in the following order:

• Reasonable funeral expenses;
• Costs and expenses of administering the estate
• reasonable and necessary medical and hospital expenses of the last illness of the decedent, including compensation of persons attending him;
• debts and taxes with preference under other law

The personal representative also has the duty to file any applicable tax returns and pay any applicable taxes. Applicable tax returns will include the decedent’s final income tax returns and may also include, depending on the circumstances, income tax returns for the decedent’s estate, gift tax returns, or estate tax returns.

Preparation and Filing of Tax Returns

In addition to the accounting, the Personal Representative is responsible for preparing and filing all applicable income tax returns on behalf of the decedent for the period of time the decedent was alive and on behalf of the decedent’s estate. It is important to remember that death terminates the decedent’s tax year and thereafter the decedent’s estate is a separate taxpayer. The Personal Representative is also responsible for paying all applicable state and federal estate taxes. These responsibilities may include at least four separate sets of tax returns:

• the decedent’s final income tax returns;
• applicable federal and state income tax returns of the trust or estate;
• applicable federal and state estate tax returns; and
• any gift tax returns

Each return has a specific due date and in some instances a tax return may be required to be filed even when no taxes are due.

Distribution of Assets and Closing the Estate

Once all of the assets are collected and the claims are satisfied, the Personal Representative must distribute the assets consistent with the terms of the Will or the state’s probate laws. When the court approves the final account and the assets have been distributed, the estate is considered closed. At this point, the responsibilities of the Personal Representative end. Generally, the standard of care required of the personal representative with respect to management of the assets of an estate is the same as required of a Trustee, exercising reasonable skill and caution and acting as a prudent investor.

POWERS

A personal representative in Utah has many powers some of which are listed below. Among his or her powers, the personal representative may:
• Employ a qualified, disinterested appraiser to ascertain the fair market value of an asset of the decedent if the value is unclear.
• Receive reasonable compensation for services to the estate.
• Petition the court for an order that determines, if the decedent left a Will, the validity of the Will and the beneficiaries under the Will, or that determines, if the decedent did not leave a valid Will, the decedent’s lawful heirs, that approves a final account by the personal representative of the estate’s property and finances, that determines a final distribution of the estate.
• Petition the court, after the estate has been distributed, for an order approving the final distribution of the estate and discharging the personal representative from further liability.
• Informally close the estate, no earlier than four months after being appointed, by filing a sworn statement with the court that complies with Utah Code

How to Be the Personal Representative of an Estate

To become the personal representative, you must file an Application for Administration for an intestate estate. The application must be filled out with the required information, including your priority for being appointed personal representative and the names and addresses of the surviving spouse and all beneficiaries. Probate rules are established by your state and include identifying who can serve as an administrator and the priority of appointment. A surviving spouse usually is given first choice at filling this role. If they decline, the deceased’s children are next in line. When there is no spouse or children, family members may be selected. If more than one person with priority wants to serve as administrator, and the heirs can’t agree, then the court will choose.

These basic steps will show you how to file for executor of an estate without a will

Normally an executor is named in a will, but when someone dies without a will, the court must appoint an executor to administer the estate. Executor (or executrix if female) is the traditional term for the person named in a will and subsequently appointed by the probate court to oversee the estate of a person who has died with a will. Some states have now adopted statutes that replace the term executor with personal representative so the terms are often used interchangeably.
A testator, or person making a will, often names someone he trusts in the will to manage his affairs after his death. This person is referred to as a personal representative or executor. Since family members are often the most trusted people in the testator’s life, one or more of them are frequently named as personal representatives even though they may also be devisees, or beneficiaries, under his will.

Receive Written Waivers From Other Parties or Candidates

You need to receive a written waiver from other candidates for administrator that have higher priority. For example, if you are the brother of the deceased, you may need to get a written waiver from the deceased’s spouse and children before you can be appointed administrator. In most states, probate will occur in the county where the deceased had residence. You need to contact that court to understand their filing requirements and timelines. Frequently you will need to file a Petition for Probate along with the Notice of Petition to Administer Estate.

Selection

If no executor is named in the will or the executor is unable to serve, the probate court appoints an administrator. By law, the selection of this individual is based on his legal relationship to the deceased person. This is referred to as the priority ladder and at the top is the surviving spouse, provided she stands to inherit under the will. If she will not inherit, then the priority goes to any other person who will. If these individuals are unable or unwilling to serve or if there is no will, then priority goes to the surviving spouse. If there is no surviving spouse, all other living heirs have priority. If no heirs can be found, a public administrator will be appointed.

Disqualification

Regardless of priority, there are some certain legal restrictions on who may accept an appointment as an administrator. First, no administrator can be under the age of 18 or be under the custody of a guardian or conservator. Also, if the administrator feloniously and intentionally killed the deceased person, this conviction results in an immediate disqualification. The administrator cannot be the decedent’s former spouse or a relative of the former spouse. The probate court also has wide discretion to deny any appointment if found to be in the best interests of the estate.

Termination

The appointment of an administrator terminates when the administrator dies or becomes incapacitated. He also may resign voluntarily with the consent of the probate court. Also, a relative of the decedent may petition the court for removal of the administrator under certain circumstances. Grounds for involuntary removal include disregarding an order of the court, intentional misrepresentation of facts leading to the administrator’s appointment and mismanagement of the estate. Once removed, a successor administrator will be appointed in the same manner as the initial administrator.

Removal of an Executor of Estate’s Responsibilities

An estate executor is responsible for handling the decedent’s, or deceased people, estate including bill payment and property distribution. The executor is named in the decedent’s will; he receives his authority from court through legal proceedings known as probate. If an executor’s responsibilities are removed before he completes his duties, a new person must be appointed to finish settling the estate.

Probate Lawyer Free Consultation

When you need legal help with a probate in Utah, please call Ascent Law LLC 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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What Are Four Positive Outcomes Of Estate Planning?

What Are Four Positive Outcomes Of Estate Planning

One of the hardest times for any family is when a major pillar of the household has fallen through demise or being incapacitated. It is even harder when the particular individual has left wealth or estates unplanned for the descendants. This leads to squabbles among family members who each feel entitled to a part of the cake and so it is crucial that proper estate planning is done using a very good lawyer.

Some of the benefits of estate planning include:

• Peace For Everyone: This is perhaps the most important aspect of estate planning, something that a good lawyer well insists on. Ensuring that you have planned your wealth when it comes to inheritance ensures that you not only have a peace of mind but that there is peace in your family. This is of more value than the wealth itself working towards maintaining relationships. Peace in the family ensures that people are able to work in contentment even after you are gone.

• Having Goals Met: One of the many options when it comes to estate planning is creating a living trust that is flexible enough to have your goals met. It is an ideal time to ensure that some of the unfinished tasks in the family are done on your part. A living trust allows you to stipulate the conditions of an inheritance and provides a clause that only when a certain task, e.g. education, is fulfilled, can a person have access to wealth from the deceased. This allows you as the person making the will to have the upper hand when it comes to safeguarding the interests of the family as well as your own. The attorney has absolute power in making sure that the obligations are met before any part of the estate in disbursed to the mentioned successors.

• Best Decision-Making: Estate planning allows you to make very good decisions concerning your property since an estate planning lawyer is involved. It is the duty of the lawyer to take the client through all the available options and finally recommend the best for execution.

• Ensuring Growth in Posterity: This is also one of the best ways to ensure that your property is used and run by capable persons. A will like the living trust allows you absolute power to put a well capable person in charge of the estate in case you are not available in any way. It also ensures that you have total control of who gets the property.

There are four main elements of estate planning, which include drawing up a will, a living will and healthcare power of attorney, a financial power of attorney, and in some cases, a trust.

Wills

A will outline your wishes for the assets that you own at your passing. It allows you to name the people to whom you wish you give these assets, and without one, your assets will immediately go to your first family member. Having a will in place will give you peace of mind knowing that your assets (including electronic) are going to whom you want them to and knowing that your financial affairs are in order. It will also mitigate the risk of an administrative mess for those left behind. Be sure to discuss your plans with your heirs and to alleviate any issues or disagreements sooner than later.

Healthcare Directive and Living Will

A Healthcare Power of Attorney (HPOA) is a signed legal document in which you name a single person as your healthcare decision maker in the event that you can’t make decisions yourself. A living will, also known as an advanced medical directive, outlines your wishes regarding medical care in the event that you are incapacitated, terminally ill, or unable to communicate. This is a statement of your wishes as they relate to decisions about life support and any kind of life-sustaining medical intervention that you want or don’t want.

Financial Power of Attorney

Similar to the Healthcare Power of Attorney, a Financial Power of Attorney outlines who you want to make your financial decisions on your behalf should you become incapacitated. Without this document, no one will have the authority to step in and handle bill-paying, investment decisions, and other financial matters. You don’t want these things left up to the courts; therefore it’s imperative to give that authority to the person that you select. Like the Healthcare Power of Attorney, it’ best to get this document at the same time as your will. Or, if you have any discomfort in having your parents or spouse make all financial decisions for you, immediately. Online is suitable for a basic document, but if you have specific requirements that require detailed documentation, it’s best to see an estate attorney.

Trust

A trust is a legal entity that can own your assets (while living or at death) and be controlled based on your wishes outlined in the legal document that created the entity. For example, a trust would allow you to dictate how you wanted your child to benefit from your assets throughout his or her life. You may want to stipulate that they are used in a certain way or received at a certain time. A trust is a way to protect assets from being used in a way that you would not see fit if you were in control of them. There are several advantages to having a trust; however, it is not necessary unless you are worried about the oversight or care of your assets at your passing. Ultimately, you are trusting your heirs to manage and use your assets properly should you pass away. If you have a sizeable insurance policy or estate or children, a trust is worth discussing with an attorney to determine the right parameters and language for your situation.
Things that estate planning can do for you.

• The goal is to help educate you on the benefits of estate planning and give you a better idea of why you should get your estate plan taken care of as soon as possible.

• Provide For Your Family: Without an estate plan in place, your family will get less and it will take them longer to get it. This means your loved ones will be left in limbo and might end up without enough money to pay bills and other living expenses. It’s not uncommon for families with an unexpected death to nearly fall apart due to the financial strain in the weeks, months, and years to come. Good estate planning will make sure that your family is provided for and not left to face financial ruin once you’re gone.

• Keep Your Children Out Of The Department of Child And Family Services.

• Minimize Your Expenses: Do you know where most of the money goes when people don’t have a good estate plan? Attorney’s fees and court costs. When you die without an estate plan (and without a living trust, in particular) the courts are forced to handle everything: the distribution of your property, the guardianship of your children, the dissolution of your business. This is known as “probate,” and it gets very expensive — easily exceeding $10,000 for even modest estates. That’s money your family and kids could’ve used for living expenses and other bills, but instead it’s just lining the pockets of your attorney.

• Get Property To Loved Ones Quickly: You have two options here.
Option 1, your family has to wait anywhere from 3-9 months to get anything after you die. Option 2, your family gets money they need to pay bills, to pay for your funeral, to pay for your outstanding medical bills, and to pay for anything else they need right away and without delay. Which one would you choose? Good estate planning let’s you avoid the big delays that can put a real financial strain on your family.

• Save Your Family From The Difficult Decisions: Can you imagine trying to decide when to pull the plug on your spouse who is in a coma or similar condition? Or deciding how his or her remains should be handled? Those are heart breaking decisions that no one should have to face. You can ease this burden by thinking about this kind of thing in advance and planning ahead for it. You can specify in your estate plan how you want end-of-life care to be handled and what kind of disposal arrangements you want made for your remains. And there’s no one better to make those decisions than you.

• Reduce Taxes: Every single dollar that you pay in taxes is one less dollar that your family will have for paying bills and other expenses. There are numerous tax reduction strategies that you can use to keep as much money in the hands of your family as possible. The key is to start tax planning sooner rather than later and definitely not to wait until it’s too late.

• Make Retirement Easier: You might be surprised to hear that estate planning can actually benefit you while you’re alive, not just your families after you’re gone. Healthcare in particular is an area where estate planning can benefit you enormously down the road by making sure you’re eligible for government benefits like Medicare (that you’ve been paying into most of your working life anyways, so you might as well get something back), that can significantly reduce your healthcare costs and leave more money to your loved ones.

• Plan For Incapacity: Estate planning is not just about death. It’s very common for people to become incapacitated by an accident or sudden medical episode like a stroke that leaves them unable to manage their financial affairs. If this happens to you, who will take care of paying your bills or managing your healthcare? A power of attorney designation for both financial and healthcare decisions can save your family a lot of time and money and make sure everything is handled according to your wishes.

• Support Your Favorite Cause: You might have heard that Mark Zuckerberg (the founder of Facebook) decided to join Bill Gates and Warren Buffet in leaving the vast majority of his fortune to charity instead of his family. Even though you don’t have billions of dollars to leave to charity, you can still make a difference by supporting your favorite educational, religious, or other charitable cause. Even if it’s just a hundred dollars, that money can help others and make a difference in their lives.

• Make Sure Your Business Runs Smoothly: If you are a small business owner, then you absolutely must have an estate plan. It’s one of the most important things you can do and is really not optional. Without one, your business will likely fall apart quickly and completely if something happens to you, and that can cause incredible financial hardship on your family. You have the opportunity to provide for an orderly transition to someone else and continue the business by spelling out what happens if you become disabled or die. Don’t do a disservice to your family by leaving these kinds of ends untied.

It seems like many people devote more time to planning a vacation, which car to buy, or even where to eat dinner than they do to estate planning deciding who will inherit their assets after they’re gone. It may not be as fun to think about as booking a trip or checking out restaurant reviews, but without estate planning, you can’t choose who gets everything that you worked so hard for. Estate planning isn’t only for the rich. Without a plan in place, settling your affairs after you go could have a long-lasting and costly impact on your loved ones, even if you don’t have a pricey home, large IRA, or valuable art to pass on.

Advanced Estate Planning

Advanced estate planning—something more than a simple will or basic living trust can be critical for people with valuable, taxable estates. It goes above and beyond a basic foundation and provides options for minimizing or even eliminating estate taxes. Advanced estate planning can be used to perpetuate family values and protect assets for the benefit of future generations.

Advanced Estate Planning Can Reduce Estate Taxes

You can reduce or even eliminate estate taxes by gifting assets into an irrevocable trust for eventual transfer to your beneficiaries or even to charities. But the trust must be irrevocable. A simple revocable trust will allow your estate to avoid probate, but the Internal Revenue Service takes the position that you still own the assets you place into such a trust. You can revoke the revocable trust entity and take the assets back at any time. You remain in control of them. Not so with a more advanced irrevocable trust. Placing assets in an irrevocable trust is a permanent decision. You’re relinquishing ownership. Someone else not you must act as trustee. But if you can’t control them and you don’t legally own them at the time of your death, they don’t contribute to your taxable estate. It doesn’t have to be an all-or-nothing deal.

If you own some significantly valuable assets that you know you want to transfer to a certain beneficiary, you can place them alone into an irrevocable trust and maintain control over your other property. Many states allow trusts to continue for hundreds of years or even into perpetuity so you can establish dynasty trusts for their current and future family members. You can also create a legacy in your community by setting up charitable trusts or a private foundation that will provide a self-perpetuating endowment for years to come.

Estate Planning Attorney Free Consultation

If you are here, you probably have an estate issue you need help with, call Ascent Law LLC 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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How Much Should I Pay For Estate Planning?

How Much Should I Pay For Estate Planning?

It really depends on your estate. Call Ascent Law LLC for your Free Consultation.

Estate planning is the process of looking at all you have and deciding what you want to do with it during your working and retirement years, as well as how you want it distributed after you die in order to minimize taxes and other fees paid by your survivors.

Typical costs

• Having a lawyer evaluate your financial and family circumstances and prepare appropriate legal documents starts around $800-$1,800 and can run $2,000-$3,500 or more, depending on complexity, location and other circumstances.

What should be included:
• The four basic estate planning tools are a will, durable power of attorney, a living will and a medical durable power of attorney (health care proxy), according to the Financial Planning Association. Other tools that might be used in planning your estate include trusts, how assets are owned, insurance and gifting. Your attorney will review your current situation and your long-term goals and needs, to help you create a plan using these tools. The goal is to maximize your financial security during your working and retirement years while setting things up so that when you die your money, property and other items will be distributed according to your wishes, and with a minimum amount of taxes and probate costs.

• The planning process should include time for you to consider and reflect on any decisions you need to make. The Utah Law warns against promoters of financial and estate planning services who pressure you into buying specific financial products or one-size-fits-all living trust kits.
• Although people prefer not to think so far ahead as their death, estate planning is a good idea for almost everyone.

Additional costs

• If you own a small business or extensive property, you might want to consult with your accountant or other financial professionals as part of the estate planning process. There could be additional charges for these services.

• Attorneys working on an hourly basis charge for any time spent answering your questions on the phone or by e-mail, as well as case related expenses such as interviews, research or photocopies. Charges are usually done in quarters or tenths of an hour; a six-minute phone conversation may be billed as 15 minutes.

• Cost: Most average Estate Plans costs approximately in the range of $1,500 – $3,000. However, they can range anywhere from a few hundred dollars to even tens of thousands depending on the quality or number of assets. For example, a person with millions of dollars to distribute may be willing to pay for hundreds of hours of legal help to make sure that money transfers properly, which is important to remember when discussing estate planning cost.

Most people have an estate because most people own something. Planning for someone’s estate consists of the ideas, goals, and plans for what he/she owns now or after they die. An estate doesn’t stay with someone when they die it has to go somewhere. If someone has a plan for their estate, those assets will benefit those whom they choose in a timely manner. While someone is living, they might need a power of attorney or medical power of attorney. The power of attorney is chosen by the estate planner and acts on the estate planner’s behalf if that person ever becomes incapacitated. A will is the estate planner’s last wishes for them and their assets. The estate planning cost can vary. If someone dies without an estate plan let alone an estimated estate planning cost, there are a few things that can happen:

Probate is a process where a state court will determine the distribution of assets; this typically happens if a deceased person does not have a will. This is a time consuming and costly process; it can take months, even years for the assets to be transferred to specific persons and typically costs your loved ones between $5,000 and $10,000 dollars to complete, which can be considered part of the estate planning cost. Joint Tenancy is the possession of assets held by more than one person. For example, if a couple have joint tenancy and a spouse dies, all of the deceased spouse’s assets would be transferred to the living spouse.

Intestate consists of rules designated to the assets that do not immediately transfer to the spouse in a joint tenancy. If someone dies without an estate plan and the living spouse still has jurisdiction over the children, then all of the assets will be transferred to the living spouse. If someone dies without an estate plan and he/she has children not legally guarded by the other spouse, the living spouse receives a fund from the deceased estate, topped off at $75,000, plus ½ of the spouse’s property; the remaining property goes to the children. If the person who dies is not married, their estate is transferred to his/her children. If the average estate planning cost $1,500, and the average probate fees cost around $8,500, then one reason for having an estate plan is obvious to save money. If someone has an estate plan, they can typically avoid probate altogether, saving thousands because they have a plan for their estate. It seems obvious: get an estate plan that includes a will and save thousands by avoiding probate, however, 63% of Americans die without a will (U.S. Legal Wills, 2017). The biggest problems are frustration, confusion, and irritation of probate. These are put upon the family and friends of the deceased person.

• Saving money: The difference between the averages of probate and an estate plan is obvious. However, it may not be that simple, because some people own many assets and it can be intimidating to go through the process of planning and accounting for everything someone owns. Knowing one’s assets will end up with the right people is one of the most important reasons for getting an estate plan.

• Estate Planning Components: The important components of an estate plan are the will and power of attorney.

• Will: Someone’s last wishes for what is going to happen to them and their assets after they die. This is a very important component for the planning of one’s estate because assets do not stay with them they die. The direct and clear plan for what is going to happen to them and their assets are included in their will.

• Trust: A pool of assets that are available to chosen beneficiaries while the creator of the trust is still living, or after they die. A trust is similar to a will in the fact that assets become available to beneficiaries at a specific time, the difference is when.

• Power of Attorney: A power of attorney is someone is who is chosen to act on behalf of the estate planner if they ever become incapacitated. This is especially important because anything can happen at any time; being prepared will prevent much frustration, confusion, and irritation.

• Health Care Directive: A durable power of attorney is selected to make medical decisions for you if you are unable or incapacitated. If someone becomes seriously ill or is in a vegetative state, a living will has instructions to stay on or withdraw from life support.

• Beneficiary Designations: The whole of one’s assets included in the estate need to be transferred after the death of the estate planner. Beneficiary designations are the locations where the assets will be transferred. Many people choose their children, spouse, or parents as the beneficiaries.

By establishing a will, you can ensure that your loved ones are cared for after your death, that your assets are distributed to your chosen beneficiaries, and that your final wishes are carried out exactly as you intend. Unfortunately, the anticipatory cost of hiring an attorney to draft a will often intimidates testators from establishing a will at all. In fact, there are many cost-effective solutions for writing a will yourself that allow you to plan for your family after your passing without forcing you to spend thousands of dollars.

Don’t Do a Will By Yourself

The least expensive way to prepare a will is to write it yourself. Using free samples you find online or following others relatives’ wills as a guide can help you for your own without forcing you to spend any money. If you are unfamiliar with your state probate laws, however, writing your own will without assistance could end up being the most costly decision of all. If your will is ruled invalid during probate, for example, the court will divide your assets following governing succession laws and your intended beneficiaries could be left with nothing.

Don’t Use Pre-Made Forms

Pre-made forms for do-it-yourself wills are now widely available both online and off; in fact, some of these resources are available at no cost. While it isn’t quite the same as hiring a professional, a pre-made form can help you create a no-frills will that meets your state probate guidelines without exceeding your budget. Sample forms can cost as little as $10 to $20 for a basic will, while complete fill-in-the-blank templates average around $100 to $500, depending on the complexity of your personal circumstances.

Estate plans aren’t cheap. But exactly how much you’ll spend depends on a multitude of factors, the complexity of your overall needs, the experience of the attorney involved, and your geographic location, since costs can vary greatly across various regions. Fortunately, however, there are steps that consumers can take to better understand, and consequently reduce, potential estate planning costs.

• Understand What You Need: Before you begin the estate planning process, has a sense of what you need. It can be helpful to talk to your financial advisor or to do some reading on estate planning so you understand the basics before you move forward. At minimum, you’ll want an advance directive for health care, a durable power of attorney, and a will. Many people also want or need trusts. For most of these documents, you’ll need an attorney to make sure they are properly prepared and implemented.

• Talk Money Up Front: Even before an initial meeting, contact any potential estate planning attorney to determine how he or she charges. Attorneys may charge by the hour or offer a flat-fee service. If the attorney charges by the hour, ask what the applicable hourly rate is, and get a sense of how long it will take; a lawyer should be able to give a general range for estate plans that cover what you and your family need. Ask attorneys whether they offer a free consultation. Some will, others won’t. And some attorneys may charge for a consultation, but then apply that amount to the ultimate fee if you decide to go forward.

• Understand Flat Fees: Flat fees can be advantageous because they provide certainty and let you understand how much the estate planning process will cost you. Make sure you understand what is included in the fee, however, and what is not. For example, a flat fee may only apply if the estate plan is completed within a certain period of time (say, six months); typically it includes only a certain number of meetings or a certain number of changes to critical documents once they are prepared. Flat fees also usually depend upon the type and number of documents that make up your estate plan. As you can imagine, the greater the number of documents you need, the more complex the estate plan becomes and the higher flat fee you’ll pay.

• Choose the Right Attorney: The qualities that matter most here are experience and rapport. Generally speaking, you want an attorney who has experience dealing with situations similar to your own, so don’t be afraid to ask specific questions in this regard.

As for rapport: Because estate planning involves discussions of family relationships, finances, and mortality, it’s important to choose someone with whom you feel comfortable disclosing these details. If you don’t communicate all pertinent information to your attorney, you could wind up with a flawed estate plan, leaving beneficiaries either too much or too little access to assets. Remember that you don’t always want the cheapest option. A skilled estate planning attorney may charge a higher price, but end up saving you money in the long run. If you become ill at some point and need help managing your finances, a good estate plan can ensure this happens in a cost-efficient manner, obviating the need for a court-appointed guardianship or conservatorship. (These can cost thousands of dollars to implement and maintain, easily outweighing the cost of an estate plan.) A proper estate plan may also end up saving thousands of dollars for your family in probate costs.

• Come Prepared and Decisive: Before your first meeting, ask your attorney what documents and information you need to bring to your meeting. The less time your attorney needs to spend gathering information, the less money you’ll ultimately end up spending. Changing your mind once the documents are drafted can increase fees, so be prepared from the outset to answer pointed questions. Who will make your health care decision if you’re incapacitated? Who should be the guardian of your children? Who should manage the assets for your children? How do you want to leave assets to your children? As a general rule, the more time that passes from the beginning to the end of the estate planning process, the higher the fees tend to be. So the more quickly you can make decisions and have your documents finalized, the less time the attorney will need to spend refreshing his or her recollection of your specific situation because too much time has passed between meetings. The cost of estate planning may seem intimidating, but don’t let it deter you. Remember that estate plans are critical to your assets and your family. Practicing these recommendations will not only make your estate plan more attainable, but can secure the future of your family and property.

Estate Planning Attorney Free Consultation

When you need legal help with estate planning 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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Brandon M. Evans, Esq.

Brandon M Evans

Brandon M. Evans, Esq.
Attorney and Counselor at Law

When Brandon was admitted to the Utah Bar he fulfilled a dream whose inception began in his youth as a result of learning of the Founding Fathers and the Constitution. He is also admitted to the District of Columbia, Washington DC, Bar. While very grateful that he was able to fulfill this dream. Whether you are working to build, protect, or salvage your dream, Brandon can help you.

Whether you are getting married, getting un-married, creating a new business, defending your business, selling or ending your business, dealing with criminal concerns, planning your estate, seeking permanent immigration status, or recouping damages, Brandon will negotiate and litigate for you and your dreams.

Other dreams that Brandon enjoys creating and fulfilling are spending time doing activities: woodworking, gardening, board games, camping, and reading. Brandon loves that his wife and three children also enjoy those activities.

Brandon enjoys the following areas of legal practice:

  • Family Law (Child Custody, Mediation, Litigation, Parenting Plans, Divorce, Adoptions, Annulment)
  • Contract Law (drafting and litigation)
  • Criminal Defense (federal and state cases, including DUI, Theft, Domestic Violence, etc.)
  • Business Formations (LLC, Corporations, Partnerships, etc.)
  • Business Representation (Lawsuits and Litigation)
  • Real Estate (Quiet Title Actions, Evictions, etc)
  • Estate Planning and Probates (Wills, Trusts, including formation and administration, both contested and uncontested)
  • Tax Matters (IRS and Utah State Tax Commission)
  • Personal Injury Law (Car Accidents, Motorcycle Accidents, Dog Bites, Slip and Falls)
  • Collection Issues (collections; Fair Debt Collections Practices Act, etc.)
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

Additional Information

Contract Lawyer

Real Estate Lawyer

Business Lawyer

Estate Planning Lawyer

Divorce Lawyer

Criminal Lawyer

Injury Lawyer

Types of Trusts

Types of Trusts

trust can be created during a person’s lifetime and survive the person’s death. A trust can also be created by a will and formed after death. We’ve provided a basic overview of trustshere. Once assets are put into the trust they belong to the trust itself, not the trustee, and remain subject to the rules and instructions of the trust contract. Most basically, a trust is a right in property, which is held in a fiduciary relationship by one party for the benefit of another. The trustee is the one who holds title to the trust property, and the beneficiary is the person who receives the benefits of the trust. While there are a number of different types of trusts, the basic types are revocable and irrevocable.

Revocable Trusts

We talk more in depth on revocable trusts on this page.

Revocable trusts are created during the lifetime of the trustmaker and can be altered, changed, modified or revoked entirely. Often called a living trust, these are trusts in which the trustmaker transfers the title of a property to a trust, serves as the initial trustee, and has the ability to remove the property from the trust during his or her lifetime. Revocable trusts are extremely helpful in avoiding probate. If ownership of assets is transferred to a revocable trust during the lifetime of the trustmaker so that it is owned by the trust at the time of the trustmaker’s death, the assets will not be subject to probate.

Although useful to avoid probate, a revocable trust is not an asset protection technique as assets transferred to the trust during the trustmaker’s lifetime will remain available to the trustmaker’s creditors. It does make it more somewhat more difficult for creditors to access these assets since the creditor must petition a court for an order to enable the creditor to get to the assets held in the trust. Typically, a revocable trust evolves into an irrevocable trust upon the death of the trustmaker.

Irrevocable Trust

An irrevocable trust is one which cannot be altered, changed, modified or revoked after its creation. Once a property is transferred to an irrevocable trust, no one, including the trustmaker, can take the property out of the trust. It is possible to purchase survivorship life insurance, the benefits of which can be held by an irrevocable trust. This type of survivorship life insurance can be used for estate tax planning purposes in large estates, however, survivorship life insurance held in an irrevocable trust can have serious negative consequences.

Asset Protection Trust

An asset protection trust is a type of trust that is designed to protect a person’s assets from claims of future creditors. These types of trusts are often set up in countries outside of the United States, although the assets do not always need to be transferred to the foreign jurisdiction. The purpose of an asset protection trust is to insulate assets from creditor attack. These trusts are normally structured so that they are irrevocable for a term of years and so that the trustmaker is not a current beneficiary. An asset protection trust is normally structured so that the undistributed assets of the trust are returned to the trustmaker upon termination of the trust provided there is no current risk of creditor attack, thus permitting the trustmaker to regain complete control over the formerly protected assets.

Charitable Trust

Charitable trusts are trusts which benefit a particular charity or the public in general. Typically charitable trusts are established as part of an estate plan to lower or avoid imposition of estate and gift tax. A charitable remainder trust (CRT) funded during the grantor’s lifetime can be a financial planning tool, providing the trustmaker with valuable lifetime benefits. In addition to the financial benefits, there is the intangible benefit of rewarding the trustmaker’s altruism as charities usually immediately honor the donors who have named the charity as the beneficiary of a CRT.

Constructive Trust

A constructive trust is an implied trust. An implied trust is established by a court and is determined from certain facts and circumstances. The court may decide that, even though there was never a formal declaration of a trust, there was an intention on the part of the property owner that the property be used for a particular purpose or go to a particular person. While a person may take legal title to property, equitable considerations sometimes require that the equitable title of such property really belongs to someone else.

Special Needs Trust

A special needs trust is one which is set up for a person who receives government benefits so as not to disqualify the beneficiary from such government benefits. This is completely legal and permitted under the Social Security rules provided that the disabled beneficiary cannot control the amount or the frequency of trust distributions and cannot revoke the trust. Ordinarily when a person is receiving government benefits, an inheritance or receipt of a gift could reduce or eliminate the person’s eligibility for such benefits.

By establishing a trust, which provides for luxuries or other benefits which otherwise could not be obtained by the beneficiary, the beneficiary can obtain the benefits from the trust without defeating his or her eligibility for government benefits. Usually, a special needs trust has a provision which terminates the trust in the event that it could be used to make the beneficiary ineligible for government benefits.

Special needs has a specific legal definition and is defined as the requisites for maintaining the comfort and happiness of a disabled person, when such requisites are not being provided by any public or private agency. Special needs can include medical and dental expenses, equipment, education, treatment, rehabilitation, eye glasses, transportation (including vehicle purchase), maintenance, insurance (including payment of premiums of insurance on the life of the beneficiary), essential dietary needs, spending money, electronic and computer equipment, vacations, athletic contests, movies, trips, money with which to purchase gifts, payments for a companion, and other items to enhance self-esteem. The list is quite extensive.

Parents of a disabled child can establish a special needs trust as part of their general estate plan and not worry that their child will be prevented from receiving benefits when they are not there to care for the child. Disabled persons who expect an inheritance or other large sum of money may establish a special needs trust themselves, provided that another person or entity is named as trustee.

Spendthrift Trust

A trust that is established for a beneficiary which does not allow the beneficiary to sell or pledge away interests in the trust is known as a spendthrift trust. It is protected from the beneficiaries’ creditors, until such time as the trust property is distributed out of the trust and given to the beneficiaries.

Tax By-Pass Trust

A tax by-pass trust is a type of trust that is created to allow one spouse to leave money to the other, while limiting the amount of federal estate tax that would be payable on the death of the second spouse. While assets can pass to a spouse tax-free, when the surviving spouse dies, the remaining assets over and above the exempt limit would be taxable to the children of the couple, potentially at a rate of 55 percent. A tax by-pass trust avoids this situation and saves the children perhaps hundreds of thousands of dollars in federal taxes, depending upon the value of the estate.

Totten Trust

A Totten trust is one that is created during the lifetime of the grantor by depositing money into an account at a financial institution in his or her name as the trustee for another. This is a type of revocable trust in which the gift is not completed until the grantor’s death or an unequivocal act reflecting the gift during the grantor’s lifetime. An individual or an entity can be named as the beneficiary. Upon death, Totten trust assets avoid probate. A totten trust is used primarily with accounts and securities in financial institutions such as savings accounts, bank accounts, and certificates of deposit. A Totten trust cannot be used with real property. A Totten Trust provides a safer method to pass assets on to family than using joint ownership.

To create a totten trust, the title on the account should include identifying language, such as “In Trust For,” “Payable on Death To,” “As Trustee For,” or the identifying initials for each, “IFF,” “POD,” “ATF.” If this language is not included, the beneficiary may not be identifiable. A Totten trust has been called a “poor man’s” trust because a written trust document is typically not involved and it often costs the trustmaker nothing to establish.

Create a Trust Today

Forming a trust is a great way to protect your family’s assets and to make sure loved ones are secure. You may decide that the complexity required for such a trust would benefit from the advice of an estate planning lawyer. Get ahead of the curve and get some peace of mind for your family by calling
Ascent Law today.

Free Consultation with a Utah Estate Planning Attorney

If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

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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