We are what we own. However when the times comes to go, we have to leave our possessions behind and go. What happens to our possession after we are dead? Do our family members get to enjoy them? It all depends on what planning you did during your life time. Speak to an experienced Provo Utah probate lawyer to know how you can ensure that your family members get to enjoy your assets after your death.
When you die, the law of Utah, the state where you live—your legal residence—provides that ownership of all your assets is transferred to your estate. This transfer is automatic; there is nothing you can do about it (except to give some of your assets away prior to death so that the estate will be smaller). Your estate is a fictitious person, more or less like a corporation. The next step, established by law, is that someone—the “executor” of the estate—is required by law to write the checks to pay your debts and taxes and to transfer the legal titles to the assets that are now in your estate to the individuals and charities that you have designated. The transfer of the assets will follow the terms of your will—if you have one. If you don’t have a will, then the transfer will follow the procedures in the state of Utah where you had your legal domicile.
Perhaps the most basic distinction is between real property and personal property. Real property is land and things permanently attached to the land. (Thus the origin of terms such as “real estate” and “Realtor.”) Personal property is everything else. Furniture, jewelry, and cars are personal property, but so are intangibles such as copyrights, patents, promissory notes, and stocks and bonds. Some types of property present difficult definitional issues–growing crops are sometimes real property, sometimes personal property–but for the most part the distinction between real and personal property is easy to understand.
There is perhaps nothing more difficult than to give a precise and consistent meaning to the word ‘property’. The word ‘estate’ is often used to denote the whole of a man’s proprietary rights, more especially after his death. This sense of the word ‘estate’ must not be confused with the special meaning which it has in regard to interests in land. When we speak of a man of property, we may perhaps think in one of two ways. First, we may think of the traditional or even old-fashioned type of man with tangible material things which belong to him–land and houses, horses and cattle, furniture and jewelry and pictures– things which he may use or destroy (so far as that is physically possible); from which he may exclude others; which he may sell or give away or bequeath; which, if he has made no disposition of them, will pass on his death to persons related to him. Alternatively we may think of the more modern figure of a man whose wealth lies in his investments in stocks and shares. Whichever type of man we think of, we may find it difficult to say whether by ‘property’ we mean the things themselves or the aggregate of rights which are exercised over them. To confine the word to either sense would hardly be possible without pedantry; though on the one hand we may agree that a thing which has no owner–a rare event in a civilized country, except in the case of a few things, like wild animals at large–is not property, and on the other we may often avoid confusion by using the word ‘ownership’ for the most extensive right which a man can have over material things. But, further, we shall find that our conception of property relates to many things which are not tangible or material. Our man of property may be an author or a patentee, and we shall hardly be able to say that his copyright or patent right is not part of his property, or even to avoid speaking of his ownership of the copyright or patent. He will have debtors: his bank is a debtor to him for the amount standing to his credit; his investments of money are claims to receive payment from the State or from corporations or individuals. Such debts and claims are not rights over any specific tangible objects; they are mere rights against the State or the corporation or the person liable to pay. Yet these rights are transferable, and will pass on his death to his representatives.
We cannot exclude them from our notion of property or deny that in a sense, at any rate, he is the owner of them. On the other hand his ‘property’ clearly does not include all his rights. To say nothing of his general right of liberty or reputation, his rights as a husband or a parent are not proprietary rights, nor is his right to recover damages for personal injury or defamation; but we may include among proprietary rights the right to recover damages though unliquidated (i.e. of uncertain amount until settled by a judge or jury) for breach of contract, or probably even for injury to his property. Generally speaking we shall include under the notion of a man’s property in its widest sense all rights which are capable of being transferred to others, of being made available for payment of his debts, or of passing to his representatives on his death.
Ownership and possession
Turning to rights over tangible things, we must notice the distinction between ownership and possession. The owner of a thing is the person who has, in the fullest degree, those rights of use and enjoyment, of destruction, and of disposition, which have been mentioned above–subject of course to the general rules of law which protect the rights of others, to certain limited rights which he or his predecessors may have created in favor of others, and in the case of land to rules imposed by statute under which local and other authorities may purchase property compulsorily. The owner of a firearm is none the less owner because the law prohibits him from discharging it in a public highway; the owner of a field does not cease to be owner because the public or a neighbor has the right to use a footpath across it.
The main goals of estate planning are to ensure that the individual’s wishes are carried out, to minimize problems for the survivors, and to reduce estate taxes. The legal documents used to accomplish these goals include a durable power of attorney, a will, and, for some patients, a trust. Estate planning usually requires the services of an expert – an experienced Provo Utah probate lawyer.
You’ve worked hard all your life for your money, and you’ve worked hard at taking care of it. But do you really know what will happen to what you’ve accumulated after you die?
The fact is, if you don’t plan properly now, your estate could be eroded by estate taxes. And subjecting your estate to probate – the legal process through which the court ensures that upon your death, your debts are paid and your property is distributed according to your will – may mean additional costs and delays in transferring assets to your heirs. So, if you want your estate to go to your heirs instead of to the IRS, plan carefully now.
There are three main objectives of estate planning. The first is to reduce estate expenses and taxes. The next objective is to make provisions in advance for meeting these expenses so that your estate is not forced to liquidate assets at a distress price. The third objective of estate planning is to ensure that the remaining assets are distributed to your heirs in orderly manner and according to your wishes. Estate planning is essential since the first payments made from an estate are for estate expenses and estate taxes; your heirs actually receive what is left.
Many people believe a will is the best way to plan for the distribution of their estates, but this is not always true. A will does not avoid probate, and, because a will can go into effect only after you die, it provides no protection for you and your heirs if you become disabled.
What is so bad about probate?
The probate process can be an expensive and time-consuming process, depending on the state where you live. Probate costs, which must be paid from your estate before anything can go to your heirs, are generally estimated at 5 percent of an individual’s gross estate value and can be even higher in some cases. The probate process can take at least one to two years.
During probate your family loses control of your estate, as well as privacy. The probate process – not your family – has control, and your assets may be tied up until this process is completed. Additionally, probate fields are open to the public, so anyone can get information about your assets and liabilities.
Fortunately, there is an alternative to wills and probate. It’s call the revocable living trust. It avoids probate and ensures your estate plan won’t be altered by the court or legal technicalities in the event of your death or disability.
What is a living trust?
If you establish a trust during your lifetime, it is calling “living” trust. It’s a legal document similar to a will but offers much more. When you set up a living trust, you simply transfer most of your assets from your individual name to the name of your trust, which you control. Since there is no probate process with a living trust, upon your death, your assets are transferred to your heirs. All expensive court proceedings and delays are eliminated, your privacy is preserved, and the emotional stress on your family is minimized.
If you have a modest estate and your trust is fairly simple, you may be just fine as your own trustee. But if your estate is larger, has a variety of assets or requires tax planning, you should probably consider having a professional trustee involved.
Most people select a corporate trustee as their successor or co- trustee, especially if they don’t have the time, ability or desire to manage their own trust, or if one or both spouses are in declining health. Corporate trustees are in the business of managing trusts – they’re experienced investment managers and trained to be objective. their fees are generally competitive and if something happens to you, your corporate trustee will continue to manage your trust for you according to your instructions. If you and your spouse are co-trustees, either can act and instantly take control if one becomes disabled or dies.
If you die or become incapacitated, or if you are the only trustee, the trustee you selected can automatically step in and take over for you. This successor trustee looks after your care and manages your financial affairs for as long as necessary, using your assets to pay your expenses.
How is a living trust established?
You make the basic planning decision – inventory your property, decide who will be your beneficiaries, select your successor trustee, name a trustee and guardian for minor children, etc. Your attorney then prepares the actual legal document that addressed your specific needs. You sign the trust document, it is notarized, and then you change most of your property titles to reflect the name of your trust. You should also change beneficiary designations on appropriate assets.
Speak to an experienced Provo Utah probate lawyer
Seek an appointment with an experienced Provo Utah probate lawyer today to know how you can develop an estate planning device that can help your family members enjoy your assets without having to go through probate. Sometimes, your best option may be a will. Every will in Utah must pass through probate. An experienced Provo Utah probate lawyer can help you get a will probated.
Provo Utah Probate Attorney Free Consultation
When you need legal help with a case about probate in Provo Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We do probate, estate planning, estate representation, estate administration, last will and testaments, powers of attorney, health care directives and so much more. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506