What Does An Executor Have To Disclose To Beneficiaries?

What Does An Executor Have To Disclose To Beneficiaries

When you’re serving as executor, the single best way to avoid problems with beneficiaries is to keep them informed about the process and make your actions as transparent as possible. Let people know what you’re doing, and what the court requires you to do. Probate is a mysterious process to most people after all, it’s something most of us experience only a time or two, when a parent or spouse dies. The executor, charged with safeguarding assets, paying bills, and distributing property, has the greatest responsibility. But the process can produce anxiety in other family members, too.

Often they are unsure about what’s happening, reluctant to ask the executor, and confused by the legal documents that may come their way. If you’re the executor, the beneficiaries’ anxiety can come back to haunt you in a big way. If they convince themselves that you’re doing a bad job as executor or that you’re dishonestly depriving them of their inheritances you could even end up with a costly, nasty court battle. Even if resentments simmer without actually boiling over into a lawsuit, the damage can still be severe: strained relationships and mistrust that never go away. To keep beneficiaries from worrying (and complaining), don’t wait for them to come to you. When you take on your executor’s responsibilities, starting with filing the will and securing estate property, let everyone know. Tell them that they will named you as executor (or if there’s no will, that you’re willing to take on the job and have priority under state law) and that you’ll be gathering property, paying bills and taxes, and eventually distributing property to the people who inherit it. If you know that a formal probate proceeding will be required, let them know that, too, and give them an idea of the time frame. If certain property can be transferred without probate, explain that, too. If you’re working with a lawyer, let them know. Email is often an easy way to contact groups of people and make sure everyone gets the same information. The key is simply to let people know what to expect.

Requests to See the Will

If someone wants to see a copy of the will, produce it promptly. Once the will is deposited with the court—which you should do whether or not you actually file a probate case later—it’s a public record anyway, available to anyone who wishes to see it.

Questions About Delays

Beneficiaries often complain that probate takes too long. It’s hard to blame them, because it does take a long time before they can actually receive their inheritances. But it’s not the executor’s fault. You’ll probably need to explain (or remind them, if you’ve already communicated it) that hard as it may be to believe, that once you file the probate case and publish notice of it in the local newspaper, the law requires you to do nothing for a period of months. The waiting period, which varies by state but is typically four to six months, is to give creditors time to hear about the death and come forward with their claims. If they don’t, they’re out of luck after the waiting period ends.

Requests for Property from the Estate

For example, say your brother really wants to take your late father’s car—after all, it’s just sitting in the garage, not useful to anyone and in need of an oil change anyway. But you’ve just filed the papers to get the probate case started. Don’t just tell your brother no; explain that at least until you get the estate inventoried and valued, you can’t let anyone take anything. It’s part of your fiduciary responsibility as executor; you are required by law to make sure there’s enough money to pay the bills before you start giving out property to beneficiaries. If you can get your brother to understand that this isn’t a personal rule, made by you and applied just to him, you have a much better shot at heading off hurt feelings. Contrary to scenes you might have seen enacted on television or in the movies, there’s really no such thing as a “reading of a will.” There’s no legal requirement that a last will and testament must be read aloud to anyone. The executor or personal representative of the estate determines who is entitled to receive a copy and who should be sent a copy even if state law doesn’t require it.

Locating the Will

It doesn’t always happen that family members can immediately locate a decedent’s last will and testament, yet everything begins with this document. Logical places to look include safe deposit boxes and anywhere the decedent was fond of filing away personal papers. The decedent’s lawyer might have kept a copy if he drafted the document. If you don’t know who that lawyer is, consider placing a notice in the local newspaper. You can also check with the probate court. Some states allow individuals to file their own wills before their deaths for safekeeping. Many states require that the individual in possession of the will must file it with the probate court when it’s located. Ideally, the document will name the individual the decedent wanted to act as executor of her estate. Once filed, the will is a matter of public record. Anyone can see it. Interested parties can also usually learn the name of the executor by getting a copy of the death certificate from the county registrar. They can then request a copy of the will if they haven’t yet received one or if it’s not yet available for viewing in the court system. This leaves a somewhat long list of who should receive a copy.

The Executor Named in the Will

Obviously, the executor must have a copy of the will. He’s responsible for settling the deceased’s estate according to its terms. He must review it to understand who the beneficiaries are and to learn of any special restrictions or instructions that might exist about their shares of the estate. Many wills also determine what powers should be granted to the executor, sometimes called a personal representative, when he’s settling the estate. They might detail what type of compensation he’s entitled to receive for carrying out all the fiduciary responsibilities involved in the probate process.

The Beneficiaries Named in the Will

All beneficiaries named in a will are entitled to receive a copy of it so they can understand what they’ll be receiving from the estate and when they’ll be receiving it. If any beneficiary is a minor, his natural or legal guardian should be given a copy of the will on his behalf.

Heirs at Law and/or Prior Beneficiaries

If the executor or the estate attorney anticipates that anyone will file a will contest to challenge the validity of the will, he might send copies to any heirs at law of the deceased who aren’t named in the will. He might also want to provide copies to any beneficiaries named in a previous will if there is one. Heirs at law are individuals who are so closely related to the decedent that they would have inherited from her if she had not left a will. All states have prescribed lists detailing who these people are. They commonly begin with a surviving spouse, if any, then children, grandchildren, and outward to more distant relatives in an ever-widening arc. More distant relatives typically do not inherit unless all those who precede them in line are also deceased. Providing copies of the will to all these people can help to limit the amount of time that any disinherited beneficiaries or heirs have to challenge the will. In many states, it starts the clock ticking toward the deadline by which they must do so.

The Accountant for the Estate

The accountant for the estate must receive a copy of the will if one is appointed. He must understand any instructions the will gives for paying off the debts of the estate. He must also deal with the apportionment of any estate and income taxes, instructions on the allocation between estate income and principal, and when and if estate accountings must be given to the beneficiaries and filed with the probate court. He must know what powers the executor has in settling and compromising creditor claims filed against the estate.

The Successor Trustee of a Revocable Living Trust

The last will and testament might be a “pour-over will.” This type of will often comes into play when the deceased had a revocable living trust that was not completely funded prior to his death — not all his assets had been placed into the trust’s ownership. This type of will simply directs that any property left outside the trust should be moved into the trust at his death. A pour-over will also require a probate proceeding, and the successor trustee the individual named to manage the trust after the owner’s death — must receive a copy of the will. It should explain how the executor and the successor trustee should work together to settle the trust and the probate estate. It sometimes happens, however, that successor trustee and the executor are the same person.

The IRS and the State Taxing Authority

If the estate is taxable for federal or state estate tax purposes, a copy of the will must also be submitted to the Internal Revenue Service and to the applicable state taxing authority. It should accompany the filings of any estate tax returns.8

Wills Are Public Record

Remember that a will becomes a public record for anyone to see and read when it’s filed for probate with the state court. The beneficiaries of the will can request that the probate judge seal the court records to prevent the general public from viewing it under certain circumstances. When you’ve been chosen to act as the trustee of a trust, you must handle both money and people. You might be more worried about the financial part, but the people may prove to be the greater challenge. Your job as trustee will be infinitely easier (and you’ll be far more effective) if, right from the start, you have cordial dealings with the trust beneficiaries — the people who benefit from the trust money. Most beneficiaries are unfamiliar with the trust administration process and anxious about their lack of control. This combination is the perfect recipe for fear and paranoia. You may be doing everything right from a technical standpoint, but if the beneficiaries don’t know what you’re doing or why you’re doing it you’re not likely to get their cooperation or support. And, without it, your job is likely to take longer and be more difficult than it needs to be.
The best way to relieve beneficiaries’ concerns is to:
• get in touch with the beneficiaries early
• educate them about your role
• help them to form realistic expectations of how long it will take to administer the trust
• treat their questions as opportunities to engage them (rather than as annoying intrusions), and
• don’t hide the trust document or assets from them.
You are required (by law) to keep beneficiaries reasonably informed about how trust assets are being managed. Some states require you to send specific kinds of notices and information to the beneficiaries on a regular basis. Think of these requirements as the minimum you should do. You’ll do better if you exceed these requirements and make sure that all the beneficiaries know exactly what the trust owns and what you’re doing with the assets. The more transparency there is during a trust administration, the happier the beneficiaries should be. If the beneficiaries all live nearby, a good way to start might be to call a family meeting and sit down together to go over the process of trust administration. You can answer beneficiaries’ basic questions about the trust and its terms and give them an overview of what must happen before you can hand over the trust assets to them. Limit the scope of the meeting to a discussion of what the trust instrument says and how trust administration works. The attorney who’s helping you in your role as trustee can also be at that first meeting (for more about whether you should hire an attorney. The attorney can answer questions about the trust and your responsibilities. But beneficiaries need to understand that the lawyer is there to represent you in your capacity as trustee and that the attorney cannot give the beneficiaries legal advice. Unhappy beneficiaries can get their own attorneys to help them advocate for them in the trust administration process though if you keep them informed and engaged, they shouldn’t need to. If a face-to-face gathering isn’t practical, send each beneficiary a letter to notify them that you are the trustee, give your contact information, and provide an overview of the trust administration process. This letter should be in addition to whatever notices your state law requires. Whenever you take an action as trustee or discover information that affects the beneficiaries, be sure to let the beneficiaries know about it. You have a legal duty to give the beneficiaries information that they might need to protect their interests. You’ll be providing regular written reports (called “accountings”) that detail all financial transactions, but it’s a good idea to keep informal lines of communication open, too. A short email that tells the beneficiaries that you’ve gotten an offer on some trust real estate you want to sell or the troubles you’ve been having with liquidating a brokerage account will let the beneficiaries know what’s happening and that you’re keeping them in mind. If you think a beneficiary might second-guess you in the future for example, you want to sell some stock owned by the trust but know a beneficiary wants to hang onto it — it might be prudent to go a step further and ask for the beneficiaries’ approval before you act. In most states, if beneficiaries consent in writing to a proposed activity, they can’t later sue you if the decision turns out to have been a mistake. If a beneficiary objects to something you’ve proposed, you can go to the local court and ask the judge what to do. In some states, beneficiaries have the right to see a copy of the trust document itself. In other states, beneficiaries don’t have a legal right to see the whole trust instrument, so if you wish, you can give them only enough information for them to safeguard their interests. You might decide to disclose only the provisions that apply directly to a particular beneficiary. In many cases, such as when all siblings are receiving an equal share of the trust it may make sense to give each one a full copy of the trust instrument itself, even if it’s not required by state law. But in some situations, sharing the whole trust document with all the beneficiaries can trigger bad feelings. If one beneficiary’s share is being kept in a trust because of that beneficiary’s past inability to manage money, or if one beneficiary is receiving more than others, you might not want to offer the entire trust instrument. You can provide it if a beneficiary asks you for it. It’s quite common to be both a trustee and a beneficiary of a trust. The surviving spouse, for example, is almost always the successor trustee and beneficiary of a family trust. And it’s quite common for one adult child to be the trustee and all the siblings to be beneficiaries of their parents’ trusts. This can be a difficult position because, as the trustee, it’s your job to be fair to everyone and never to benefit yourself at another beneficiary’s expense. If you’re in this position, don’t be sloppy just because everything’s in the family. When it comes to record keeping and decision making, pretend you don’t know the beneficiaries — treat them as you would strangers, not your siblings or children. That means being sure to:
• keep very good records
• never use trust assets for your own use, and
• if you pay yourself compensation, be prepared to justify what you’ve charged and what services you provided to the trust.

Beneficiary Lawyer

When you need legal help with beneficiary law, probate, and trust law 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 Probate Code 75-2-702

Utah Probate Code 75-2-702

Requirement of survival by 120 hours–Under probate code or governing instrument Co-owner Exceptions Protection of payers, third parties, and bona fide purchasers’ Personal liability of recipient. Except as provided in Subsection (4), an individual who is not (1) established by clear and convincing evidence to have survived an event, including the death of another individual, by 120 hours is considered to have predeceased the event. Except as provided in Subsection (4), for purposes of a (2) provision of a governing instrument that relates to an individual surviving an event, including the death of another individual, an individual who is not established by clear and convincing evidence to have survived the event by 120 hours is considered to have predeceased the event.

Except as provided in Subsection (4), if: it is not established by clear and (a) convincing evidence that one of two co-owners with right of survivorship survived the other co-owner by 120 hours, 1/2 of the property passes as if one had survived by 120 hours and 1/2 as if the other had survived by 120 hours;  and there are more than two co-owners and it (b) is not established by clear and convincing evidence that at least one of them survived the others by 120 hours, the property passes in the For the proportion that one bears to the whole number of co-owners. purposes of this subsection, “co-owners with right of survivorship” includes joint tenants, tenants by the entireties, and other co-owners of property or accounts held under circumstances that entitles one or more to the whole of the property or account on the death of the other or others.

Survival by 120 hours is not required if: the governing instrument contains language (a) dealing explicitly with simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case; the governing instrument expressly (b) indicates that an individual is not required to survive an event, including the death of another individual, by any specified period or expressly requires the individual to survive the event by a specified period;  but survival of the event or the specified period shall be established by clear and convincing evidence; the imposition of a 120-hour requirement (c) of survival would cause a non-vested property interest or a power of appointment to fail to qualify for validity under Section 75-2-1203 or to become invalid under Section 75-2-1203 ;  but survival shall be established by clear and convincing evidence;  or the application of a 120-hour requirement (d) of survival to multiple governing instruments would result in an unintended failure or duplication of a disposition;  but survival shall be established by clear and convincing evidence. A payer or other third party is not liable for having made (5)(a) a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument who, under this section, is not entitled to the payment or item of property, or for having taken any other action in good faith reliance on the beneficiary’s apparent entitlement under the terms of the governing instrument, before the payer or other third party received written A payer or notice of a claimed lack of entitlement under this section. Other third party is liable for a payment made or other action taken after the payer or other third party received written notice of a claimed lack of entitlement under this section. Written notice of a claimed lack of (b) entitlement under Subsection (5)(a) shall be mailed to the payer’s or other third party’s main office or home by registered or certified mail, return receipt requested, or served upon the payer or other third party Upon receipt of in the same manner as a summons in a civil action. written notice of a claimed lack of entitlement under this section, a payer or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent’s estate, or if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to the decedent’s The court estates located in the county of the decedent’s residence. Shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the Payments, transfers, or deposits made to or with the determination. Court discharge the payer or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.

A person who purchases property for value and without (6)(a) notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment But a person who, not or the value of the item of property or benefit. for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section. If this section or any part of this (b) section is pre-empted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not pre-empted.

Requirement That Heir Survive Decedent

In addition to determine who potential heirs might be, certain states have strict survival requirements in order for heirs to inherit their shares of the intestate decedent’s estate. I thought I would take this opportunity to discuss more in depth this requirement, and how it typically takes shape. In many states (including Alaska, California, Texas, Kentucky, Wisconsin, etc.), it is required that the relevant potential heir survive the decedent by at least 120 hours–5 full days– in order to be considered an heir entitled to inherit (remember heirs are determined at the time of the decedent’s death, prior to that time the class of people we think might be heirs are referred to as heirs apparent). The reality of the 120 hour requirement, then, is that if the heir apparent fails to survive the decedent by even 119 hours, then they are not entitled to the share. What this means in practice, is that the share merely passes on to the next relevant heir. So, for example, if the person who fails to survive is the child of the decedent, then their share would merely pass to their children (or issue). The main potential downside is that the heir apparent cannot utilize their estate plan in determining what they leave to their heirs, or other beneficiaries. In any case, however, the heirs down the line will still be entitled to shares according to their relationship to the decedent.

State’s Express Intent to Avoid Escheat

This is the only explanation I can think of to explain why the Probate Code goes to great lengths detailing the order of intestate heirs, which includes predeceased spouse’s children, parents, or siblings. Additionally, even when it comes to the survival requirement, the state is willing to waive the requirement if it means the potential for escheat: The requirement of this section that a person who survives the decedent must survive the decedent by 120 hours does not apply if the application of the 120-hour survival requirement would result in the escheat of property to the state…Thus, it can be the case that the failure to survive the decedent by more than even 1 hour is sufficient enough if the only other alternative is the escheat of the property to the state. Therefore, it is more accurate to categorize this type of statute as one that attempts to streamline the process of determining heirs. If there are additional heirs, then the estate will pass to them should the 120 hour survival requirement not be fulfilled. Absent additional heirs, the buck stops with the heir apparent who failed to survive the decedent by 120 hours.

Uniform Simultaneous Death Act

The Uniform Simultaneous Death Act is a uniform act enacted in some U.S. states to alleviate the problem of simultaneous death in determining inheritance. The Act specifies that, if two or more people die within 120 hours of one another, and no will or other document provides for this situation explicitly, each is considered to have predeceased the others. However, the Act contains a clause that states if the end result would be an intestate estate escheating to the state, the 120-hour rule is not to be applied. The Act was promulgated in 1940, when it was adopted by all 48 then-existing states. It was last amended in 1993. As of 2010, 19 states (Alaska, Arizona, Arkansas, Colorado, Hawaii, Kansas, Kentucky, Massachusetts, Montana, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, South Dakota, Utah, Virginia, and Wisconsin), as well as the District of Columbia and the Virgin Islands have explicitly adopted the Act in its current version. A number of other states have indirectly adopted the Act as part of the Uniform Probate Code. The Act primarily helps to determine the heirs of a person who has died intestate. The 120-hour period is intended to simplify estate administration by preventing an inheritance from being transferred more times than necessary.

Survivorship Periods in Wills and Trusts

A “survivorship period” is a standard feature of many wills and trust documents. A survivorship clause states that beneficiaries named in the document cannot inherit unless they live for a specific amount of time after the will- or trust-maker dies. This time is called a survivorship period, and commonly ranges from about five to 60 days. For example, a will might state that “a beneficiary must survive me for 45 days to receive property under this will.” It’s unusual to see a survivorship period longer than 60 days. If a survivorship period is more than 120 days, it could jeopardize the estate-tax-free transfer of assets from a deceased spouse to the survivor. Federal estate tax isn’t a concern for most people (more than 99.5% of estates don’t owe any tax), but even without the tax consequences, a long survivorship period isn’t necessary.

Utah Survivorship Period

Utah has a survivorship period. To inherit under Utah’s intestate succession law, the heir in question must survive the decedent by at least 120 hours. In addition, relatives conceived before you die but born after the decedent’s death are eligible to inherit as if they had been born while the decedent was alive. However, posthumous relatives must survive at least 120 hours after birth in order to be eligible for their inheritance. Immigration status is irrelevant when it comes to inheritance. If a relative of yours is entitled to a share of your assets, they can inherit no matter what their citizenship status is. Half-relatives inherit as much as “whole” relatives. For example, your half-sibling would get the same share as any other sibling. Utah considers non-probate transfers to be advancements on a relative’s share of the estate. That means if an heir receives life insurance proceeds or funds from a payable on death account, those amounts are calculated as part of that heir’s share. In addition, if you make a gift to a future heir while you are alive, and put in writing that this should be advancement on their inheritance, or if the inheritor puts it in writing, the value of the gift is subtracted from their share.

Utah Probate Lawyer Free Consultation

When you need legal help with 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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Who Inherits When There Is No Will?

Who Inherits When There Is No Will

On the off chance that your mate or parent bites the dust without a Will, Utah law figures out who will acquire his or her property. These laws, called intestacy laws, are basically state-composed Wills that figure out who gets the decedent’s property. “Intestate” portrays an individual who kicks the bucket without a will. An individual who bites the dust with a Will is said to pass on “testate.” By and large, in intestate progression, property goes to close relatives, beginning with an enduring mate and youngsters, and after that step by step broadening out to guardians, kin, nieces and nephews, grandparents and their lawful relatives, and progressively far off relatives after that. On the off chance that positively no relatives can be discovered, at that point a decedent’s property goes to the state. Also, just to make everything increasingly convoluted, the laws of more than one state may apply. The guidelines for conveying an individual’s close to home property (autos, garments, adornments, and so on.) will be where that individual lived, called “residence” in legal talk.

In any case, if an individual additionally claimed genuine property in another express, that state’s law would apply to the conveyance of that genuine property. Since these laws are composed to cover a tremendous assortment of families and circumstances, they can be confused to peruse, and they change state to state. Fundamentally, in each state, you need to comprehend the sort of property an individual has and the family connections that individual needs to work your way down to who gets what. In certain states like the state of Utah, for instance, an enduring companion will acquire all the property left by a decedent, if the majority of that individual’s enduring heirs are likewise relatives of the enduring mate. For instance, in a state that way, if John bites the dust intestate, deserting a wife, Kate, a child little girl, Sally, a sibling and the two guardians, Kate, the enduring life partner, would acquire everything. In certain states including Utah, however, an enduring companion would just acquire a segment of John’s domain. In New York, for instance, Kate, as the enduring life partner, would acquire $50,000 and one-portion of the home, while Sally, the girl, would acquire the rest. In certain states, Kate may acquire one-portion of the domain and the other half would go to John’s enduring guardians. Furthermore, in certain states, if John had been hitched before he hitched Kate, and had kids from that first marriage, Kate would acquire a bit of his domain (one-half or perhaps 33%) and the rest would be separated between his kids from the two relational unions. Utah State likewise vary by the way they gap up property among the enduring heirs. In the event that an individual who might be qualified for acquire has passed on before the decedent, that individual’s relatives will acquire that share.

There are two distinct approaches to decide how much such relatives are qualified for. Per capita appropriation signifies “per head” in Latin and every relative takes an equivalent offer. In the event that, for instance, one kin and two nieces of an expired kin are the correct heirs, each would get 33% of the domain. Per stirpes appropriation signifies “by the root” in Latin and every relative takes an offer dictated by the root- – or what that individual’s perished predecessor would have acquired. For instance, if a youngster would have acquired one-portion of a decedent’s benefits, yet kicked the bucket first and left three kids, those three kids would each acquire one-6th of the domain (each would acquire 33% of their parent’s one-half offer).

Prior to broadly expounding on the best way to comprehend Utah’s intestacy laws, it’s essential to understand that these laws just apply to some of what an individual may have possessed at death. Intestacy law just applies to property that would have gone by a Will (if that individual had kept in touch with one)- – yet this does exclude resources that go to individuals at death by beneficiary assignment or joint tenure, which can be the greater part of what an individual claimed. Here’s a rundown of normal resources that go to individuals at death outside of intestacy laws:
• Retirement accounts
• Life coverage
• Payable on death accounts
• Move on death accounts
• Annuities
• Genuine property held in joint occupancy
• Genuine property held as network property with right of survivorship
• Financial balances held in joint occupancy
• Property held in living trusts

Every single such resource pass naturally to the general population named as beneficiaries or to the enduring joint proprietors or to the beneficiaries of a living trust. (In the event that no beneficiary is named, or on the off chance that the named beneficiary has as of now kicked the bucket, at that point these advantages go to the decedent’s bequest – which implies that they will be liable to intestacy laws.)
Intestacy law applies to everything else possessed by an individual at death–, for example, financial balances held for the sake of the dead individual, genuine property held exclusively or as an occupant in like manner, stocks and bonds held in venture accounts in that individual’s name, and the majority of an individual’s unmistakable individual property (furniture, garments, vehicles, and such). Utah’s intestacy law manage who will acquire such resources and Utah’s probate laws decide how those advantages will be moved. For the most part, in the event that somebody dies with a Will a court needs to manage the appropriation of a home.

That is the thing that probate is, a procedure wherein a judge confirms that a Will is substantial (or if there is no Will, distinguishes the best possible heirs) and, when the ideal individuals have been told, the benefits have been appropriately esteemed, and charges and loan bosses have been paid, issues a court request taking into account the dispersion of the bequest. Passing on without a Will doesn’t get you out of that procedure, it just implies that as opposed to deciphering the decedent’s Will, the court will pursue Utah’s intestacy laws to disseminate the bequest. To discover how probate functions in Utah, call Ascent Law LLC for more information.

In each state, however, domains that fall underneath a specific dollar breaking point don’t need to experience probate by any stretch of the imagination. In the event that a domain is little enough, you needn’t bother with a court request before having the option to convey that property to the best possible individuals. Along these lines, if your life partner or parent kicks the bucket without a Will, your first inquiry will be whether you are going to need to open up a probate continuing and get a court request before you can disperse the property. On the off chance that an individual’s benefits fall underneath Utah’s little bequests limit, you won’t have to open a probate continuing in Utah to circulate the property, yet on the off chance that the decedent’s advantages are more than this point of confinement, you will need to open a probate continuing to convey the resources for the individuals who remain to inherit. Snap here to find out about the little domains limit in Utah.

State intestacy laws are composed like PC, dislike books, in spite of the fact that they do have a specific cleanser show like quality to them. (It very well may be incredible to imaging an individual with each one of those entangled family connections simultaneously!) Basically, you can consider state intestacy laws like a long arrangement of “Assuming this then that” explanations – IF the decedent was hitched, and had no kids, then the life partner acquires all.” Once you locate the correct arrangement of lots of ifs you can figure out who gets the property at issue. The general population with the privilege to acquire are classified “heirs.”

Here’s a rundown of definitions to enable you to deal with the important terms and comprehend your relationship to the decedent, and your case on his or her benefits:

• Life partner. A mate is an individual who was lawfully hitched to the decedent, or, in certain states, a Registered Domestic accomplice. A couple of states perceive customary marriage, which implies that an individual who lived with the decedent as though wedded, and held themselves out to the world as that individual’s life partner would have indistinguishable lawful rights from a life partner regarding legacy. Snap here to see whether Utah perceives customary marriage.

• Children. A kid is generally characterized as an immediate relative of the dececent. That implies tyke, grandkid, greatgrandchild, etc. Legitimately embraced youngsters are dealt with simply like lineal relatives, so they check, as well. Furthermore, that implies that once a kid is lawfully received by another, that kid’s lawful connections to the birthparent are legitimately cut off, which implies that they don’t mean legacy purposes. Youngsters who were brought into the world after a parent bites the dust consider kids for legacy purposes.

• Stepchildren who were never lawfully embraced don’t generally consider youngsters for intestate purposes. Stepchildren who were received by a stepparent can at present acquire from their organic parent, yet this is reliant on state law. In certain states, an unadopted stepchild may qualify as a heir if certain conditions are fulfilled, for example, that the association with the parent began while the stepchild was a minor and proceeded all through the parent’s lifetime and the parent would have received that tyke yet there was some legitimate obstruction to doing as such (like the parent’s regular parent declining to agree to such appropriation).

• Outside of Marriage. A youngster brought into the world outside of a marriage has a similar case as a kid brought into the world within a marriage, yet the lawful issue that’ can be troublesome is figuring out who that kid’s legitimate parent is. It’s simple enough on the mother’s side: a kid can acquire from his or her introduction to the world mother. Be that as it may, on the dad’s side, if guardians were never hitched, a kid will need to demonstrate paternity to have a legitimate case. How does a kid do this? Here are some normal ways:

o A court request pronouncing paternity

o A composed proclamation from the dad recognizing paternity
Kin. Siblings, sisters, and stepbrothers and stepsisters all include in this gathering in many states. For instance, on the off chance that Sam wedded Sarah and had a little girl, Karen, at that point wedded Gloria and had twin children, Ike and Mike and after that passed on intestate, Karen, Ike and Mike (who have a typical dad) would all be viewed as his heirs.
In Utah, on the off chance that you leave no life partner and no relatives, your bequest will go to your folks. In the event that you left no guardians, your property will go to any of your enduring kin. On the off chance that you have no enduring kin, one-portion of the bequest will go to your maternal grandparents or their relatives, and the other half will go to your fatherly grandparents or their relatives. On the off chance that no living relatives can be discovered, the property escheats to the state to be put in training store. On the off chance that you pass on without a will and don’t have any family, your property will “escheat” into the state’s coffers. In any case, this in all respects once in a while happens in light of the fact that the laws are intended to get your property to any individual who was even remotely identified with you.

For instance, your property won’t go to the state in the event that you leave a life partner, youngsters, kin, guardians, grandparents, aunties or uncles, distant uncles or aunties, nieces or nephews, cousins of any degree, or the relatives of a mate who bites the dust before you do. Regularly, the “heirs” who are probably going to acquire under intestate progression will be the individual’s life partner or kids. The life partner has need. In any case, on the off chance that there is no living life partner, at that point the domain goes to the youngsters. In the event that there are no enduring youngsters, at that point Utah law manages that the home would next go to an enduring guardian. On the off chance that no parent endures, at that point the home goes to enduring relatives of the decedent’s folks (regularly kin of the decedent). On the off chance that no relative of a parent endures, at that point the home goes to any enduring grandparent. On the off chance that there is no enduring grandparent, at that point the domain goes to any enduring relative of the grandparents. On the off chance that nothing unless there are other options people endure, at that point Utah law looks to relatives of the decedent’s perished life partner who are not relatives of the decedent. The vast majority will have recognizable heirs under Utah’s arrangement of intestate progression. Be that as it may, on the off chance that no taker exists, at that point under Utah Code Section 75-2-105, the intestate home goes to the State to assist the state school finance.

Estate Administration Lawyer Free Consultation

When you need legal help with administering an estate in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

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

Telephone: (801) 676-5506

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How Soon Must A Probate Be Filed?

How Soon Must A Probate Be Filed?

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

Time Limit for Probate

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

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

Time Limit for Inheritance Tax

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

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

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

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

Petitioning the Court

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

Petition Deadline

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

Contesting Probate

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

Creditor Claims

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

Filing the Inventory

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

Tax Concerns

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

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

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

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

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

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

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

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

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

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

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

Probate Attorney Free Consultation

When you need legal help from a probate lawyer in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

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

Telephone: (801) 676-5506
Ascent Law LLC
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Are Beneficiaries Entitled To A Copy Of The Will?

Are Beneficiaries Entitled To A Copy Of The Will

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

Your rights as a beneficiary of a will:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Will And Probate Lawyer Free Consultation

When you need legal help with a will or probate in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

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

Telephone: (801) 676-5506
Ascent Law LLC
4.9 stars – based on 67 reviews


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What Does Probate Actually Do?

What Does Probate Actually Do

Probate is the court supervised process of authenticating a last will and testament if the deceased made one. It includes locating and determining the value of the decedent’s assets, paying his final bills and taxes, and, finally, distributing the remainder of the estate to his rightful beneficiaries. Each state has specific laws in place to determine what’s required there to probate an estate. These laws are included in the estate’s “probate codes,” as well as laws for “intestate succession” when a decedent dies without a will. Probate is still required to pay the decedent’s final bills and distribute his estate when he dies without a will. Although the laws governing probate can vary from state to state, the steps involved are generally very similar regardless of whether a will exists.

Probate is the official way that an estate gets settled under the supervision of the court. A person, usually a surviving spouse or an adult child, is appointed by the court if there is no Will, or nominated by the deceased person’s Will. Once appointed, this person, called an executor or Personal Representative, has the legal authority to gather and value the assets owned by the estate, to pay bills and taxes, and, ultimately, to distribute the assets to the heirs or beneficiaries. The purpose of probate is to prevent fraud after someone’s death. Imagine everyone stealing the castle after the Lord dies. It’s a way to freeze the estate until a judge determines that the Will is valid, that all the relevant people have been notified, that all the property in the estate has been identified and appraised, that the creditors have been paid and that all the taxes have been paid. Once all of that’s been done, the court issues an Order distributing the property and the estate is closed. Not all estates must go through probate though. First, if an estate falls below a certain threshold, it is considered a “small estate” and doesn’t require court supervision to be settled. Second, not all assets are subject to probate. Some kinds of assets transfer automatically at the death of an owner with no probate required. The most common kinds of assets that pass without probate are:

• Joint Tenancy assets-when one joint tenant dies, the surviving joint tenant becomes the owner of the entire asset, without the need for a court order. This is called “right of survivorship”

• Tenancy by the Entirety or Community Property With Right of Survivorship-these are forms of property ownership that function like joint tenancy, in that the survivor owns the entire property at the death of the other tenant, but are only available to married couples.

• Beneficiary Designations-retirement accounts and life insurance policies have named beneficiaries. Upon the death of the account or policy owner, these beneficiaries are entitled to the assets in the account or the proceeds of the policy.

• Payable on Death Accounts/Transfer on Death Accounts-bank and brokerage accounts can have designated beneficiaries, too. The account owner can fill out forms to designate who should receive the account assets after their death.

Third, if a decedent had created a Living Trust to hold his or her largest assets, than that estate, too, won’t go through probate, unless the assets left outside of the trust add up to more than Utah’s small estate limit. That, in fact, is why that Living Trust was created, to avoid probate after the death of the trust’s Grantor. But for estates in Utah that exceed the small estate’s threshold, and for which there is either no Will, or a Will (but not a Living Trust), probate will be required before an estate can be transferred to the decedent’s heirs or beneficiaries. The general procedure required to settle an estate via probate in Utah is set out in a set of laws called the Uniform Probate Code, a set of probate procedures that has been adopted, with minor variations, in 15 states, including Utah. In Utah, under the UPC there are three kind of probate proceedings: informal, unsupervised, and supervised formal.

Informal Probate

Most probate proceedings in Utah are informal. You can use it when the heirs and beneficiaries are getting along, there are no creditor problems to resolve and you don’t expect any trouble. The process begins when you file an application with the probate court to serve as the “personal representative” of the estate. (This is what most people think of as the “executor”). Once your application is approved, you have legal authority to act for the estate. Usually you’ll get what’s called “Letters Testamentary” from the court.

Once you get the letters, you need to do these things:
• Send out formal notice to heirs, beneficiaries, and creditors that you know of.
• Publish a notice in a local newspaper to alert other creditors.
• Provide proof that you’ve mailed notices and published the notice.
• Prepare an inventory and appraisal of the estate’s assets.
• Keep all the property safe
• Distribute the property (when the estate closes)
Once the property’s been distributed, you close an informal proceeding by filing a “final accounting” with the court and a “closing statement” that says you’ve paid all the debts and taxes, distributed the property, and filed the accounting.

Formal Probate

A formal probate, even an unsupervised one, is a court proceeding. That means that a judge must approve certain actions taken by the Personal Representative, such as selling estate property, or distributing assets, or paying an attorney. The purpose of involving a judge is to settle disputes between beneficiaries over the distribution of assets, the meaning of a Will, or the amounts due to certain creditors. The informal probate process won’t work if there are disputes, so that’s when the court gets involved.

A supervised formal probate is one in which the court steps in to supervise the entire probate process. The court must approve the distribution of all property in such a proceeding.

Most states have laws in place that require that anyone who is in possession of the deceased’s will must 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 judge will confirm that it is, in fact, valid. This typically involves a court hearing, and notice of the hearing must be given to all the beneficiaries listed in the decedent’s will as well as his heirs those who would inherit by operation of law if he had not left a will. The hearing gives everyone 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.

The judge will appoint an executor as well, also sometimes called a personal representative or administrator. This individual will oversee the probate process and to settle the estate. The decedent’s choice for an executor is typically included in her will, but the court will appoint next of kin if she didn’t leave a will, typically her surviving spouse or an adult child. This individual isn’t obligated to serve, he can decline and the court will then appoint someone else. The appointed executor will receive “letters testamentary” from the court a fancy, legal way of saying he’ll receive documentation that allows him to act and enter into transactions on behalf of the estate. This documentation is sometimes referred to as “letters of authority” or “letters of administration.” It might be necessary for the executor to post bond before he can accept the letters and act for the estate, although some wills include provisions stating that this isn’t necessary. Bond acts as an insurance policy that will kick in to reimburse the estate in the event the executor commits some grievous error, either intentionally or unintentionally that financially damages the estate, and, by extension, its beneficiaries. Beneficiaries can elect to unanimously reject this requirement in some states, but it’s an ironclad rule in others, particularly if the executor ends up being someone other than the individual nominated in the will or if he lives out of state.

The executor’s first task involves locating and taking possession of all the decedent’s assets so she can protect them during the probate process. This can involve a fair bit of sleuthing sometimes some people own assets that they’ve told no one about, even their spouses, and these assets might not be delineated in their wills. The executor must hunt for any such assets, typically through a review of insurance policies, tax returns, and other documentation. In the case of real estate, the executor is not expected to move into the residence or the building and remain there throughout the probate process to “protect” it. But he must ensure that property taxes are paid, insurance is kept current, and any mortgage payments are made so the property isn’t lost and doesn’t go into foreclosure. The executor might literally take possession of other assets, however, such as collectibles or even vehicles, placing them in a safe location. He’ll collect all statements and other documentation concerning bank and investment accounts, as well as stocks and bonds.
Date of death values for the decedent’s assets must be determined and this is generally accomplished through account statements and appraisals. The court will appoint appraisers in some states, but in others, the executor can choose someone.

Many states require that the executor submit a written report to the court, listing everything the decedent owned along with each asset’s value, as well as a notation as to how that value was arrived at.

The executor can petition the court for permission to distribute what is left of the decedent’s assets to the beneficiaries named in his will. This usually requires the court’s permission, which is typically only granted after the executor has submitted a complete accounting of every financial transaction she’s engaged in throughout the probate process. Some states allow the estate’s beneficiaries to collectively waive this accounting requirement if they’re all in agreement that it’s not necessary. Otherwise, the executor will have to list and explain each and every expense paid and all income earned by the estate. Some states provide forms to make this process a little easier. If the will includes bequests to minors, the executor might also be responsible for setting up a trust to accept possession of bequests made to them because minors can’t own their own property. In other cases and with adult beneficiaries, deeds and other transfer documents must be drawn up and filed with the appropriate state or county officials to finalize the bequests.

The Probate Process

If you have a will which names an executor, then they will start the process by filing the appropriate paperwork with the local probate court. It is highly recommended that the executor hire an attorney to handle this paperwork, and to help prove the validity of your will. The executor, or their legal representative, will then need to supply the court with a list of your property, debts, and beneficiaries. Once this has all been established, they can begin to pay debts and transfer property. If you do not have a will at the time of your death, the process will be similar however, the executor of your estate will be appointed by a judge. Only after all property, beneficiaries, and outstanding debts and taxes have been established, can the probate court start to pay debts and transfer property to the new owners. Since you did not name beneficiaries, the court will follow state laws to determine who will inherit what, and this can be a very lengthy process.

Anyone with a basic understanding of estate planning knows that one of the primary benefits of having a living trust is to avoid probate. Nevertheless, unless you are an attorney or have been personally involved in a probate proceeding in the past, few people have an understanding of what probate really is and why it is not recommended for most estates. Probate is a court supervised process for administering and (hopefully) distributing a person’s estate after their death. When a person dies leaving property (especially real estate) in their name, the only way to transfer ownership from the deceased owner’s name to the name of their heirs is for a court to order the transfer through the probate process. In other words, since a deceased owner of property is no longer around to execute deeds, only a court can effectuate the transfer of real property after the owner dies, and probate is the legal process by which this would occur. Many people have the misconception that having a will alone avoids the probate process. A will merely informs the world where you want your property to go, but probate is still needed to carry out the wishes expressed in the will (since even with a will, property stays in the name of decedent). Only a trust can avoid probate because once you have a trust, all of your assets are then transferred to the trust during your lifetime thereby avoiding the need for a court to do so.

For some estates, probate might be a good alternative, but consider these five reasons why you would want to avoid having your estate pass through probate:

• Probate is a public proceeding. As with any court proceeding, the court hearings and documents in probate are completely open to the public. In fact, probate courts typically require filing an inventory and accounting of the entire estate with the court. Anyone can simply visit the probate court and view or copy probate records, and some courts even make this information available online. If you have any interest in keeping your finances, property or family members’ secret upon your death, you want to avoid the probate process.

• The personal representative has to formally notify all your creditors of your death. One of the primary purposes of probate is to afford creditors the opportunity to have their debts with the decedent settled through the probate process. In fact, one of the first steps in the probate process is to specifically notify all known or reasonably ascertainable creditors that decedent has died, and therefore, if they want anything, they need to act now. Once a creditor has been notified, they merely need to file a claim with the probate court within the time allowed and will be entitled to payment from the probate estate (assuming it is not contested and there are assets are available to pay).

• Probate is a court supervised process. In many cases in probate, court approval is required at every step in the process, from appointing the initial personal representative for the estate, proving the will (if any), confirming dispositions of property, approving the inventory and accounting of the estate, settling disputes between creditors or beneficiaries of the estate, and final distributions of the estate. The process is fraught with rules and procedures that must be followed in order to obtain court approval. For example, selling real estate through the probate process may entail securing formal appraisals, offering the property for sale through a court bidding process, and ultimately obtaining court approval for the final sale. By contrast, since a trust is usually administered without any involvement of a court, the makers of the trust can be very flexible in how their property will be distributed without the need for a lot of formalities that a court would require.

• Probate involves time and delay in administering and distributing the estate. Given all the court procedures and requirements of administering a probate estate, even the most simple and uncontested probate proceedings can take many months to a year. If there are claims, disputes, or other complications in the proceedings, the process can take much longer. As courts continue to report reduced funding and large caseloads, increasing delays will likely continue to be part of the probate process.

• Probates usually involve significant attorney’s fees. Although parties certainly have the option to represent themselves in probate, due to all the procedural requirements in probate, which is usually quite different from the procedures in a typical lawsuit, attorneys are usually recommended in all but the most simple of probate estates. Attorney’s fees are usually paid from the estate based on a percentage of the value of the estate. If there are complications in the estate administration that requires extraordinary services, the fees would be even more.

Probate Lawyer Free Consultation

When You Need Legal Help With Probate In Utah, Please Call Ascent Law LLC (801) 676-5506 For Your Free Consultation. 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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Do I Need An Attorney For Estate Planning?

Do I Need An Attorney For Estate Planning

Yes, you should have one.

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

What an Estate Planning Lawyer Does

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

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

What You Should Expect to Pay for Your Estate Plan

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

Reasons to Hire an Estate Planning Attorney

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

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

How to Find an Estate Planning Attorney

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

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

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

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

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

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

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

How to Choose the Best Lawyer

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

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

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

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

Estate Planning Attorney Free Consultation

When you need legal help with an estate plan – whether that is a will, trust, power of attorney or health care directive, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

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

Telephone: (801) 676-5506

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4.9 stars – based on 67 reviews


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Making a Will FAQs

Making a Will FAQs

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

What is the purpose of preparing a will?

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

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

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

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

Do I need a lawyer to create a valid will?

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

Can I make a handwritten will?

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

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

How do I make a will valid?

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

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

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

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

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

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

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

Can I disinherit my spouse?

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

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

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

How do I revise my will?

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

Free Consultation with a Utah Will Lawyer

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

Michael R. Anderson, JD

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

Telephone: (801) 676-5506

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What Does an Executor Do?

Serving as the executor of someone’s last will and testament can be an honor and the most terrifying experience of your life at the same time. By definition, an executor is entrusted with the large responsibility of making sure a person’s last wishes are granted with regards to the disposition of their property and possessions. When it boils down to essentials, an executor of a will is responsible for making sure that any debts and creditors that the deceased had are paid off, and that any remaining money or property is distributed according to their wishes.

What Does an Executor Do

Although the law does not require an executor to be a lawyer or other legal or financial expert, it does require than every executor fulfill their duties with the utmost honest and diligence. The word for this in the law is a “fiduciary duty,” which holds the executor to act in good faith with regards to a person’s will.

An executor is not entitled to proceeds from the sale of property of the estate. Depending on the particular state, generally, an executor is only entitled to a fee as compensation for administering the will. Most states mandate that this fee be reasonable given the size or complexity of the will.

Personal Representative’s Duties

There are many duties that an executor of a will may have to fulfill, depending upon the complexity of the will and the property to be distributed. These duties normally include:

  • Finding the deceased person’s assets. The executor is also responsible for keeping the assets safe until they can be properly distributed to those named in the will or to creditors. This management of assets can include deciding which and what types of assets to sell as well as what kinds of assets and property to keep.
  • Deciding if probating the last will and testament in court is necessary. Probating a will is the process of getting a court to approve the validity of the will. The decision of whether or not to probate a will can often depend upon the laws of the state that the will is going to be administered in, as well as the value of the property that will pass via the will.
  • Finding and contacting the people that were named in a will who are supposed to inherit money or property. The executor is generally in charge of making sure the property that is named in the will goes to the right people.
  • Making sure the will is filed in the appropriate probate court. This is generally required by law even if the will does not need to be probated.
  • Wrapping up the deceased’s affairs. This can include everything from canceling credit cards that are still open to notify a bank about the death of the individual. In addition, if the deceased person was already collecting Social Security benefits, the Social Security Administration should be contacted.
  • Setting up a bank account for the estate. Executors are generally required to keep the estate’s money separate from their own funds. Setting up a bank account in the name of the estate can make paying off debts to creditors easier.
  • Continuing necessary payments. The funds in the estate’s bank account can be used for making mortgage, insurance and other recurring payments that need to be paid during the administration of the will.
  • Paying off debts and creditors. In general, before any person named in a will can receive any inheritance, the deceased debts and creditors need to be paid off. The executor of the will should notify all creditors of the death of the individual and see how they wish to proceed.
  • Paying final income taxes. As the saying goes, the two things that are definite in life are death and taxes, and they even go together. Generally, the executor of a will is responsible for making sure that the deceased’s income taxes for the last year he or she was alive are paid.
  • Ensuring the property distribution of the deceased’s property. Property that is given through a will should be given as it is recorded. However, if there is other property that is not named in the will, it should pass according to the laws of the state.

Note that if there is no will in place, the person in charge is generally called the administrator and will be in charge of determining state law to see who property will pass to in “intestate succession.”

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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When is Probate Unnecessary?

When is Probate Unnecessary?

Probate gets a lot of negative press. You’ve probably heard stories about how time consuming and expensive it can be. Fortunately, not all property needs to go through this legal process before it passes to your heirs. So, you ask, when is probate not necessary?

When is Probate Unnecessary

The quick rule of thumb is probate is not required when the estate is “small”, or the property is designed to pass outside of probate. It doesn’t matter if you leave a will. Let’s take a closer look at each of these exceptions.

Benefits of a Small Estate

Being small can have its advantages when it comes to probate. Most states recognize the complexity of this legal process is unnecessary for transferring a modest estate. So when the deceased’s remaining property is valued below a state-determined amount, assets can be distributed to beneficiaries without going to court. In California for example, an estate valued at $150,000 or less may not need to go to court. In Nebraska, the threshold is $50,000 or less.

Figuring out if your estate qualifies as “small” only takes a few simple steps.

  1. Total up the value of your “individual” property. This typically includes bank accounts, investment accounts, business interests and real estate. The value of your personal effects, such as electronics and artwork, are also factored in. It’s unlikely more disposable items, such as your shoe collection, will be considered.
  2. Subtract the value of property with a co-owner or designated beneficiary. This topic is reviewed in greater detail in the next section. What you need to know for now is that only assets titled in your name alone, and without a listed beneficiary, go to probate. For example, a life insurance policy with a beneficiary is not included in determining your estate value. Neither does a home held as community property.
  3. Determine your state’s small estate threshold: All 50 states and the District of Columbia have laws governing most aspects of estate planning and probate. This includes setting the value of the estates that must go to probate.

Sometime can be a good idea to open probate even when it’s not required, especially if there are concerns over creditor claims or beneficiary disputes. Before relying on the small estate exemption to probate, it’s important to understand the laws of your state and how your assets are valued. Losing a loved one is a difficult time for family and friends. Don’t leave things to chance.

Property that Transfers Outside of Probate

Not all property needs to go through probate. That’s good news for beneficiaries because property that passes outside of probate is distributed much sooner. Assets that typically don’t go through probate fall into the following three categories:

Jointly Owned Property

With the “right of survivorship” avoids the probate process because ownership transfers immediately to the surviving owner(s) after a co-owner’s death. There are few ways to jointly own property that creates this right of survivorship including:

    • Community Property is the property ownership form held by married couples that has the right of survivorship. Be careful, not all states recognize the forms of joint ownership created by marriage or domestic partnerships.
    • Tenancy by the Entirety is a form of ownership only available to legally recognized couples. It works much the same way as a joint tenancy with a right of survivorship, in that effectively upon the death of one spouse, the living spouse takes the deceased spouse’s portion.
    • Joint Tenancy with right of Survivorship In this form you take property as “joint tenants” and upon the death of a joint tenant, the surviving tenant takes the deceased tenant’s portion.

Designated Beneficiary

The designated beneficiary is the person selected to inherit an asset, such as bank account, or the money from a life insurance policy. When you die, assets with a designated beneficiary will immediately transfer to the named person. Naming a beneficiary to many of your accounts simply requires filling out a short form. Assets that can have a named beneficiary include:

        • Bank Accounts stating a “payable on death” (POD) beneficiary
        • Investment accounts noting a “transfer on death” TOD beneficiary
        • Life insurance naming a beneficiary other than the estate of the deceased
        • Retirement Accounts
        • Cars or boats registered in transfer on death form

    Trusts

Trusts are designed to allow your family, friends and causes you care about to inherit from you without having to go through the long and expensive probate process. There are many different types of trusts serving a variety of purposes, including:

      • Revocable Trusts are created during the lifetime of the person making the trust. The trust can be altered, changed, modified or revoked during the maker’s life.
      • Irrevocable Trusts cannot not be altered, changed or modified once made. There trusts are good for passing larger estates and have tax savings properties.
      • A Charitable Trust is made during the grantor’s lifetime. It is often a financial planning tool, often providing the trustmaker or his designated beneficiary with lifetime income with the remainder going to charity.

 

Free Consultation with a Utah Estate Lawyer

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

Michael R. Anderson, JD

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

Telephone: (801) 676-5506

Ascent Law LLC

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