Monthly Archives: January 2015

Asset Protection

Is your Loved One a Victim of Financial Abuse?

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If you have an elderly parent or other loved one that is a senior citizen, it is important to understand that they are particularly vulnerable to financial abuse. This is especially true if they have a mental or physical challenge.

There are certain signs that you should be aware of that may indicate your loved one is being taken advantage of. If you see a pattern starting to occur, you should take immediate action and intervene. Below are a few “clues” that financial abuse may be occurring:

  • You start noticing personal items or assets are missing
  • Your loved one has new “friends” that are influencing him or her
  • Your loved one starts receiving past due notices on his or her bills
  • There are unexplained withdrawals or transfers from the senior’s bank accounts
  • The elder’s banks statements are not being delivered to his or her home anymore
  • There are suspicious signatures on the senior’s checks
  • Your loved one is not aware of his or her financial situation and cannot explain certain financial arrangements that have been made
  • The senior has signed new legal documents, but cannot explain why it was done or what the documents mean

The above list is not exhaustive. If you believe your elderly loved one has been the victim of financial abuse, we can help. As specialists, our elder law attorneys can help you figure out what has happened and how to correct it. Along with untangling the financial mess, we can assist your loved one with creating an estate plan that truly carries out his or her wishes.

The Astill Law Office has provided high quality legal services for over 30 years. We specialize in wills, trusts, estate planning, and asset protection. If you have any questions about creating a Trust, Will, or estate planning in general, contact The Astill Law Office at 801-438-8698.

 

Estate Planning

Should I Transfer My Home While I’m Alive?

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For many Utah residents (and for most people in general), their most significant asset is their home. In an effort to avoid the probate process, or save the money required to create an estate plan, many people transfer title to their house while they are still alive. In most instances, a parent transfers title to their home to an adult child, believing this is an inexpensive and simple answer. Sadly, this can lead to serious complications for you and your loved ones.

Two important factors to consider are that by transferring title to your home, (i) you lose your homestead exemption for protection from creditors, and you are no longer entitled to a reduced property tax because it is not an owner occupied primary residence. This can cost you thousands of dollars.

Another concern is that you lose control over the rights to your home. If you should have a dispute with your child, you could potentially lose the ability to live in your own house! Your child (or children) owns the house, and without providing more, he or she does not have a legal obligation to let you continue living there (unless otherwise provided by contract). Additionally, you have no control over what can be done to your property, such as renovations, but also with your home being used as collateral for loans. What happens more often is a child has creditor problems of their own and their judgment creditors then have liens on your home!

Finally, you should also consider whether transferring title to a child will cause problems at your death amongf your other children. The child that owns your home has no legal obligation to share it with his or her siblings. What happens at death when that child faces the other children and simply states that he doesn’t intend to share?

To remedy this, some people put the names of all of their children on a deed to their home. However, if you put all of your children’s names on the title to your house, it can make the documentation very complicated and it leaves the home more vulnerable to attack by creditors and even more complicated. For example, what happens if one of your children dies before you do? Who then owns their share of the house? And even if your children cooperate with you, will your inlaws or grandchildren? What happens if you want to sell the home and use the proceeds to buy a smaller home or for your support in old age? One holdout can jam up the works and you can’t sell your house! You can see that this creates serious complications and is never a recommended plan.

More often than not, the arrangement that sounded so simple becomes seriously complicated and costly and results in litigation in your estate. It is far more costly than preparing a sound estate plan. And the worst thing is, it doesn’t carry out your wishes.

Creating an estate plan is a safer, more efficient and less costly means for transferring all of your important assets. If you want to avoid the probate process, you can create a revocable living trust. This type of trust provides you with flexibility to decide when and how your estate is distributed. A trust can actually save your family a significant amount of money, time and disputes in the long run and you can be assured that your intent is carried out under all circumstances.

The Astill Law Office has provided high quality legal services for over 30 years. We specialize in wills, trusts, estate planning, and asset protection. If you have any questions about creating a Trust, Will, or estate planning in general, contact The Astill Law Office at 801-438-8698.

Estate Planning

Lost Wills

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If you have a loved one die and you know he or she had a will, but you can’t locate it, it can cause confusion. A “lost will” is one that has been misplaced, or it could be one that was destroyed without permission of the decedent. In most cases, if a will cannot be located after an individual dies, the court presumes that it was intentionally revoked or destroyed. Thus, if you are attempting to prove the terms of a lost will, you have the burden of proof to overcome this presumption.

How do you overcome this presumption? You must submit substantial evidence that the will existed and what the content of it was. Typically, a correct copy of the will and testimony of witnesses is sufficient to have the lost will admitted to probate. This is one reason why it can be beneficial to provide copies of your will to your loved ones. Not only does it help them understand your wishes for the administration and distribution of your estate, it makes meeting the burden of proof easier if your original will is lost.

Once the probate of a lost will is started, interested parties may participate in the proceeding. Thus, the more competent evidence you have in establishing the existence of a lost will, the more likely you are to successfully have your loved one’s wishes carried out. Witnesses to the Will provide the best evidence, along with legal counsel who prepared the Will.

Submitting a lost will for probate can be a complicated task, but it can be done. If you need assistance with probating a lost will or other estate planning matters, contact us to schedule your initial consultation.

The Astill Law Office has provided high quality legal services for over 30 years. We specialize in wills, trusts, estate planning, and asset protection. If you have any questions about creating a Trust, Will, or estate planning in general, contact The Astill Law Office at 801-438-8698.

Estate Planning

Is Probate Ever a Good Thing?

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When it comes to probate, you typically are advised to avoid it if at all possible. This is true as a general rule because the probate process can be time-consuming, expensive and it opens your private matters up to the public. However, there are certain situations when it may be beneficial to allow some of your estate to go through probate.

If the estate has a large number of creditors, a probate may be helpful. When a probate case is filed, creditors are then given notice of the filing for probate and a deadline for asserting their claims against the estate. Thus, if the deceased owed large sums of money at the time of his or her death, it can be beneficial to have a time limit for creditors to file their claims. If a creditor fails to properly assert a claim, it can be barred from asserting its rights to collect the debt at a later date.

In comparison, if you have placed your assets into a trust to avoid the probate procedure, creditors are not limited by the probate law and the deadlines provided therein. However, in Utah there is a method provided for Trusts to do a similar procedure to limit claims against the decedent’s trust. With proper planning, it is possible to take advantage of a trust while also using the probate process for protection. This strategy requires advance planning and the assistance of an experienced estate planning attorney. Once the creditor’s notices are finished, your estate should be secure. Your family has the comfort of knowing that the remaining property held is protected from future claims of your creditors.

The Astill Law Office has provided high quality legal services for over 30 years. We specialize in wills, trusts, estate planning, and asset protection. If you have any questions about creating a Trust, Will, or estate planning in general, contact The Astill Law Office at 801-438-8698.

Estate Planning

Checklist: What to do when Someone Dies

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Checklist: What To Do When Someone Dies

1. If a doctor is not present, notify a doctor or coroner in order to obtain a death certificate.
2. If the death occurs at home, you may need to contact a local police officer or coroner.
3. If the Decedent wished, a donation of body parts and tissues should be considered.
4. Notify family and friends. You may want to consider having family members contact others to save yourself some time on the phone during a stressful period.
5. Look for instructions which the Decedent may have left regarding preferences for funeral and burial arrangements.
6. Determine if the Decedent belonged to a burial or memorial society that may make special arrangements for the funeral, such as military honor guards.
7. Contact a funeral home concerning burial or cremation arrangements.
8. Complete funeral and burial arrangements.
9. Contact the Social Security Administration and any other government agencies or benefit program that may be making payments to the Decedent. (Note that the payment for the month of death will not be made by the Social Security Administration and others.)
10. Review the Decedent’s financial affairs and look for any estate planning documents, such as Wills and Trusts, along with any other relevant documents, including:
• Funeral and Burial Plans;
• Safe Deposit Agreements and keys;
• Nuptial Agreements;
• Life Insurance Policies;
• Existence of Trust;
• Pension-retirement benefits;
• Old tax returns;
• Prior Gift Tax returns;
• Marriage, birth and death certificates;
• Divorce documentation;
• Computer records regarding books of a business or personal assets;
• Bank statements, checkbooks, similar documents;
• Notes receivable;
• Titles to motor vehicles;
• Leases;
• Securities and list of securities;
• Any documentation of business ownership or business interest;
• Health Insurance, make claims for the final illness; and
• Unpaid bills.
11. If there is a Will or Trust, take it to a competent estate planning attorney to determine if probate is necessary or how to administer the estate.
12. Administering the Will – If the Will is properly drawn, it will name a Personal Representative (also known as Executor or Executrix). The Personal Representative, who can be an individual, a group of individuals or one or more institutions, or a combination of the aforementioned, will be responsible for the administration of the probate estate of the Decedent. A trust may eliminate this requirement, but depends on the diligence of the decedent in tending to their affairs.
13. If there is no Will or Trust and there are assets which need to be probated, with the help of a competent estate planning and probate attorney, the Court will appoint an administrator and the assets of the Decedent will be distributed according to state law. This situation is referred to as intestacy, where the state prepared a Will for you. All states have a set of laws relating to intestate succession (transfer of property after dying without a Will), and the states decide who gets which assets if someone dies without a Will.
14. If you are the Personal Representative or Successor Trustee of a Trust, prepare a detailed list and inventory of the assets owned by the Decedent or the Trust, so they can be administered and distributed according to the wishes of the Decedent.
15. Open a bank account for the estate of the Decedent or for the Trust. This should be done early on and all receipts and disbursements should be recorded in that bank account, in order to account properly for the assets of the Decedent and the expenses of administration.
16. Probate is a process similar to that of accounting. The Personal Representative is responsible for collecting the assets and reporting to the Court as to the amount of assets in the Estate of the Decedent. The Personal Representative then assembles the assets and, after paying debts, expenses and taxes, distributes the assets according to the wishes of the Decedent. If the Decedent left no Will, the process of administration is essentially the same, except that state law determines to whom the assets are distributed. If everything is done correctly, eventually, after the Personal Representative has accounted for and distributed the assets, the Personal Representative is discharged. If a Trust is used, the same concepts apply to administration of the trust.
17. Make an inventory of household goods, personal belongings and the like, in order that they can be accounted for and properly distributed.
18. Look for insurance policies or annuities which may continue for other family members and other assets. Contact the Insurer with respect to any current policies or annuities.
19. Try to assemble the deeds of the Decedent to see what real estate, if any, is owned by the Decedent. If real estate is owned in more than one state, special proceedings, called “ancillary administrations,” may be needed in each state.
20. Determine if the Decedent owned any securities, stocks, bonds, mutual funds, etc.
21. Retirement Plans, IRA accounts and similar retirement benefits involve important choices which need to be made by beneficiaries, particularly in regard to IRA accounts under IRS regulations. If there are annuities, pension and profit sharing plans and interest of that type, they may provide for joint payment to a surviving spouse or others.
22. If the Decedent controlled or was a principal person in a business, it may be necessary to check to see if there are Buy-Sell Agreements under which the interest of the Decedent would be purchased by the business entity or other business owners.
23. If, after the appointment of a Personal Representative, a bank account or safe deposit box is found, then the assets in the bank account or safe deposit box need to be distributed according to the wishes of the Decedent.
24. If the Decedent was indebted to anyone, then the creditor needs to be paid. If the creditors are not paid and they make a claim against the estate after all of the assets are distributed, the Personal Representative may be in trouble and held personally liable for the debt. If there are insufficient assets to pay creditors, you need the assistance of an attorney to determine how to proceed.
25. As part of the probate process, all family members within a certain degree of kinship must be contacted, whether or not they receive assets from the Estate of the Decedent.
26. In handling the affairs of a Decedent, do not be quick to make distributions to family members or friends of the Decedent. Important choices need to be made concerning such distributions and, of course, they need to be in compliance with the Will, Trust or other instructions left by the Decedent, not to mention any applicable tax laws.
27. The income taxes of the Decedent for the year of death need to be filed, and any tax due must be paid. If there is a surviving spouse, the surviving spouse can file a joint return with the Decedent for the year of death.
28. If there is a Trust, particularly a Revocable Living Trust, it will become irrevocable at the time of death, if not before. A separate tax return, Form 1041, Fiduciary Income Tax Return, needs to be filed for the Trust or the Estate of the Decedent if income is received by the Estate or a Trust.
29. If there are minor children and the Will provides for a guardian, then the guardian needs to be informed and the children need to be placed in the care of the guardian. If there are minor children and no guardian is appointed, or if there is no Will, then the Court must appoint a guardian.
30. If there is real estate or other property that is insured, the Personal Representative should make sure that the insurance policies on the properties of the Decedent are maintained.
31. Be deliberate and do not be hasty with decisions or distributions. The death of someone, particularly a family member or friend, is stressful and often if there are children of the Decedent around during the course of the final illness, there may be disputes regarding the treatment or other problems related to declining physical or mental abilities of the parent. Stated differently, it is a time of frazzled nerves and irritable people, so be very careful not to create schisms which can last for a very long time.
33. Watch out for people who prey upon families of Decedents. There are people who look for death notices and make unfounded claims against the Decedent. Some may also attempt to burglarize the home during the funeral service. Be cautious about such matters; have someone stay at the home during the funeral service and do not easily accept the claims of unknown individuals that lack documentation. There are also unscrupulous “experts” who will tell you that they can help you administer the estate. Talk to a competent estate planning attorney before making any decisions.
34. If there is a surviving spouse, make sure veterans benefits or other “joint and survivor” benefits are collected by the surviving spouse.
35. If you are a surviving spouse, don’t make any major changes in your life, such as place of residence, re-marriage or anything else for at least a year unless it’s absolutely necessary. See the assistance of a competent estate planning attorney to review the Decedent’s affairs and advise you on your own estate plan going forward.

36. Remember that any power of attorney you held for the Decedent is now revoked.

Estate Planning

Upon the Death of a Loved One

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UPON DEATH OF A LOVED ONE – SOME THINGS TO ADDRESS:

Immediate Things:

  1. Secure the house.
  2. Take care of pets.
  3. Forward mail.
  4. Shut off or curtail use of utilities (or not, depending on circumstances, i.e., if you have to keep the heat on, water the lawn, etc.)
  5. Clean out the refrigerator.
  6. Stop the newspaper.
  7. Check with a friendly neighbor to keep you apprised if there is any activity at the house.
  8. Tell the Landlord if the residence is a rental.

Longer Term:

Previously we published a lenthy checklist. Look at our website or Facebook page for a copy of this checklist. The Checklist is not exhaustive (though we think it is pretty thorough), and not every item will be applicable in every case. Sometimes you may need to make adjustments — such as when your family member had a living trust, and no probate proceeding will be necessary, or if you have been responsible for managing their bill-paying for several years before the death. Still, we think it will help you organize the papers, questions and information you need to properly take care of the legal and financial issues that will arise.

A couple more caveats:

  • Please remember that we live and practice in Utah. This checklist may not be accurate, or as useful, if you live somewhere else, or your family member died somewhere else.
  • Several items on our checklist encourage you to collect information of various kinds. In most cases, that’s so that your visit to our offices will be more productive. Sometimes it is to help you answer questions from heirs, creditors or others as you get more deeply into administering your loved one’s estate. If you do collect forms, mailings, etc., keep them in a central place for several years after you have concluded the estate administration.
  • If you are the successor Trustee or Personal Representative, where we indicate that you should keep track of your time and expenditures, we really mean that you should — and from the very beginning of your work. Even if you have no intention of charging a fee, we strongly recommend that you keep track.
  • If you are not the person who will be in charge of the decedent’s estate, that does not prevent you from printing out the checklist, monitoring progress by the person who is in charge, and figuring out how you can be helpful.

Common Questions:

1. How quickly do you need to get to the lawyer’s office to review what needs to be done? Usually it is not the most pressing issue, but you should expect to make an appointment within about two to four weeks. If you are the surviving spouse, it probably can wait longer. If you are in town for a short time you might well want to meet right away, at least briefly. But here’s another reality: when you call, you may be looking at a two-week wait before an appointment. That gives us time to schedule you, and to get a questionnaire out to you to help with the collection of information. Usually nothing can be done for a week or two anyway. So don’t wait two weeks to call for an appointment, and then expect it to be immediate. If there are pressing needs, we make time at our office as necessary.

2. Do you need to see the lawyer who prepared the will or trust? Not necessarily. It may be more comfortable and efficient, and the lawyer might have even kept the original documents (we sometimes do that for clients). For example, we maintain detailed electronic files of notes and documents for our clients and most have become good friends by the time they pass away. This helps because we can be up to speed quickly and provide a lot of assistance. Not every firm does this. But there is no compelling need to return to the decedent’s lawyer. It probably does make sense (in most cases) to meet with a lawyer in the community where your family member lived and died.

3. How long will the process take, and how much will the lawyer charge? It’s really impossible to generalize in any useful way. You might well be surprised at how little it costs. On the other hand, we regularly see family members who think there will be no need for a probate or any costly legal proceedings, only to find out that something was wrong in the estate setup, or something got changed or overlooked.

4. What are some of the more important points in our checklist? Here are a few we’d like to highlight:

  • Assembling a list of bank accounts, annuities, stocks, bonds, mutual funds, brokerage accounts and real estate will speed the process up immeasurably. It will likely also make it much easier for the lawyer to realistically estimate the cost and time to get the probate (or trust) administration completed. Same for creditors.
  • The funeral home will help you determine how many death certificates you will need, and how to get them ordered. You might not have visited with us yet, but here’s a practical reality: if you order them through the funeral home, you will get them faster and more cheaply. If we have to get them later it will be time consuming and more expensive. So when you’re figuring out how many you need, estimate high (at least 5 copies and depending on the estate, we sometimes recommend 10 copies).
  • At some point we’re going to need names and addresses for all the heirs and beneficiaries. For some we will also need dates of birth and even Social Security numbers. You can speed the process up if you start collecting that information.
  • Forwarding the mail is critical. It needs to get done, and it is often the easiest way to get information about assets and bills.

5. One last point we want to make: if you had a power of attorney for the decedent, it is no longer valid. While a “durable” power of attorney survives even if the signer becomes incapacitated, no power of attorney survives the signer’s death. Do not sign checks, make credit card charges, or do anything else using the power of attorney.

Call us to discuss what needs to be done next. We are always very sorry to hear of someone’s loss. We are here to help.

Estate Planning

Challenging a Will

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gavelIf you are considering challenging the validity of a Last Will and Testament of a loved one, you should understand it is serious business. Even if your objection to the Will is a simple claim that a simple mistake was made, it can bring the validity of the entire Will into question. There are numerous circumstances where a Will can be contested, including:

  • Lack of mental capacity. If the court finds that the testator lacked the mental capacity to understand the nature or amount of his or her estate, or how the Will disposes of the estate, the Will can be held invalid.
  • Failure to comply with the law. If a Will fails to meet the requirements set forth by the applicable law (such as in writing, witnessed, notarized, etc), it may be successfully challenged.
  • Mistake or fraud. If the testator signed the Will based upon a misunderstanding or actual fraud, it can be held invalid.
  • Undue influence. If the testator made the Will under the undue influence or duress of another party, it can be held invalid. A Will must be made freely and without coercion of anyone else.
  • Revocation. If a more current Will exists, or if the testator otherwise revokes the Will that has been submitted for probate, the objection to it may be upheld.

Challenging the validity of a Will usually involves serious, expensive and protracted litigation and division within families. It should not be undertaken lightly or with the hope that a quick settlement will result. Only an experienced estate planning attorney can help you evaluate the case and the wisdom of challenging the Will. Exploring all of the facts and circumstances before filing an action is necessary to determine whether it is prudent. In cases that merit the challenge, you may need both an estate planning attorney and a good trial attorney.

To learn more about contesting a Will or defending an objection to one, contact our office today. The Astill Law Office has provided high quality legal services for over 30 years. We specialize in wills, trusts, estate planning, and asset protection. If you have any questions about creating a Trust, Will, or estate planning in general, contact The Astill Law Office at 801-438-8698.

 

Estate Planning, Uncategorized

Estate Planning: Why are you avoiding it?

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QuestionYou probably understand that having an estate plan is very important, but like most people, you likely think you’ll get to it…eventually. It is normal to have some reservations about estate planning. Below are some of the most common reasons we hear for why our clients have procrastinated in creating their estate plan:

  • Fear of death. None of us like to think about dying. It can be uncomfortable to talk about appointing guardians, personal representatives or trustee. Your loved ones can feel awkward telling you what assets they would like to inherit from you. There is no correct way for having these discussions. As we conduct these types of discussions with clients, it is not unusual for clients to get emotional thinking about the event of death. You should use the approach that works best for you. Just remember that it is better to feel a little uncomfortable but to protect your loved ones and leave them feeling like you cared enough to plan for them, than to leave them resentful that you didn’t take care of matters while you were alive.
  • Fear of emotional upheaval. It can be difficult to deal with highly emotional and stressful situations, especially if you have strained relations with your family members. If you have different goals for your estate plan than your loved ones have, it can cause emotions and tensions to flare. Being forthright with your intentions can allow you to explain what you are trying to accomplish. It also gives you the opportunity to listen to how your loved ones feel. Even if you cannot reach a complete agreement, at least everyone knows where they stand and they are not left wondering. Whether or not to talk to family about your intentions depends on the circumstances. An experienced estate planning attorney can counsel with you on the best approach.
  • Fear of losing control over finances. Some individuals incorrectly believe that they will lose control over their financial security by creating an estate plan. We can help you develop an estate plan that not only makes you feel comfortable with your financial future, but that actually makes you feel more secure. In fact, creating a good estate plan keeps you in control. Instead of a judge deciding who controls your property and assets if you become incapacitated, you get to choose. That keeps you in control.

If you are procrastinating creating an estate plan, don’t delay any longer. Schedule your initial consultation to learn your options and let us eliminate your fears. All of our clients admit that they should have come to see us earlier and that they are relieved that they finally did! We have never had a client feel badly that they completed their estate plan. It is always a big relief, and they are pleased with the process.

The Astill Law Office has provided high quality legal services for over 30 years. We specialize in wills, trusts, estate planning, and asset protection. If you have any questions about creating a Trust, Will, or estate planning in general, contact The Astill Law Office at 801-438-8698.

Asset Protection

Asset Protection with Generation-Skipping Trusts

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Couple giving two young children piggyback rides smilingIf you have worked hard all your life to accumulate your wealth, whether it is a small amount or a significant amount, it is important to protect your assets. Estate planning is a critical element of asset protection efforts. In order for estate planning to be effective, you should try to identify all of the potential “threats” to your assets. Common examples include taxes, the expenses associated with probate actions, former spouses, and creditors.

There are numerous ways we can help you avoid certain threats that could negatively impact or deplete your assets. One option to consider is placing your assets into a generation-skipping trust. As indicated by the name, you skip a generation when naming beneficiaries. In other words, you name your grandchildren as the final beneficiaries instead of your children. This may sound shocking, but there is a twist to this arrangement. Your children can be life beneficiaries, with the Trustee having the discretion to distribute income or principal of the trust to your children during their lifetime.

As a result, because your children do not own or have the right to assets in the trust, the assets are not available to attack by their creditors. The remaining trust assets left after your children die are transferred to your grandchildren. In sum, a generation-skipping trust impacts ownership, not the benefits received or the ability to use trust assets.

The generation skipping type of trust benefits your children and grandchildren, but not necessarily you as the Grantor. If you are working to protect assets for your benefit, there are other strategies such as use of Family Limited Liability Companies (“FLLC”), or Domestic Asset Protection Trusts, or even more complicated arrangements using Off-Shore Trust arrangements.

Generation skipping trusts are just one example of how you can protect your assets. Let us review your individual circumstances and help you understand your options for asset protection and tax advantages for your family. The Astill Law Office has provided high quality legal services for over 30 years. We specialize in wills, trusts, estate planning, and asset protection. If you have any questions about creating a Trust, Will, or estate planning in general, contact The Astill Law Office at 801-438-8698.