Monthly Archives: May 2015

Asset Protection

Qualifying for Veteran’s Benefits

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If you have attempted to navigate the numerous state and federal medical insurance programs, you have quickly realized that the bureaucratic systems can be quite confusing. Working with an experienced elder law attorney at Astill Law Office can save you stress, time and money. In fact, we may be able to assist you in discovering benefits that you were not aware that you qualified for, including the Veteran’s Affairs (VA) Aid and Attendance Program for war veterans.

The VA Aid and Attendance benefit is one that is paid not only to veterans, but also to their spouse or surviving spouse. It is also a benefit that is paid in addition to the veteran’s basic pension. As a matter of fact, eligibility to the VA basic program can assist you in receiving this benefit.

Who qualifies for VA Aid and Attendance benefits? The benefits are paid to applicants who require financial assistance to pay for in-home care, assisted living facilities or nursing homes. It is important to note that the disability does not have to be the result of military service, but you cannot receive non-service and service-connected compensation at the same time. The VA Aid and Attendance benefits are paid to applicants who:

  • Are eligible for a VA pension
  • Were discharged from service under conditions other than dishonorable
  • Meet the minimum service requirements
  • Meet certain disability requirements
  • Meet income and asset limitations as set by law

There are many veterans (and their spouses) who are unaware that they qualify for this benefit. It is common for veterans and their families to tell us that they were never informed that this program exists.

If you or a loved one is a veteran and you are interested in learning more about the benefits you may qualify to receive, let us help. The application process can be complicated, but we will walk you through the process step by step.

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

What is the “Reading” of a Will?

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Many movies portray the reading of a Last Will and Testament as a dramatic event that the entire family attends. Although the reading of wills occurred in earlier times when copying legal documents was costly and there was widespread illiteracy, today dramatic will readings are left only for the movies or television shows. For most estates, the attorney for the deceased will determine who is entitled to receive a copy of your Will so they can read it for themselves.

The individual you appointed as your personal representative or trustee and the named beneficiaries should each be provided a copy of your Will. In some situations, it may be wise for an accountant or an experienced estate planning attorney familiar with taxation issues to also review the Will and decide what it provides regarding paying creditor’s claims and estate taxes.

If certain parties emerge to object to the validity of the Will (for example, disinherited heirs), a copy of the Will is typically provided to them as well. If the challenge to the Will is based upon a question of which of the deceased’s Wills is effective and current, this simple disclosure can generally resolve the dispute. If the dispute is not resolved, your lawyer will want to set a deadline for filing an action to contest the Will.

It is important to note that once your Will has been admitted for probate, it becomes a public record that can be accessed by anyone who is interested in reading it. There are certain situations in which the beneficiaries may seek permission from the probate court to seal the court records and prevent public access to the Will, but you must obtain a court order for this to occur. Most judges only approve this request in rare circumstances. If maintaining your privacy is a critical concern for you, creating a Trust may be an option to consider in establishing your estate plan.

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

QTIP Trusts

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In today’s world of “blended families,” estate planning has gotten more complex. If you have had more than one marriage with children from the prior marriage(s), you are likely concerned with ensuring that your biological children will inherit from you. It is a valid concern because you might be surprised at how often a surviving spouse inherits everything and shares nothing with the decedent’s children.

There are specific ways your estate planner can prevent this scenario from happening to your family. One commonly used safeguard is referred to as a “QTIP trust,” which stands for “qualified terminable interest property” trust. One of the primary advantages of a QTIP trust is it provides you the ability to provide for your surviving spouse and, after his or her death, your beneficiaries as designated by you in your trust.

A QTIP trust is typically funded through the creator’s Will. As a result, the trust will only be funded upon your death. When you die, your surviving spouse will receive the income from the trust for the remainder of his or her life. When the surviving spouse dies, the remaining trust assets will pass to your children or other loved ones specifically designated by you.

The QTIP trust may also assist with deferring estate taxation. Because your property is initially transferred to your surviving spouse, the estate tax marital deduction is applied and postpones the payment of any estate taxes until your children or other beneficiaries receive the remainder of the trust.

If you are interested in learning more about a QTIP trust or you have any other estate planning questions, please don’t hesitate to contact us. 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

Protecting Assets in a Trust During a Dispute

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When there is a dispute regarding the management of the trust, it often begins because the objecting party does not have sufficient information to determine the true value of the trust and/or if trust assets are being depleted. In this situation, it is imperative that you take steps to ensure the trust assets are being safeguarded while the dispute is being resolved.

The most common way to protect trust assets during litigation is to “freeze” them. This means that the court enters an order for injunctive relief, typically on an emergency basis in order to provide protection to the assets as quickly as possible. In order to prove that an injunction order is necessary, it must be shown that there is a likelihood of irreparable harm to the property in the trust and no other adequate remedy at law. Further, you must demonstrate the likelihood of your success on the merits to the court as well as that your interests outweigh any possible damage to the trust.

When trust assets are frozen, they cannot be used or otherwise depleted. In many cases, the court will appoint a fiduciary to supervise and maintain the property in the trust until the dispute has been resolved.

While no two cases are identical, below are a few warning signs that a trust is not being managed properly and you should confer with an attorney:

  • Trustee fails to file tax returns for the trust
  • Trustee fails to file an annual report on the trust
  • Trustee refuses to make financial disclosures, including investments made using trust funds
  • You discover a conflict of interest on the part of the trustee
  • You discover proof that the Will or its original terms and conditions were tampered with
  • The trust has experienced unexplained financial losses

If you believe that a trustee has breached his or her fiduciary duties, contact us for the advice and guidance you need. We can help you determine whether the assets of the trust should be frozen and the best strategy for resolving your concerns.

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, Estate Planning

Credit Shelter Trusts – Not Only for the Wealthy!

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If you are interested in taking advantage of state and federal estate tax exemptions, a credit shelter trust may be a good option to consider. Most people associate this type of trust with millionaires, but there are several reasons to use this type of estate planning even if you have more modest means.

In 2015, the initial $5.43 million in an estate is exempt from federal taxes. This amount increases to $10.86 million for a husband and wife’s joint estate. Additionally, the estate tax is “portable” between spouses, so if the first spouse to die does not use all of his or her $5.43 million exemption, the estate of the survivor spouse can use it. However, it requires a significant amount of proper planning in order for the exemption of the first spouse to die to be effectively used. A credit shelter trust (also referred to as an A/B or bypass trust) is a tool for preserving both spouses’ exemptions. This is especially important in case the surviving spouse remarries. This could cause the loss of the previous’ spouse unused credit.

Many states have an estate or inheritance tax with thresholds that are often much lower than the current federal one. As a result, while it may not make sense to establish a credit shelter trust for federal tax purposes, it may be wise to do so for state tax purposes. For example, if a state inheritance tax applies to estates in excess of $1 million, when the first spouse dies and passes everything to the surviving spouse, the remaining estate could easily exceed the state’s $1 million threshold, leaving it subject to a substantial state inheritance tax. Gratefully, Utah does not have such a tax; but can you guarantee that you will live in Utah at your death? That presents a dilemma that we all face. Life changes and we can’t always predict what those changes will be.

By creating a credit shelter trust, the estate that exceeds the applicable state or federal exemption amount is split between the spouses for each to create a trust to “shelter” the first exemption amount in the estate of the first spouse to die. The terms of the trust typically provide for the trust income to be paid to the surviving spouse and the trust principal to be available to the surviving spouse as determined by the trustee’s discretion. If properly drafted, the credit shelter trust assets will not be considered part of the surviving spouse’ estate at their subsequent death and therefore not subject to estate or inheritance taxation. In short, the couple in our example can safeguard up to $2 million from estate tax while also making the entire estate accessible to the surviving spouse if necessary.

Even better, a credit shelter trust is also protected from creditors of the surviving spouse. Thus, if the surviving spouse becomes liable to creditors for any reason, i.e., medical expenses, personal injury, bankruptcy, divorce after remarriage, or otherwise, those assets in the credit shelter trust are protected from creditors. Sometimes that reason alone is enough to encourage clients to use credit shelter trusts.

If you are considering creating a credit shelter trust, it is important to seek the help of a qualified attorney. 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

Initial Steps to Follow when a Loved One Dies

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When a loved one dies, it can leave you wondering where to turn to next. Not only are you dealing with your grief, but you must also step-up and manage the deceased’s affairs. Before you get overwhelmed with the numerous tasks you must tackle, below is a short checklist of the initial issues you must address:

  • Contact a funeral home or mortuary. You must decide which funeral home or mortuary should be contacted. If your loved one had a specific religious preference, you should notify the appropriate minister, advisor or other leader to assist with the services.
  • Notifications. Drafting a list of friends and family members that should be contacted can be extremely helpful. Making notification calls can be emotionally stressful and you should ask for help. If you have a prepared contact list, it can make this process simpler for everyone.
  • Death Certificate. Usually your loved one’s physician or medical examiner will finalize and execute the death certificate. You will need several certified copies of the death certificate to provide to your loved one’s banks, insurance companies and other similar interested parties. Do not allow the removal of a body from the home without the medical examiner or law enforcement acknowledgement and approval. This can complicate getting a death certificate.
  • Estate plan. If your loved one had a Last Will and Testament, Revocable Trust and/or other estate planning documents, you should confer with a qualified estate planning lawyer to discuss how to handle the probate and distribution of your loved one’s estate.

The above are examples of the initial matters that require your attention soon after a loved one dies. Our next blog titled “Affairs to Handle after a Loved One Dies” will go more in-depth in discussing the other tasks that should be handled after the funeral or other services. Remember, our attorneys are here to help you with everything you are facing when a loved one dies. Also, if you or a family member needs assistance in preparing an estate plan, call us to schedule an appointment.

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

Divorce & Revising Your Estate Plan

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When you get a divorce (or legally separate from your spouse), it impacts every part of your life. Divorce constitutes a major life event, which means that you should review and revise your estate plan. Below are a few of the areas of your estate plan that you should consider updating after your divorce has been filed:

  • Beneficiaries. Most married couples have an estate plan that provides that all of their assets should transfer directly to their spouse upon their death. Presumably, you will want to remove your ex-spouse and name a new beneficiary of your estate.
  • Incapacitation. If your ex-spoue is named as your healthcare agent or financial power of attorney, you should name an adult child, parent, or trusted friend to handle your affairs if you become unable to act for yourself.
  • Account beneficiaries. Updating your estate plan will not change the beneficiary designations you have made on certain accounts and policies. For example, if you have life insurance policies that have your ex-spouse listed as your pay-on-death beneficiary, it is important to contact the life insurance company and update your beneficiary designations. The same is true for accounts such as your retirement accounts or bank accounts.

We understand that going through a divorce is an extremely difficult time in your life. However, to avoid unintended transfers of your assets or having important decisions made on your behalf by your ex-spouse, it is essential to update your estate planning documents as quickly as possible.

If you are facing divorce or another major life event, let us help. We can help you understand the areas of your estate plan that should be reviewed and updated.

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 Estate Planning Easier for Singles?

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It seems most things in life are more difficult if you are single and having to handle everything on your own. However, when it comes to estate planning, singles may have it easier. Creating an estate plan means making numerous important financial decisions. When you are single, you don’t have to confer with anyone else or make compromises during the decision-making process. Once you have decided who you want to be your beneficiaries, your power of attorney or trustee, there is no further debate or argument. On the other hand, a single individual with no children can have some agonizing decisions to make over individual bequests to friends or family or even charities.

Estate planning is especially important for single adults. As we have written in prior blogs, spouses or children are already heirs under the probate code. But if you are single and have no children, your parents are your first heirs, then siblings and then nieces and nephews. That group of beneficiaries is not as intuitive as spouse or children. Also, because you do not have a spouse that can make certain decisions on your behalf under the law, you need to appoint somebody to make decisions if you become incapacitated. In other words, appointing a healthcare proxy or a power of attorney to have the legal authority to make decisions on your behalf is a crucial part of a single person’s estate plan.

An even more compelling case can be made for a single person to complete their estate planning if they have children. Sometimes couples are complacent about planning, because they believe that the survivor will take care of things (not a good plan mind you). A single person can’t rely on a surviving spouse. There is no one who can be relied upon to handle the kids inheritance or set things up if the single person dies. It’s something they just need to do.

Similarly, retirement planning can be easier or more difficult if you are single. Married couples may be better able to save for their future if they have two incomes to rely on for the contributions. It is also helpful if you have somebody to be accountable to when trying to save money. There is an extra incentive to stick to the plan when your partner is there to hold you accountable. On the other hand, inability to agree on goals and objectives, extra expense if only one spouse is employed, and indecision can make it more difficult for married couples. This is particularly true in couples where one is a spender and the other is a saver because the save is not always able to keep the other on track. But a single person has to make affirmative decisions about retirement planning and designating beneficiaries who will receive assets after death.

Whether you are single or married, estate planning and retirement planning are essential to your future. Let us help you create a strategy that will protect yourself and 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.

 

Asset Protection, Estate Planning

Elder Abuse – It Occurs in a Variety of Ways

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If you have a family member or other loved one that is in their “golden years,” the most important thing you can do is to be involved in their life. Although you don’t want to believe elder abuse could happen to your loved one, the truth is that seniors are extremely vulnerable to being taken advantage of. Sadly, many victims of abuse don’t seek help because they are scared nobody will believe them, they are embarrassed, or they worry it will lead to the loss of their independence. In more severe cases, the senior citizen may believe there abuser will retaliate and their situation will get worse.

Most people associate elder abuse with the individual being physically hurt, but there are different types of elder abuse:

  • Physical Assault. Physical abuse can include a wide range of actions such as hitting, kicking, slapping, unreasonable physical restraint, depriving the victim of food or water, sexual assault, or any other tactic used to cause physical harm. The inappropriate use of medication can also be considered physical assault. A recent unusual case was prosecuted in Utah, when the spouse of a person who was determined to be incapacitated had sexual intercourse with them. The lesson here is that if you can’t make everyday decisions, you can’t consent to sexual relations.
  • Neglect. Any action that results in the victim being put in unreasonable danger can be considered neglect. This includes failure to provide help with personal hygiene, malnutrition, dehydration, failure to provide clothing or shelter or preventing health or safety hazards.
  • Emotional Abuse. When the victim is subjected to fear, isolation, confinement, or serious emotional distress, it can constitute emotional abuse. Common examples of emotionally abusive tactics include threats, intimidation and verbal assaults that invoke fear in the victim. Elders are very prone to this when they are isolated and afraid of being left alone. Caregivers can take advantage under these circumstances.
  • Financial Abuse. When an elderly person is no longer able to handle his or her own finances, it opens the door to financial abuse. This may include theft or embezzlement of money an/or assets from the senior citizen. Financial abuse can be anything from having money taken out of the victim’s wallet to having real property frudulently transferred to the abuser.

If you believe your loved one is the victim of elder abuse, it is imperative that you take immediate action.

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.