If you leave property for someone in your will, and that person passes away, where does your property go? Most states address this issue with an “anti-lapse” statute. We explain how these work.

Let’s say you make a will and leave all our property to your son. You are the “testator,” and your son is the sole “beneficiary.” When a beneficiary dies before the testator, the gift fails, “lapses.” That means it will go through the residuary clause of your will, which states what is to be done with all your property not given to a specific beneficiary. If you do not have a residuary clause, or the beneficiary of the clause has also passed away, your property will be distributed according to intestacy laws.

An anti-lapse statute is intended to prevent the gift from failing. These statutes provide that if the predeceased beneficiary was a relative and had issue, the anti-lapse statutes provide for substitution of the deceased beneficiary’s issue to take the gift instead of the beneficiary himself. In other words, consider again the example where you left all your property to your son who passed away. If your son had children, an anti-lapse statute would allow your gift to your deceased son to pass to his children. That may or may not have been your intent, but that’s what happens.

tates have various definitions for which relatives qualify under their respective anti-lapse statute. Utah has enacted anti-lapse statutes that apply to wills, revocable trusts, and also beneficiary designation arrangements. The statutes apply where the predeceased beneficiary is a grandparent of the decedent, a descendant of a grandparent of the decedent, or a step-child of the decedent.

Frankly, we think it’s inexcusable to rely on an anti-lapse statute. It’s a fail-safe that is intended to assist the testator who had a self-drafted will or trust, or went to someone that really didn’t have the skills to prepare estate planning document. It is a bad practice to fail to designate successive beneficiaries. At our office we try to anticipate all of the possible scenarios that can happen, including a named beneficiary predeceasing the testator or trust grantor. We anticipate the worst case so you can make informed decisions.

We have plenty of examples to draw from. One client recently stated that if his children and their children predeceased him, he would like his living siblings to receive everything per capita, along with his church. The anti-lapse statute would not provide that. It’s imperative to use a competent estate planning attorney who specializes in this area.

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.

Believe it or not, spouses are forgotten in estate plans all the time. The situations vary from innocent forgetfulness to mischievous and deliberate attempts at disinheritance.

Here are some instances we have seen:

• A husband leave his second wife out of his Will and instead leaves everything to his adult children from a prior marriage.
• A spouse remarries, but does not change the Will that had the first spouse as the sole or main heir.
• A spouse jointly titles all marital property and does not mention the spouse in the Will.

If your spouse did not provide for you in his or her will, there are legal protections. Most states, including Utah, have laws providing for a surviving spouse’s elective share. An elective share allows a surviving spouse to receive up to one-third of the decedent’s “augmented” estate if the spouse was not mentioned in a will or he or she is dissatisfied with what is left to them in deceased spouse’s will. The augmented estate is composed of all marital property owned by either the husband or the wife. Marital property includes property earned during marriage, including income and appreciation.

A surviving spouse elective share law protects a spouse from being disinherited. This means if your spouse disinherited you or left you very little in his or her will, you can elect to receive one-third of his or her estate, even if your spouse intentionally tried to transfer all of his or her wealth to a trust.

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 your estate plan or your spouse’s trust or will, contact The Astill Law Office at 801-438-8698.

The role of a trustee is very important, and entails many responsibilities. The trustee of your Trust will be in charge of distributing trust assets and managing the trust property for the benefit of the trust beneficiaries. Though the job is important and a big responsibility, you can split it up amongst multiple trustees to lighten their load. You should also consider a corporate trustee for long term trusts. Our experience has shown that if a trust is managed by an individual over a long time, they tend to either neglect the trust, or make mistakes that corporate trustees just don’t do.

Most trusts are set up with a single trustee, but you can assign multiple trustees, or “co-trustees.” The actual trust document will name the trustees, each trustee’s duties, and their authority. The most basic trustee duties include managing trust assets, filing taxes, distributing trust assets, and if there are multiple trustees, cooperation with other trustees. Cooperating with co-trustees can be the most important duty when multiple trustees are named in a trust.

There are many reasons why you may want to consider multiple trustees. For example, when you only have one individual Trustee, he or she will always need to be available to participate in the administration of the trust. That works fine in a short term situation. But it can create problems over long periods of time. It means that regardless of what is going on in the Trustee’s life, may it be illnesses, travel, personal or business problems, or anything else that might divert the Trustee’s attention from trust administration, he or she still need to be available to perform trust duties and communicate with beneficiaries.

Furthermore, the age old adage “two heads are better than one,” applies to trust administration. Co-Trustees can combine their skills and knowledge to best serve the Trust. They also can serve as sounding boards for each other. One co-trustee can handle whatever needs to be done if the other co-trustee is temporarily indisposed.

If co-trustees butt-heads, or if one co-trustee disagrees with an action by another co-trustee, he has the authority to object in writing to that action and, if necessary, submit a petition to prevent the action it in probate court. In most cases, such an objection will shield the co-trustee from legal action and liability for any negative consequences.

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.

Robin Williams touched the lives of generations, and his tragic death was the first time he made his audience devastatingly and deeply sad, in place of the usual belly-laughs he could so easily evoke. Aside from drawing attention to mental health and addiction issues, his death is another reminder to all of us to have our estate planning ducks in a row.

It is not entirely clear how much Williams left behind for his heirs. He was reportedly worth around $130 million two years ago, but recent estimates have pegged his net worth at $50 million. Any guesses about his net worth would only take into account a part of his estate anyway. For example, his net worth does not factor in life insurance. Notably, in most cases life insurance policies do not pay out for suicide. Some life insurance policies will if the suicide happened more than two years after the policy was issued, but any recent life insurance policies from the last year or two would likely be void.

Fortunately, Williams set up some sound estate planning documents. It appears that Williams had at least two Trusts set up. The first trust allegedly holds Williams’ valuable pieces of real estate. Real estate holding trusts, when made irrevocable, and used properly, can often keep real estate outside of a person’s taxable estate. The second trust reportedly names Williams’ three children as beneficiaries, splitting their trust funds into equal distributions.

Wisely, Williams took advantage of sophisticated estate planning to protect his loved ones. If nothing else, the trusts work to safeguard privacy for Williams and his family. When used properly, trusts help avoid probate court and keep their affairs private.

While you may not need an estate plan quite as sophisticated as the one Williams used, a trust is for anyone who wants to help the family members avoid the publicity, cost, and stress of probate court, and can also be used to manage assets for beneficiaries who may not be ready to manage for themselves. 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.

James Gandolfini passed away suddenly last year, leaving not only his legacy as the star of The Sopranos, but also an estate plan we can all learn something from.

The star’s death was shocking, especially for the two young children Gandolfini left behind. Luckily, Gandolfini did have a will, albeit a hastily made one after his daughter was born. You may be wondering why the affairs of his estate are so public, and why estate planning attorneys all over the country are using his death as a “What Not To Do In Estate Planning,” example. The fact is, instead of using a revocable living trust to keep his affairs private and outside of probate court, Gandolfini’s estate plan boiled down to primarily his will.

Wills must pass through probate and they become public record, exposing all the gifts made in them to the whole world. Probate is also more expensive, and gives more opportunity for family fighting. The takeaway here is to certainly have a well drafted will, but to also create a Trust.

Gandolfini’s will divided his estate, estimated to be worth between $70 million and $80 million, among family members and others close to him. Unfortunately, it did not properly address all his property or whether his children would be ready to inherit millions of dollars in their early twenties. His daughter, will receive 20% of the balance of his assets that pass through probate court when she turns 21. That could be as much as $4.0 Million. Does anyone believe a 21-year old has the maturity to receive and properly manage $4.0 Million?. If Gandolfini had created a trust, or at least a decent will, he could have laid out exactly when monetary gifts were to be distributed, and in what amounts.

The lack of a trust led to other unnecessary complications, including publicity, and estate taxes that could have been avoided. If Gandolfini had established a trust and a good plan, he could have taken full advantage of the $5.12 million lifetime exemption for estate taxes and done a lot more.

Gandolfini was only 51 years old when he passed away. Like many people, he started his estate plan before he left for vacation, and probably said the famous words we all use too often, “I’ll finish it later.” Six months passed, and he never completed his estate plan. Tragically, he suffered a sudden heart attack which took his life.

Do not make the same mistake of putting off finishing your estate plan. If you have not started yet, it is never too early. 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.

One of the main reasons people painstakingly plan out how their estate is to be distributed when they pass away is to avoid family disputes over property and other assets. Unfortunately, even the most ironclad estate plan sometimes become the object of a will contest or other litigious proceeding. This has given rise to people putting “no contest” clauses in their estate planning documents. Although these sound like a great idea, there are a few important things you need to know about this clause before you think that it will solve all of your family problems.

No Contest Clause
A will or trust contest is brought by somebody claiming an estate plan document is not valid or that it does not do something properly; and sometimes doesn’t do something the contestant says you promised. The argument that a will or trust is not valid is usually based on allegations that the person who created the document did not have the requisite mental capacity to do so, or was unduly influenced.

A “no contest” clause is designed to discourage relatives from contesting your will or trust. It is basically a paragraph in your will or trust document that states that anyone who mounts a legal challenge against your will or trust, and loses in court, cannot inherit anything.

No-Contest Clauses in Utah
In Utah, no contest clauses are only enforceable against people who bring contests without a reasonable basis for the claim. This means that the will or trust contest has to be completely frivolous. The courts discourage these clauses in order to protect family members who should otherwise be allowed to inherit, or may have been forgotten; and the courts generally do not like the idea of “forfeiting” your legal rights. But even with that, it’s a good clause to have in your will or trust.

If you are worried about terms in your estate planning documents being contested, consult with an experienced estate planning attorney. A no-contest clause may be part of the solution, but the attorney can also give you other solutions to avoid unintended results in your 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.

A Trustee of a Trust has very specific responsibilities. In addition to making sure the trust is administered for the benefit of the trust beneficiaries, there are specific laws regarding how the trustee should manage trust property. Because the role is so important and often involves large sums of money, the consequences of breaching trustee responsibilities are quite grave.

Trustee Responsibilities
Trustee responsibilities include the:
• Duty of Confidentiality
• Duty of Loyalty
• Duty to Notify Beneficiaries
• Duty to Protect Trust Property
• Duty to File Tax Returns
• Duty to Prudently Invest Trust Funds

Consequences of Breach
If a trustee fails to faithfully perform his or her duties, he or she may be subject to a variety of sanctions. The beneficiaries can bring a lawsuit against the Trustee that could result in removal as trustee, monetary damages, denial of Trustee compensation, and even the reversal transactions that the Trustee may have entered into improperly. In extreme cases, if the Trustee’s breach of his fiduciary duties resulted in a loss or substantial risk of loss to the beneficiaries, a Trustee may be subject to criminal liability.

Sometimes a Trustee may be dutifully fulfilling his or her responsibilities, but makes a mistake or is faced with difficult beneficiaries. In this event, to protect him or herself from monetary fines, a trustee can obtain errors and omissions insurance or even a bond to guarantee his fidelity to the Trust.

Consultation with Attorney
It is wise for a Trustee to consult with an attorney about his or her duties. We recently worked with a Trustee who had not done so and had made major errors in distributions and transactions. That Trustee had to pay back several thousand dollars to the Trust and luckily could. If you are a beneficiary and aren’t getting reports or you suspect the Trustee is not acting properly, you should immediately consult an attorney to reduce the risk of losses to the Trust.

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.

Picking who will serve as a successor Trustee for your Trust (after you are gone or during incapacity) is an extremely important decision. Before choosing who is going to be in charge of holding legal title to the Trust property, consider all the responsibilities associated with that role. It is equally important for whoever you choose to serve as Trustee to understand the powers and responsibilities associated with the job. The following summary outline can be helpful to show a Trustee what his or her job will entail.

1. Read the Trust
The Trust instrument will specifically outline the Trustee’s administrative responsibilities, powers, and restrictions on powers as well as the beneficiaries’ rights to distributions. It is therefore important for the Trustee to read the entire Trust.

2. Duty of Confidentiality
The Trustee owes a duty of confidentiality to the beneficiaries with respect to all of the Trust terms.

3. Managing the Trust for the Benefit of the Beneficiaries
Every action the Trustee takes in connection with the Trust must be for the benefit of the beneficiaries.

4. Duty to Protect Trust Property
The Trustee must administer the Trust in a prudent manner to protect Trust property. This includes enforcing Trust claims, keeping appropriate records, making safe and wise investments, and incurring only reasonable costs.

5. The Duty of Loyalty
A trustee owes the Trust beneficiaries a duty of loyalty. This means the Trustee may not engage in any transaction with the Trust or with any Trust beneficiary. In other words, the Trustee cannot borrow or lend money from or to the Trust or a Trust beneficiary, buy or sell property from the Trust or a Trust beneficiary, or take away a Trust’s potential business opportunities.

6. Inform Beneficiaries
Another duty the Trustee has it to keep the beneficiaries fully informed about Trust operations. This entails:
• providing each beneficiary with a copy of the Trust instrument,
• sending a periodic accounting to each beneficiary,
• notifying the beneficiaries before the Trustee takes any significant action with regard to the Trust,
• notifying the beneficiaries when a new Trustee takes office
• notifying the beneficiaries when a revocable Trust becomes irrevocable as a result of the settlor’s death, and
• notifying the beneficiaries when the Trustee’s compensation changes.

7. File Tax Returns
The Trustee is responsible for filing annual federal and state tax returns, reporting the income earned on Trust assets.

8. Prudently Invest Trust Funds
When it comes to investing Trust funds, the Trustee is held to the standard of a “prudent investor.” This means he or she must think about the Trust purpose, terms, and distribution requirements whenever making investment decisions. The Trustee also needs to hold a diversified portfolio of assets for the Trust to minimize loss and have an investment strategy with risk and return objectives that are reasonably suited to the Trust. Sometimes this means working with a professional investment advisor to make sure Trust assets are adequately protected.

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.

You have probably heard that a Trust can be a valuable estate planning tool. Before making any decisions about whether to have one, what kind to create, and whether or not to have any other estate planning tools, make sure you understand all the benefits of a Trust and all the things one can do.

A Trust is a written document that allows you to legally transfer your real property and your personal property to your loved ones upon your death. Think of a Trust like a bucket; it holds all your property and it just needs a guiding hand to pour it out in the right way.

Avoid Probate
Although probate in Utah is not as awful as it can be in some states, it can still be expensive and burdensome. A Trust can distribute your assets more efficiently than the probate process can, and without the hundreds or thousands of dollars in court and attorney fees associated with probate.

Also, by avoiding probate, the terms of your Trust remain private. If you have a Trust and become incapacitated, you avoid the need for the court to appoint a conservator, which is another public proceeding. With a will, an announcement needs to be placed upon your death so that creditors can file claims they may have against you and relatives can contest your will. This is avoided with a Trust, and your beneficiaries will remain confidential.

Probate can take months or even years. If you have a Trust, your estate can be settled in just a short time after your death because there won’t be court delays or judicial interferences.

Maintain Control
Your Trust document contains instructions for managing your assets in the event of your death or incapacity. While you are able, you still have full control to buy, use, spend, or even give away your Trust property. You can sell property, change your beneficiaries, change your Trustee, or even revoke the Trust as a whole. Then when the time comes when you are unable to handle your own affairs, your previous work in establishing the Trust will make sure your affairs are handled according to your wishes.

Eliminate or Reduce Estate Taxes
With a Trust agreement, you may reduce or even eliminate estate taxes which could otherwise be charged against your estate upon your death.

Effective Pre-Nuptial Planning
A Trust can be an effective pre-nuptial planning tool. Any property that you place in your Trust before you marry is the property of that Trust. That means it stays separate from any property accumulated during your marriage, making it your separate property and not marital property for divorce purposes.

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.

We are constantly stressing the importance of having a well-rounded estate plan, elements of which include both a will and a power of attorney. Before having either document drafted, it is imperative to understand the nuances of both. For example, did you know that there are two types of powers of attorney? There is a durable power of attorney and a non-durable power of attorney. Knowing the difference between the two is necessary to make sure you create a document that suits your needs.

Non-Durable Power of Attorney
A Non-Durable Power of Attorney automatically terminates if you become incapacitated, and at death. This means the agent you appointed in the document will lose authority after any one of those circumstances occurs. When that happens, a court will have to appoint a conservator for you to handle your personal and business affairs.

Durable Power of Attorney
A Durable Power of Attorney, which usually includes a “financial” or “general” power of attorney, will become or will continue to be effective even if you become incapacitated. A Durable Power of Attorney can be created by including certain specific statements in the document. These statements need to be very well drafted, and they make the difference between a durable and non-durable power of attorney. As with the Non-Durable Power of Attorney, a Durable Power of Attorney becomes ineffective immediately upon the death of the creator of the power.

The Power of Attorney is a very important document in your estate plan, but it can also be the most dangerous document you will sign. It can be dangerous because they often grant broad, mostly unchecked, power to someone else to handle your finances. That said, it should still be included as part of your estate and financial planning. It can be used in many ways to save you money and time in the long run, and it does not cost a lot of take much effort to draft and execute one. Creating a Power of Attorney can save the hassle of going to probate court to have a conservator appointed if you have an illness or accident that prevents you from handling your personal and business matters. They are an essential tool to help fund your living trust if you become incapacitated.

If granting broad powers to someone to conduct business on your behalf is a concern, limitations can be placed in the document, limiting its effectiveness unless you are incapacitated. All of this should be discussed with your attorney and understood by you.

It’s also important to remember to “refresh” your power of attorney. If it is more than 3-5 years old, many financial institutions are reluctant to accept the power of attorney, even if it is legally valid.

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