Many people use revocable trusts, often called “Family Trust” or “Living Trust,” for their estate planning. These are terrific tools and work very well for most people. However, a will is still necessary to guarantee all of your estate is distributed according to your precise wishes. A trust can do many things that a will cannot do, especially managing your assets for your benefit during your lifetime, but there are a few things only a will can do.

Pour-over Will
First, you can put a provision in your will designating the trust as a beneficiary, making sure any asset you may have forgotten is placed in your trust. This provision, often called a “Pourover Will,” pours into the trust anything that was inadvertently or unintentionally left out.

Guardianship
Second, only a will can be used to appoint a guardian for your minor children. A guardian is a person who has legal responsibility for a child in lieu of the parents. They will make decisions about your children’s health, schooling and moral training. If you do not appoint a guardian for your minor children, the court will appoint one and you do not have a say.

Personal Effects
Third, only a will can be used to use the special listing provisions for transferring personal effects or tangible property to the persons you choose.

Many estate planning situations can be benefited by the use of a revocable trust. A trust is an incredibly powerful and useful tool to use in estate planning, but it does not replace having a will. A skillful estate planning attorney can help you decide if having a will and a trust is the best for you.

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.

On our blog, we have discussed the benefits of having a will and the requirements to create a valid will. We have also written about a few considerations you should weigh when deciding whether to have a will. Each individual’s considerations will be different based on their family, friends, charitable interests, and estate, but over the years we have seen that almost everyone worries about how their personal effects will be distributed when they die. A will can help give you peace of mind and ensure your property will be distributed according to your wishes.

Personal property includes jewelry, clothing, furniture, or cars. If you die without a will, your personal effects are distributed to your heirs based on the rules of intestacy. The rules of intestacy are created by the state legislature, which has outlined how a court will divide up all your property. If you die with significant debt or taxes owed, the person appointed to manage your estate may be required to sell some personal effects to cover the debt.

With a will, you can create the ability to prepare a special kind of list that describes who receives the tangible items of property that you have. Many people have family heirlooms, collectible items, family research, gun collections and other such items that have special meaning to some of their children, family, or friends. By adding this specific clause to your will, you can make sure these items are distributed to the persons you believe will most appreciate them.

Many family disputes have resulted from the distribution of personal effects where a person dies without giving thought to these important items. Sometimes sentiment or emotion regarding a tangible item of property means much more than the value of the item. Only a Will can be used to manage this 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.

If you are in the midst of estate planning, you may be wondering whether you need a will. Perhaps you already have a trust, or are thinking of a trust, and therefore are wondering if a will is redundant or unnecessary. You may have already titled your property in such a way where you think you do not need a will, but just want to make sure your distribution intentions will be honored. Maybe you are just starting the estate planning process and simply want to know more about what a will entails. There are many things to consider when deciding whether or not to create a will, but you may find one especially important if you have minor children.

First and foremost, you can choose who will be the guardian of your minor children, and possibly avoid a family legal battle. More importantly, you can select someone who has similar values to yours. A will is the only way you can accomplish this.

Without a will or trust, you cannot control when children receive their inheritance from your estate. Children who inherit your estate through intestacy will receive their inheritance immediately if they are 18 years of age or older. If your children are under the age of 18, a Conservator will be appointed by the court to protect the assets of minor children until they turn age 18. This procedure is protective of your children, but it is expensive. The Conservator must file a report each year with the court, and may have to file a bond with the Court to make sure that the assets of the child are not squandered or lost.

With a will, you can control how and when your minor or young adult children receive their inheritance. Most people do not want their 18 year old children to receive any significant inheritance. In fact, many people don’t want their children to have control over their inheritance until they reach their 30’s, 40’s, or even older. This control is easily established by drafting the terms of the will to create a trust for children who are under a certain age. You can choose a trustee who you have confidence in, who can control and invest the assets, make distributions for education, church service or other reasonable uses, but keep the bulk of the assets from the child until they reach a suitable age that you choose. A trust can be used to accomplish the same thing, but even if you have a trust a will is necessary to make sure all assets flow to the trust when you die.

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.

If you are a caretaker of a family member or friend with a disability, injury, or other special need, you may be wondering who will take care of this person when you are no longer able too. Families face this difficulty every day, worrying not only about who will provide care, but how it will be paid for. To address these very real concerns, the Special Needs Trust (SNT) was established.

What is a Trust
To fully understand what a SNT is and how it works, you first have to understand what a basic trust is. A trust is a written legal arrangement in which one party holds property for the benefit of another. The actual trust is a separate legal entity created to hold assets and real or personal property.

A validly formed trust names a trustor, a trustess, and a beneficiary. The trustor executes the trust agreement, delivering property to the trustee to be held for the benefit of the beneficiary.

Special Needs Trust
A Special Needs Trust, also referred to as a Supplemental Needs Trust, is a legal agreement specifically designed to benefit a person under a physical or mental disability, or with a chronic or acquired illness. The disabled individual is the beneficiary of a SNT, which holds for his benefit an unlimited amount of assets.

One of the most beneficial features of a SNT is that if it is properly formed, its assets are not considered countable assets for purposes of determining qualification for certain governmental benefits like Supplemental Security Income (SSI), Medicaid, vocational rehabilitation, and subsidized housing. For purposes of a SNT and government benefits, an individual is considered impoverished if his or her personal assets are less than $2,000.00.

A SNT can be a stand-alone document or a part of a Will or Family Trust. A SNT must be irrevocable, include provisions for trust termination or dissolution under certain circumstances, and include explicit directions for amendment when necessary. It can be a wonderful tool to assure that your loved one is cared for in ways not possible under normal government assistance.

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.

When considering estate planning, you may have heard the phrase “intestate succession.” If so, you most likely have also heard that you should try and avoid it. It is important to understand what intestate succession is and how it works.

If you die without a will, trust, or other estate planning directive, the law of intestate succession will determine who gets your property. Intestate succession does not apply to property you left behind that was jointly owned by someone who survived you, and it does not apply if your property is held in a trust or you have a valid will.

The following gives a brief summary of Utah intestate succession law:

Spouse and Children
If your spouse is the only family member that survived you, your spouse will get your entire estate. If your spouse has already passed away and only your children survive you, they will get the entire estate, and it will be split up equally among them. If your spouse and your children survive you and all the children are the children of your surviving spouse, your spouse gets your entire estate. If your spouse and your children survive you and any of the children are children of a person other than your surviving spouse, your surviving spouse gets the first $75,000 of your estate plus half of the remainder and all your children split the other half.

Parents
If only your parents survive you, your parents get your entire estate. If neither your spouse, children, nor parents survive you, your estate goes to your siblings. If your siblings have passed away, your estate goes to your nieces and nephews. If there are no surviving siblings or nieces and nephews, your grandparents and their issue will inherit your estate.

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.

When a person dies, the executor of his will initiates a probate proceeding. A probate proceeding is needed to ensure the deceased testator’s assets are distributed properly and in an orderly fashion. It can also protect the deceased’s estate, pay all debts and taxes owed by the testator, and resolve questions regarding who is entitled to what assets.

What is an Estate?
When a person dies, they leave behind an estate. An estate consists of all property that was only titled in the deceased’s name. Any property that had provision on the title regarding ownership for others does not go through probate. If an estate includes land or if the total value of the estate exceeds $100,000, it must go through probate.

What is Probate?
Probate is a court-supervised process for paying bills and distributing property after a testator’s death. A “probate” estate is one that must be probated to distribute the property. This is sometimes confused with a “taxable” estate, which is one that must pay an “estate tax” or “inheritance tax” to either the state or federal government. If your estate is less than $100,000 and does not need to go through probate, it still may be taxable. Conversely, you could have a taxable estate that does not need to be probated.

Probate may be avoided by giving all of your property away before you die, or owning all your property jointly with someone you expect to survive you. You may also title all your property in the name of a trust to avoid probate.

If you die without a will and leave property that requires probate, the law of “intestate succession” will determine who gets your property.

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 will is a legal document created to distribute your estate after you die. The purpose of a will is to avoid messy court proceedings and to ensure that your assets, including real and personal property, are distributed according to your wishes. If you die without a will, you are said to have died “intestate,” and your property will be divided up by a court according to intestate law. This process is often costly, creates friction and conflict amongst family members, and there is no guarantee that property will be distributed the way you wanted it to be dispersed. It is therefore recommended to avoid intestate succession by creating a will. In order for a will to be honored, it must be properly prepared and executed.

Any individual who is of sound mind and 18 years old or older may make a will. The individual creating the will is the “testator.” For a testator’s will to be valid, it has to be:
• in writing,
• signed by the testator, and
• signed by at least two other individuals.

If a testator cannot sign his own will, he can have another individual sign it for him. That other person has to be signing it at the testator’s direction and in the testator’s conscious presence.

The two other individuals who sign the will are witnesses. They have to sign the will in the presence of the testator and of each other. In other words all three, the testator, and the two witnesses have to be present and witness and acknowledge the execution of the will by each other.

If a will does not meet these requirements, it may still be honored if it can be considered a valid holographic will. To qualify as a holographic will, the terms of the will need to be written out in the testator’s handwriting and the document has to be dated and signed by him at the end of the document.

These are very technical requirements and if one of these requirements is not met, the deceased’s estate will be distributed through intestate succession.

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 trust is a legal entity you can create to hold assets and property for the benefit of another individual. The purpose of a trust is to protect, hold, and manage your private wealth for the benefit of your heirs. In order for the intended individual to receive the designated assets, the Trust must be properly formed.

Trust Participants
A validly formed trust names a settlor (sometimes referred to as a trustor or grantor), a trustee, and a beneficiary.

The settlor creates and funds the trust. He then delivers the trust property to the trustee.

The trustee is the individual, institution, or organization that will hold legal title to the trust property for the benefit of the beneficiary. The trustee also manages and administers trust assets. The settlor can serve as the trustee. A settlor may name successor trustees as well.

The beneficiary is the person who is to receive the benefits of the trust. In general, any person or entity may be a beneficiary.

Methods of Creating a Trust
A trust is created by executing a Trust Agreement and transferring property to the Trustee. To fund a trust, property can be transferred to the trustee or titled in the name of the trust during the settlor’s lifetime. Property can also be transferred to a trust upon the settlor’s death by will or some other disposition (such as naming a trust as the beneficiary to a life insurance or retirement fund).

Requirements for Creation
A valid trust is only created if:
• the settlor has the mental capacity to create a trust,
• he indicated an intention to create the trust, and
• the trust has a definite beneficiary.

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.

It is important to understand the need for both a Medical Directive and a Power of Attorney. Both are needed to ensure medical decisions, property, and assets are handled properly.

MEDICAL DIRECTIVE
A Medical Directive (MD), sometimes called a Healthcare Directive, is a written document in which you authorize another person, your agent, to make medical decisions on your behalf. It records your healthcare wishes, and allows your agent to execute them if you are unable to because you have become mentally incompetent or physically incapacitated. For example, if you are in a coma and a doctor or other medical professional cannot communicate with you about your health care needs, a MD allows your agent to talk to them.

If you do not have a MD and are in a position where you cannot make healthcare decisions for yourself, a court will appoint a legal guardian who will make them for you. A guardianship is a costly and time-consuming process. An attorney must appear in court for the person who is trying to become the guardian, and another attorney is appointed for you. Once a guardian is appointed, the guardian must file an annual accounting with the court.

Although the guardianship process is intended to protect you, it is not guaranteed that your wishes will be as protected as if you had hand-picked a trusted family member or friend to execute a MD. Your appointed MD agent makes decisions based on what you noted in your MD and what you discussed with him prior to your incompetency or incapacitation. A court appointed guardian does not have this background information

POWER OF ATTORNEY
Just because somebody has Power of Attorney (POA) does not mean they can make medical decisions for their principal. However, it is still important to execute a POA to make sure financial affairs, such as medical expenses, are taken care of. Furthermore, if you do not recover from your incapacity and have not given somebody POA, no one else will have the legal right to access your accounts and take care of your financial matters for you.

For example, if you have a trust, but did not have a chance to title all your assets in the name of the trust, the opportunity to fund and use the trust could be lost. If you have appointed a POA, however, he will become a “fail safe” device to preserve the benefit of the trust.

To avoid the potential of costly and unnecessary court proceedings, you should consult with an attorney to ensure that you have a valid Medical Directive and Power of Attorney in place. The Astill Law Office provides quality and comprehensive estate planning. We take pride in the contributions we are able to make to our clients’ estate security. If you have any questions about creating a Power of Attorney or Medical Directive, contact The Astill Law Office at 801-438-8698.

Almost everyone has heard of a Power of Attorney (POA), but not everyone actually understands what a POA is, or why having one is important. A POA is a written document that allows you to legally assign another person to do specific acts for you. This can be especially important if you are getting older, leaving the country, or are otherwise indisposed. This appointed person will act as an “agent” on your behalf, and can do things such as signing your name for you, handling your financial affairs, and taking care of a variety of other functions.

Examples of Function
If you were to become mentally incompetent or physically incapacitated, the person you have given POA could continue to pay your monthly bills on time so your mortgage is current and your gas and electricity are not shut off. An agent with POA may also execute a stock power, handle a tax audit, and maintain a safe-deposit box.

Duration of a POA
You, the “principal,” have the power to revoke the POA at any time. If you never revoke a POA, it will generally expire when you die. Because it expires, it is not a substitute for having a valid will or trust. However, a POA is still a helpful estate planning tool. For example, an agent with POA can put your assets in the name of your trust to make sure the trust is funded.

Requirements of a POA
The requirements for a valid POA are different in many states. There are also different requirements for different types of POAs, such as Durable POAs, POAs for childcare, and Limited POAs. That said, most states typically require a written document signed by the principal, some evidence that the principal was competent, and notarization. Some states also require witnesses to the signature, but even if a witness is not required, it is still important to take measures protecting the powers being granted. That is why it is always recommended you consult an attorney when executing a Power of Attorney.

Dennis Astill has provided high quality legal services in the Salt Lake City area for over 25 years, representing individuals as well as public and private companies. The Astill Law Office focuses on estate planning and business and tax matters. 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.