Category Archives: Estate Planning

Estate Planning

Can You Trust Estate Planning Software?

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If you are considering creating your estate plan by using Do-it-Yourself software, you should reconsider. Many people believe they will save money by not hiring an estate planning attorney, but what you do not know can cost you dearly. Below are a few facts you should consider before trusting a software program to create your estate plan:

  • When you use a DIY program, the documents you are provided may not have been created by an attorney. Even if a service center is available to answer your questions, the individuals you speak to are prohibited by law from giving you legal advice if they are not licensed attorneys. As a result, if you require any assistance that is outside filling-in blanks on a form, the software program or the company’s representatives cannot provide help or give you advice because it would constitute the unauthorized practice of law.
  • An estate planning lawyer is required to stay on top of changes in the law (include tax laws), which can occur frequently. When you use a computer program to establish your estate plan, you have no guarantee that the forms you are using comply with the current law. In fact, inaccuracies in DIY forms are usually not discovered until it is too late to do anything about it.
  • Generic documents and a software program cannot consider your individual circumstances like your lawyer can. If you have situations that are outside the norm, a computer program will not have the flexibility or expertise to properly handle it.

 

Don’t fall into the trap of believing a DIY software program can replace a knowledgeable and experienced attorney. The small fee you pay a lawyer to assist you will be minimal when compared to the time, money and stress it will save you and your family. Think of it this way – if you own assets valued at $400,000 (if you include IRA’s, life insurance and house, this is a very modest estate), and it costs you $2,000 to do your estate plan, that’s ½ of 1% of your assets. Is it worth it to spend a minute fraction of your assets to make sure you don’t waste them on probate or taxes, and they go to who you want – without a dispute?

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

Probate Property – What is it?

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When you think about your estate going through probate, you may wonder what it means for your property. Probate is the procedure used by the court to administer the estate (i.e. pay creditors and locate assets) of a deceased person, including distributing his or her assets as directed by a will or under the law.

So, what constitutes probate property? Any assets held solely in the name of the decedent are considered property of the probate estate. Common examples of probate property include:

  • Real property (houses, commercial property, land, rental property)
  • Cars, trucks, boats, ATVs, and motorcycles
  • Bank accounts
  • Investments
  • Stocks and bonds
  • Proceeds from a life insurance policy (if payable to the decedent or his/her estate)
  • Any other personal or real property

The above list is not exhaustive and there could be a variety of other types of assets that could be included in your probate case. Thus, it may be easier to understand the types of assets that will not be included in a probate action such as:

  • Property the decedent owned jointly with another party
  • Assets where there is a designated beneficiary upon death such as life insurance and retirement assets
  • Pay-on-Death or Transfer-on-Death accounts
  • Life estate assets of the decedent

Again, this list is not exhaustive. In sum, however, assets that are not included in the probate process are those that no longer belong to the decedent at the time of his or her death because they transferred by operation of a contract or under the law.

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

Using 529 Plans as Part of Your Estate Planning

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As the cost of higher education continues to rise, many parents are worried about whether or not their children will be able to afford to attend college or other advanced school. If you are interested in helping your children, grandchildren or other loved ones with paying for college, you may want to consider using a 529 plan as part of your estate planning efforts. A 529 plan gets its name from Section 529 of the Internal Revenue Code, which established the education plans in 1996.

A 529 Plan is a savings plan created solely for the purpose of funding an individual’s education. These plans are operated by state or educational institutions. A 529 Plan allows your family to make donations throughout the child’s life to assist with saving for future expenses related to their education.

Each state offers at least one type of 529 plan, each with its own benefits. Thus, it is important to confer with your estate planning attorney to discuss which plan best fits your needs. You do not have to choose the 529 savings plan offered by the state where you reside. You can choose any plan and the money saved in it can be used to pay for any qualified educational institution across the country. The state where your 529 plan was created does not impact where you must attend college.

To learn more about the tax benefits of establishing a 529 plan, please read our blog titled “Do 529 Plans have Tax benefits?”

Finally, it should be noted that some people prefer to use an irrevocable trust for education because of the flexibility a trust provides and the ability to control the funds while serving as the trustee. If you are trying to decide whether a 529 or an irrevocable trust would be more beneficial for you and your loved ones, call us 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

Tips for Managing Your Important Records

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Creating an estate plan is one of the most important things you can do for your loved ones. However, it is still essential that you keep your supporting records organized. This will make it easier for your family to handle your affairs when you die. Below are a few suggestions for organizing your records:

  • Establish a storage system. Go through your paperwork and get rid of any unnecessary documents. Sort the important records and create a filing system that keeps them organized.
  • Protect important records. It is important to safeguard your original documents that cannot be replaced in a fire-proof safe or a safety deposit box. We strongly urge clients to use safety deposit boxes. Unless you have a very expensive “in wall” safe, set in concrete, it is unlikely the safe will really stand up to a home fire. Examples of documents you should store safely include your estate planning documents, passports, insurance policies, deeds to real property, titles to vehicles, birth/marriage certificates, and other similar records.
  • Separate tax materials. If you maintain a separate file for the documents you will need for your tax filings, it will make the process much simpler when tax time comes.
  • Confer with professionals. You should let your attorney and financial advisors keep a copy of all of your essential records.
  • Consider online back-up. You may wish to scan and store your records online. There are a variety of websites that provide these services or you can upload your documents to a password-protected hard drive.

The above steps may seem a bit overwhelming to you, but once you establish a document system for your records, it will be easy to maintain. If your home should catch fire or be destroyed in a storm, you will feel relief knowing that your important records are 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.

Estate Planning

Do you want to be an Organ Donor?

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Our estate planning attorneys are well aware of the heartache associated with trying to decide if a loved one would want to have his or her organs donated to save others. This is an extremely difficult decision for your loved ones to make on your behalf, so it is important to make your wishes known in your estate planning documents.

The statistics from the website for Donate Life America speaks volumes:

  • More than 123,000 men, women and children currently require life-saving transplants
  • Every 10 minutes, another name is added to the National Organ Transplant Waiting List
  • On average, 21 people die each day due to the lack of organs available for transplant
  • 90% of Americans say they support donation, but only 30% know the essential steps to take to be a donor

When we create your estate plan, you can make your wishes concerning organ donation clear using an Advanced Health Care Directive. Many individuals make their wishes known regarding organ donation by designating it on their driver’s license or executing an organ donor card. However, when you make organ donation decisions in your estate plan, you are more likely to discuss them with your loved ones. You can also specify which organs you want or do not want to donate. However you do it, making your organ donation wishes known to your loved ones will make it easier on them and for the healthcare professionals that are caring for you.

Let us help you make decisions regarding your future. We can assist you with creating your advance directives, which includes instructions on end of life care. Making decisions regarding your health and organ donation is extremely personal, so let us ensure that your wishes are legally documented and accessible if an emergency occurs.

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

Preserving Collections as Part of your Estate Planning

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If you are a “collector” of something, you probably want to pass your collection on to your loved ones when you pass. Your collection may range from something sentimental like your family photographs to monetarily valuable items such as classic cars, artwork or antiques. Whatever type of collection you have, it is essential that you take certain measures to preserve them so that they can be passed down through the generations of your family. Consider the following:

  • Physical Storage. Depending on the type of collection, you should likely store the items in an acid-free and cool storage space. In most circumstances, you should avoid storing your items in hot attics or damp basements.
  • Digital Storage. Keeping a digital copy of your collection has gotten easier with the numerous websites that offer this type of service. Having a digital copy of your collection can allow you to display or share your collection with others while maintaining the original collection in a safe place. If your collection includes photographs, digitizing them is a simple way to store them online.
  • Assist with Preservation. There are numerous archival products, such as buffered tissue or polyethylene sleeves, that can assist you with preserving your collections. It is important to understand how to properly store your collection and take advantage of the products that can assist you with doing it properly.
  • Inventory. It is important to catalogue your items and the value of your collection. This is one of the most helpful things you can do for your loved ones who may not understand the value of your collection or why it meant so much to you.

Your collection represents a lifetime of work and care for something that is important to you. In order to ensure that your collection is transferred the way you want in your estate plan, contact us today. Collections present a unique challenge in your estate plan, sometimes because of value and sometimes because of the nature of the asset. Making decisions now can help your family avoid serious disputes and destruction of what you spent years putting together.

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.