We cannot emphasize enough that in order for your Trust to be effective, it needs to be fully funded during your lifetime. Your trust will be considered fully funded when all your assets are transferred into the name of the trust. If a trust is fully funded, then there is nothing left to pass through a will. This means the probate court process can be completely avoided. If assets are left out of your trust, your loved ones may have to deal with the probate process.

Take for example the case of the late Fast and Furious star, Paul Walker. We know that Walker had a will, a trust, and 25 million in assets. The reason why we know so much about his personal affairs is because he did not fully fund his trust.

Instead of putting all of his assets in a trust, Walker relied on his will. His will is a “pour-over” will, which is an instrument that passes assets into a trust upon one’s death. Ultimately, the end result of a pour-over will is the same as if there was a fully funded trust, because the trust still dictates who receives the assets and when. However, if the trust had been fully funded, the public scrutiny of Walker’s personal assets and the cost and hassle of probating the will could have been avoided. Had the trust been fully funded, Walker’s family affairs would have been kept private because there would not have been a will or public record probate filings.

Walker most likely did not have all of his assets titled in the name of his trust because he was so young. His death was heartbreaking, premature, and untimely. Still, a lesson can be learned that it is never too early, and you are never too young, to fully fund your 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.

Legendary radio personality Casey Kasem died on June 15th of 2014. In his last few months, Kasem had been suffering from Lewy body disease, the most common type of progressive dementia after Alzheimer’s. Simultaneously, he was the subject of a bitter court battle involving three of his children from a previous marriage and his current wife, Jean. His oldest children were challenging their stepmother for control of Kasem’s medical decisions, serving as a tragic reminder of how important it is to have a medical directive.
In 2007, after Kasem was diagnosed with Lewy Body disease, he executed a healthcare directive and appointed Kerri, his daughter from a prior marriage, instead of his wife, Jean, to make his medical and end-of-life decisions. The document stated that Casey did not want to be kept alive if it “would result in a mere biological existence, devoid of cognitive function, with no reasonable hope for normal functioning.” Casey’s document nominated Kerri, not Jean, to make the important decision of when it was time to honor this wish and effectively end Casey’s life.
Kasem’s daughter Kerri was able to win legal authority to end Casey’s suffering and have him taken off life support because of the executed healthcare directive. Sometimes called a living will or medical power of attorney, a healthcare directive allows a trusted loved one to make medical decisions, such as ending life support, when you are no longer able to.
It is tragic that Kasem’s last days consisted of a family legal battle. To avoid this happening in your own family, make sure you and every other adult over the age of 18 executes a health care directive. In the event you suffer a debilitating injury or disease, you can chose the person you most trust to carry out your medical decisions. Thankfully Kasem did exactly that, bringing his suffering to an end.
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 executing a healthcare directive or estate planning in general, contact The Astill Law Office at 801-438-8698.

One of our main concerns in the estate planning process is asset protection. There are unique asset protection concerns for our estate planning clients who own businesses. For example, did you know that if you own a business, even if you operate a corporation or limited liability company, the business’s creditors could potentially go after your own personal assets? That process is called “piercing the corporate veil,” and this article is a brief summary of how that works.

Business owners often organize their company into an entity, like a corporation or Limited Liability Company (LLC). This is done specifically to limit each individual owner’s personal liability. Piercing the corporate veil allows creditors to reach through the corporate structure and collect a business’s debts from the business’s shareholders or owners.

In order for a creditor to pierce the corporate veil, it has to prove certain factors that can be hard to prove in court. These factors include:

• Defective or Inactive Formation: If the owners did not meet the legal requirements needed to form the entity, whether it is a corporation or LLC, then no entity exists to shield owners from liability. Likewise, each state imposes annual franchise fees or report-filing requirements on entities. If a company fails to keep up with these, the corporation or LLC will legally cease to exist, resulting in owner liability. This happens frequently. Don’t let this happen to you!
• Undercapitalization: If a company does not have a reasonably sufficient amount of capital to pay its expected debts, this shows potential undercapitalization, which could be grounds to impose liability on the owners.
• No Separateness of the Company: If business owners are interchangeably doing business in their own name and sometimes in the business’s name, this lack of separateness could justify piercing the corporate veil. A lack of separateness is also evident if there is commingling of company and individual assets, or transferring of assets between the company and an owner without formalities. A common mistake is to put company checks in your personal account or to pay company bills from your personal account. This is a recipe for disaster.
• Excessive Dividends or Other Payments to Owners: When owners are actually working for a corporation or LLC, they can usually pay themselves fair compensation. But if they are giving themselves additional dividends and other non-compensation distributions, without any business accounting, this could expose owners to individual liability.
• Record Absence or Inaccuracy: If corporate or LLC records are missing or inaccurate, this can form a basis to pierce the corporate veil, especially if they hinder a creditor’s collection efforts against the company.
• Misrepresentation or Unfair Dealings: Deceptive practices such as dishonesty, false statements to corporate creditors, and asset concealment can make owners liable for corporate debts.

We counsel clients regularly on asset protection. We are sensitive to the unique concerns of our business owner clients, and take into consideration any issues that could implicate business owner liability. 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 asset protection, contact The Astill Law Office at 801-438-8698.

Philip Seymour Hoffman repeatedly rejected the advice of his attorney and accountant, both of whom advised him to create a trust. It is said he did so because he did not want his three children to be “trust funds kids.” For those of you who may be avoiding creating a trust because you do not want your children to be “trust fund babies,” we have written this article to dispel concerns over the misconceptions and stereotypes surrounding trusts.

The first thing worth addressing is taxes. Because of Hoffman’s aversion to proper estate planning, his $34 million estate faces a huge estate tax bill. A revocable living trust and other sophisticated planning could have provided more protection for Hoffman’s girlfriend and children and reduced his estate tax liability.

The second part of this that Hoffman just didn’t understand, is that by failing to control how his children receive distributions from his estate, he let them become trust fund babies…or worse. They don’t need to rely on a trust, they will get the cash outright! They don’t have to ask a Trustee if they can have money, they already have it.

Now you might be thinking you still do not need a trust, because you do not have a $34 million estate. This brings us to our second point. Trusts are not just for wealthy individuals. They are for anyone who wants their heirs to avoid the hassle, expense, aggravation, and stress of the probate process and for those who want to help their children avoid the mistakes of youth and immaturity. A revocable living trust can avoid probate court entirely, keeping your estate private and can control assets after you die.

In addition to avoidance of probate, and privacy, you can control when and how trust beneficiaries receive distributions. If one of your concerns is that you will create a trust for your children and they will blow through the money, a trust is actually the best estate planning instrument for you. You can set up a trust that only allows money to be spent for specific purposes. You can also create a living trust so that your children receive a modest allowance, but only if they perform certain approved tasks or achieve specific milestones. You are totally in control of your trust. You can rule from the grave for a long time!

It is not uncommon for our clients to set up distribution provisions which allow the Trustee to asset the beneficiary with education expenses, weddings, purchase of a home, and many other considerations. But the trustee can cease distributions if the beneficiary refuses to work, refuses to go to college, or acts irresponsibly, or is addicted to drugs or alcohol. You can’t always see what will happen to your children in the future. Using a trust allows you to provide your trustee with guidance and direction in how to distribute funds to your children. A common theme is to provide for principal distributions at particular ages so that a beneficiary gains experience over time.

If you have any questions about trusts, or any fears we can possibly quell, contact The Astill Law Office at 801-438-8698. We have been providing 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, give us a call.

If you are in the process of estate planning, you may be interested in the new rules about longevity insurance. In this article, we explain what longevity insurance is and how the new rules make it more available.

Longevity insurance or longevity annuity is a new buzz-word for a type of deferred-income annuity that will pay you income until you die. This kind of insurance was created to protect people from using up all of their savings as they age, and ensures retirees that they will have a guaranteed and regular stream of income.

The U.S. Department of the Treasury and the Internal Revenue Service recently issued new rules for longevity insurance. Until now, these annuities could not be widely used in 401(k) retirement plans and individual retirement accounts. This is because most of these plans require account holders to begin withdrawals at age 70 and a half. The new rules make it possible for people with 401(k) plans to purchase longevity insurance as a part of their investments by allowing 401(k) or IRA plan participants to use up to 25% of their account balance or up to $125,000 to purchase a qualifying longevity annuity

These new rules will make it possible for more individuals to purchase longevity annuities, supporting retirement security and saving by allowing retirees to purchase guaranteed income for life while still having some savings in more liquid investments.

The new rules also eliminate penalties for accidental overpayment, and gives longevity annuity owners the option to have premium payments returned if they were not yet received as annuity payments.

A good financial planner should be consulted before deciding that one of these annuities is the best thing 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 how longevity insurance may fit in with your estate plan, contact The Astill Law Office at 801-438-8698.

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.