The laws of estate planning are confusing, and they are different based on what state you are in. Because of this, there are common, reoccurring misconceptions, especially when it comes to wills and probate.

Probate
Many people have unreasonable fears of the probate process. Utah has adopted the Uniform Probate Code, which provides for a very user-friendly approach to probate and administration of estates. Now, probate is nothing more than an administrative process to pass title to your assets to those persons entitled to them. It is not excessively costly, and it is protective of the heirs and beneficiaries of a person’s estate. You can avoid probate altogether through the use of revocable trusts. If you have a revocable trust, the probate process will simply serve as a backup plan if any of the assets do not get transferred into the trust.

Wills and Probate
Some people believe that if you have executed a will, the probate process is not necessary or applicable. That is not the case. The probate process is necessary to give effect to a will. By using a will, you can choose your executor (also known as a personal representative), transfer your personal effects, appoint guardians of minor children, and name the persons who are to receive all of your other property, including your house, bank accounts and personal effects. In addition, if used in combination with a trust, a will can be used to transfer assets to 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.

One of the reasons people create living trusts is to reduce the likelihood of disputes among family members. Most estates do get settled without disputes, and those with disputes are often easily resolved because the trust, will, and beneficiary designations are clear. Unfortunately, sometimes family members are determined to be fractious, and in that case no amount of careful planning can completely remove the risk of a costly dispute. There are steps that can be taken to help resolve trust disputes, as exhibited through the case example below.

Case Example
One example of an estate plan that was not guarded from potential disputes was that of Lorraine. She had a revocable living trust, prepared by a lawyer in 2003. It contained straightforward provisions: most of Lorraine’s property was to be divided in half, with one half to go to her son Greg and the other half to her son Tony’s two children. Tony was named as successor trustee. Like many revocable trusts, the document included a “Schedule A” listing the assets that Lorraine was transferring to the trust’s name.

The first problems arose when Lorraine started writing on the trust document directly. In 2004, 2006 and twice in 2008 she wrote on Schedule A, indicating what should happen to some items of her property. Also in 2008, she had Tony’s wife write out an amendment to the trust. Lorraine died shortly thereafter, without having her trust looked at or formally updated by her lawyer.

After her death, one of her sons, Greg, removed some items from her house but did not account for them. Then he filed a civil lawsuit against his niece and nephew, asking the court to divide a piece of Lorraine’s property amongst the three of them. He also filed a complaint against his brother, Tony, alleging that Tony had breached his duties as trustee by not distributing the property in kind, had made allegations of theft against him, and had favored his own children over Greg in his handling of the trust.

At the very end of the trial, Greg and his niece and nephew struck a deal on the property. The judge found that Tony had not breached his fiduciary duty, but that Greg had initiated most of the problems by his own actions. She also ruled that Greg had to pay a total of $176,466 to the other parties for attorneys’ fees, and another $4,979.19 in costs.

Greg appealed, making several more allegations against Tony, including that Tony had mismanaged the trust. The Court of Appeals affirmed the original decision and awarded Tony and his children their requested fees and costs for having to respond to the appeal itself. In re Bower Revocable Trust, May 14, 2013.

The dispute was both expensive and time-consuming. In addition to approximately $200,000 in fees and costs, Greg was ordered to pay for Tony’s and his children’s lawyers in addition to his own legal fees for his own side of the litigation. The Court of Appeals decision was rendered more than four years after Lorraine’s death (and that was speedier than most similar cases in our experience).

Tips to Avoid Costly Delays
To avoid future family disputes and expensive, time consuming litigation, here are a few tips to consider:
• Don’t modify your estate planning documents by writing on them directly.
• Include some language directing your children how to resolve disputes.
• Consider complete disclosure and transparency, and do not hesitate to affirmatively seek court direction.

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 beginning the estate planning process, there are surely several questions swirling around in your head. When it comes to deciding on the terms of your will and then drafting it, there are many considerations. To address these issues about wills, we have organized some frequently asked questions below.

1. WILL A WILL GOVERN THE TRANSFER OF ALL MY ASSETS?
A will provides for the distribution of many types of property you own upon your death from small personal items to homes or land. However, some types of property are not distributed according to a will, such as insurance policies. A will can contain provisions with the direction that an individual receive a specific piece of property or it can direct that everything owed at death go to the same individuals. The important thing to remember is that, while a will can take care of many dispositions, there are some items which should be separately reviewed by an attorney to ensure they will be disposed of according to your wishes.

2. WHAT TYPES OF PROPERTY WILL NOT BE GOVERNED BY THE TERMS OF MY WILL?
A will does not dispose of any property you hold with another individual with survivorship rights, such as property owned as joint tenants with right of survivorship. Upon death, jointly held property automatically transfers to the other title holder. Similarly, property held in trust will not be affected by the terms of your will, as it is governed by the terms or the trust agreement. Also, annuities, life insurance, and retirement accounts provide for the payment of benefits outside of a will to a named beneficiary.

3. WHO SHOULD I APPOINT AS MY AGENT TO MAKE FINANCIAL AND MEDICAL DECISIONS ON MY BEHALF?
Choosing an agent who will make potentially make medical and financial decisions on your behalf is possibly one of the most important planning decisions that you will make. Your agent should be someone you trust and someone in whom you have confidence to act in your best interest, even in the face of stressful situations or outside pressure from other family members and friends. You can separate your financial decisions from your medical decisions. You can appoint one person to hold a power of attorney for financial decisions, and another person for medical decisions. Your agent does not need to be a family member. While not necessary, it may also be wise to appoint an individual who lives near you, in the event they need to act on your behalf when time is critical.

An experienced estate planning attorney can help you decide how to structure your estate plan so that all items will pass accordingly to your wished. 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.

Wills and trust are two of the most important and fundamental planning documents, yet an astonishing number of people still do not have one or the other. This is understandable, as it can be extremely stressful to confront one’s own mortality, and estate planning takes time and money. That said, there is no substitute for a solid estate plan created with an attorney’s guidance.

Do I Need An Attorney to Make My Will?
A will must be formally executed to be effective. Trying to draft or amend a will on your own is very dangerous. Sometimes the legal effect of your actions is much different than what you intend. Make sure you use a competent estate planning and tax attorney to advise you on your will and estate plan.

Why Can’t I Just Write-Up My Own Will?
There are so many things that can go wrong when drafting a will, from the wording of the document, to the required formalities for how it must be signed and witnessed before it can be valid. That is why it is best to have someone with experience and a working knowledge of the law help you.

In one unfortunate case, a father wanted to disinherit his son. He bought do-it-yourself will software and followed the prompts, listing his assets and making gifts to his other children. Unfortunately he omitted a small number of shares of stocks that he had bought many years earlier. Those shares had grown in value because of mergers and stock splits and were worth several million dollars. They made up the largest part of the man’s estate by the time he died, but because they were not provided for in the will, the stocks passed according to the law of intestacy. The son the father wanted to disinherit received almost $400,000 and blew through it in less than a year. If the father had an attorney draft the will, the attorney could have included the stock or included a residuary clause that would have disposed of any property the father forgot to mention according to his intentions.

To avoid having your estate go through intestacy or being distributed against your intent, get a competent Estate Planning Attorney to help you draft a proper will. Compared to the cost of lawsuits in the estate, inheritances going to an unintended beneficiary, or having an invalid will, the services of a good attorney are inexpensive.

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.

There are several reasons to consider meeting with an attorney to begin drafting a will. Without a will, your assets, children, and personal possessions may not be properly protected.

What is a Will?
A will is a document signed by a person that directs how his or her property should be disposed of and who will receive it. It usually also directs who will administer the estate, and it can also be used to appoint a guardian of a minor child.

How can a will protect my children?
A will allows you to appoint a guardian and successor guardians for your minor children. There is no other way to assure that someone you trust will have the control over custody of your minor children after you die. For people with minor children, even if you have a very small estate, this is a very compelling reason to create a will.

With a will, you can also control how and when your minor children or young adult children receive their inheritance. Without a will, children who inherit your estate will receive their inheritance immediately if they are 18 years of age or older.

How can a will protect my spouse?
It is very important to sign a new will after a marriage. If this is not done, then the spouse will receive a share of your estate as if you died without a will. This can create some unintended results.

How can a will protect my personal effects?
If you die without a will, your personal effects are distributed to your heirs based on the rules of intestacy. With a will you can create the ability to prepare a special kind of list that describes who should receive your tangible items of property. With a will you can make sure that items with special meaning are distributed to the people you believe will most appreciate them.

Conclusion
If you die without a will, the state intestate statutes will control how your property is distributed. A will is an essential component of your estate plan, allowing you to appoint a guardian for minor children, appoint your Personal Representative, create trusts for you minor or young adult children, manage the transfer of your personal effects, and distribute 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.

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.