Tag Archives: estate plan

Tips for Managing a Living Trust

January 29, 2015 Dennis Astill Leave a comment

One of the most important decisions you can make when creating a trust is who to appoint to manage the trust. The position of the trustee is so important that you should also name successor trustees to replace a trustee who is unable to serve or who passes away. With a living trust, you typically want to serve as the initial trustee. When naming your successor trustee, the individuals you trust the most likely lack trust administration knowledge and experience. Thus, it can seem like an intimidating job, but we are here to assist you and your successor trustees to lawfully administer the trust and diligently protect your wealth.

Some of the mistakes that are commonly made in managing a living trust include:

Failing to discuss the appointment with successor trustees. It is important to have a conversation with the individual you want to manage your affairs after your death. You should explain what the trust includes, provide him or her with a copy of it, and confirm that he or she is willing to take on the job. This is not something you want to surprise somebody with! Also, be sure to give the successor trustee’s our law firm’s contact information and let them know we are available to assist them with the duties of administering the trust. This makes transitions much smoother.
Failing to fund the trust. Once the trust is created, it is imperative that you transfer your assets into it. A trust only safeguards the property it holds as the legal owner. Assets that are not held by the trust may be required to go through probate and they could also result in negative tax consequences.
Failing to include a residual clause. A residual clause is a “catch-all” for any assets or property that was mistakenly omitted from the trust. This may include property that was acquired after the formation of the trust, but not properly transferred into the trust. If you have this type of provision, it can help avoid problems if a probate is required.
Failing to update estate plan. It is common for people to create an estate plan, file it away, and never look at it again. However, as your life changes, your will and trust will need to change. Some of the most common life changes that warrant updating your estate plan are marriage, death, birth or even changes in the tax laws. You should review your estate planning documents at least once a year to confirm they still accomplish your goals.

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

Unmarried Couples Need Estate Plans

January 27, 2015 Dennis Astill Leave a comment

Couples (same-sex or hetrosexual) who are living together, but who are not legally married, have unique estate planning needs. When you are married, the law provides you certain automatic protections. However, without that marriage certificate, you and your loved one are not protected unless you create an estate plan.

If you have an estate plan, you can direct how your assets and property should be transferred upon your death. This can be especially important if you or your loved one have been married before or you have children from a prior relationship. Because an unmarried couple does not have protections under the law, once an estate plan has been created, your loved one should be given a copy of it, be informed of where the original is located and how to access it when it is needed.

In addition to protecting the distribution of your assets, an estate plan can also assist unmarried couples with granting each other the power to make medical and health care decisions for each other. If your unmarried partner becomes incapacitated or otherwise unable to make his or her own medical decisions, there are no assurances that the physicians will include you in any medical decisions regarding your loved one because you are not legally a family member. There are many instances where antagonistic family members will purposely exclude you or your partner in these instances. Thus, it is important that you and your partner appoint each other as a medical care proxy or power of attorney. You and your partner may also want to appoint your loved one as a financial power of attorney to handle your money if you should become incapacitated.

Estate Planning

5 Tips for Getting Your Estate in Order

January 23, 2015 Dennis Astill Leave a comment

If you want to make things easier on your surviving family members, it is important to organize your estate. The time you spend taking care of things now will help your loved ones deal with the difficulty of losing you. It will also ensure that your wishes will be carried out. Below are a few tips on ways you can organize your estate:

Create an estate plan. Having a will, trust, and other estate planning documents allows you to ensure that your loved ones are protected and your estate doesn’t go to pay taxes and is not subject to unnecessary expense. Your estate plan should include a living will that sets forth your medical wishes if you are unable to make those decisions for yourself. It should also include a power of attorney that allows a trusted individual to make personal, legal or financial decisions on your behalf if you become incapacitated.
Designate beneficiaries. If you have bank accounts or other types of accounts that allow you to name a “pay on death” beneficiary, it is imperative that you designate beneficiaries for each account.
Draft a letter of instructions. It is extremely helpful for your loved ones to have instructions regarding your funeral wishes, people you want notified of your death, and where your important financial records can be located. It is important to list any passwords or other information necessary to access your financial records. You may want to consider preplanning your funeral so the process is less stressful for your family.
Life insurance. It is important to obtain or update your life insurance, which provides your loved ones with an immediate source of funds. Be very careful about the beneficiary designations so that the life insurance is included in your estate plan.
Review pensions, 401(k)s or IRAs. You want to make sure you have taken care of beneficiary arrangements so your survivors receive the benefits they are entitled to. These beneficiary designations must be part of your estate plan and your estate planning attorney should guide you in these decisions.

There are many other items that must be taken care of, but the above tips will give you a starting place. To learn more about estate planning or asset protection tools, contact us to schedule your appointment.

Estate Planning

Lost a Loved One? What You Need to Do Now

January 15, 2015 Dennis Astill Leave a comment

If you have lost a family member or other loved one, you may feel overwhelmed and confused about what you should do to handle their affairs. While no two situations are the same, below is a simple checklist for several tasks that you will likely need to handle:

Make funeral arrangements. You should consider whether your loved one would want to be cremated or buried. You will need to notify any specific religious leaders, a funeral home or mortuary for your loved one’s final services.
Notifications. You will be emotional during this difficult time, so it is helpful to make a contact list to ensure all of your loved one’s friends and family are notified of the death. Having a list also makes it easier for others to help you make the calls if it is too difficult for you to do it.
Death certificate. It is important to obtain multiple certified copies of your loved one’s death certificate. We typically recommend a minimum of 5, but in some cases you might consider getting 10 copies. You will need to provide a death certificate to insurance companies, financial institutions and other similar entities.
Locate estate plan. You will want to locate the estate planning documents to determine how to handle the administration of your loved one’s estate.
Bank accounts. If the deceased has bank accounts that are not held in trust, or jointly with another person (or transferred otherwise), you must determine how to transfer the funds. This includes locating safe deposit boxes and taking an inventory of its contents.
Retirement accounts. You must locate and determine how the deceased’s retirement accounts (401k, IRA, pension, etc.) will be transferred and who the beneficiaries are.
Life insurance. You should contact your loved one’s insurance company to discover who is named as the beneficiary of any life insurance policies.
Creditors. All creditors of the deceased should be notified of your loved one’s death. You should continue to pay all utility bills of the deceased until the services are discontinued.
Automobiles. Unless handled by an estate plan, you must determine how the vehicles, boats, ATVs, motorcycles and other similar assets are titled and insured, as well as how they will be transferred.

The above list is not all-inclusive and there are many other matters that must be handled. If you need assistance administering the estate of a loved one, we can help. Please review our earlier blogs for a comprehensive list of things to do when someone dies.

Estate Planning

Should I Transfer My Home While I’m Alive?

January 14, 2015 Dennis Astill Leave a comment

For many Utah residents (and for most people in general), their most significant asset is their home. In an effort to avoid the probate process, or save the money required to create an estate plan, many people transfer title to their house while they are still alive. In most instances, a parent transfers title to their home to an adult child, believing this is an inexpensive and simple answer. Sadly, this can lead to serious complications for you and your loved ones.

Two important factors to consider are that by transferring title to your home, (i) you lose your homestead exemption for protection from creditors, and you are no longer entitled to a reduced property tax because it is not an owner occupied primary residence. This can cost you thousands of dollars.

Another concern is that you lose control over the rights to your home. If you should have a dispute with your child, you could potentially lose the ability to live in your own house! Your child (or children) owns the house, and without providing more, he or she does not have a legal obligation to let you continue living there (unless otherwise provided by contract). Additionally, you have no control over what can be done to your property, such as renovations, but also with your home being used as collateral for loans. What happens more often is a child has creditor problems of their own and their judgment creditors then have liens on your home!

Finally, you should also consider whether transferring title to a child will cause problems at your death amongf your other children. The child that owns your home has no legal obligation to share it with his or her siblings. What happens at death when that child faces the other children and simply states that he doesn’t intend to share?

To remedy this, some people put the names of all of their children on a deed to their home. However, if you put all of your children’s names on the title to your house, it can make the documentation very complicated and it leaves the home more vulnerable to attack by creditors and even more complicated. For example, what happens if one of your children dies before you do? Who then owns their share of the house? And even if your children cooperate with you, will your inlaws or grandchildren? What happens if you want to sell the home and use the proceeds to buy a smaller home or for your support in old age? One holdout can jam up the works and you can’t sell your house! You can see that this creates serious complications and is never a recommended plan.

More often than not, the arrangement that sounded so simple becomes seriously complicated and costly and results in litigation in your estate. It is far more costly than preparing a sound estate plan. And the worst thing is, it doesn’t carry out your wishes.

Creating an estate plan is a safer, more efficient and less costly means for transferring all of your important assets. If you want to avoid the probate process, you can create a revocable living trust. This type of trust provides you with flexibility to decide when and how your estate is distributed. A trust can actually save your family a significant amount of money, time and disputes in the long run and you can be assured that your intent is carried out under all circumstances.

Estate Planning

Checklist: What to do when Someone Dies

January 9, 2015 Dennis Astill Leave a comment

Checklist: What To Do When Someone Dies

1. If a doctor is not present, notify a doctor or coroner in order to obtain a death certificate.
2. If the death occurs at home, you may need to contact a local police officer or coroner.
3. If the Decedent wished, a donation of body parts and tissues should be considered.
4. Notify family and friends. You may want to consider having family members contact others to save yourself some time on the phone during a stressful period.
5. Look for instructions which the Decedent may have left regarding preferences for funeral and burial arrangements.
6. Determine if the Decedent belonged to a burial or memorial society that may make special arrangements for the funeral, such as military honor guards.
7. Contact a funeral home concerning burial or cremation arrangements.
8. Complete funeral and burial arrangements.
9. Contact the Social Security Administration and any other government agencies or benefit program that may be making payments to the Decedent. (Note that the payment for the month of death will not be made by the Social Security Administration and others.)
10. Review the Decedent’s financial affairs and look for any estate planning documents, such as Wills and Trusts, along with any other relevant documents, including:
• Funeral and Burial Plans;
• Safe Deposit Agreements and keys;
• Nuptial Agreements;
• Life Insurance Policies;
• Existence of Trust;
• Pension-retirement benefits;
• Old tax returns;
• Prior Gift Tax returns;
• Marriage, birth and death certificates;
• Divorce documentation;
• Computer records regarding books of a business or personal assets;
• Bank statements, checkbooks, similar documents;
• Notes receivable;
• Titles to motor vehicles;
• Leases;
• Securities and list of securities;
• Any documentation of business ownership or business interest;
• Health Insurance, make claims for the final illness; and
• Unpaid bills.
11. If there is a Will or Trust, take it to a competent estate planning attorney to determine if probate is necessary or how to administer the estate.
12. Administering the Will – If the Will is properly drawn, it will name a Personal Representative (also known as Executor or Executrix). The Personal Representative, who can be an individual, a group of individuals or one or more institutions, or a combination of the aforementioned, will be responsible for the administration of the probate estate of the Decedent. A trust may eliminate this requirement, but depends on the diligence of the decedent in tending to their affairs.
13. If there is no Will or Trust and there are assets which need to be probated, with the help of a competent estate planning and probate attorney, the Court will appoint an administrator and the assets of the Decedent will be distributed according to state law. This situation is referred to as intestacy, where the state prepared a Will for you. All states have a set of laws relating to intestate succession (transfer of property after dying without a Will), and the states decide who gets which assets if someone dies without a Will.
14. If you are the Personal Representative or Successor Trustee of a Trust, prepare a detailed list and inventory of the assets owned by the Decedent or the Trust, so they can be administered and distributed according to the wishes of the Decedent.
15. Open a bank account for the estate of the Decedent or for the Trust. This should be done early on and all receipts and disbursements should be recorded in that bank account, in order to account properly for the assets of the Decedent and the expenses of administration.
16. Probate is a process similar to that of accounting. The Personal Representative is responsible for collecting the assets and reporting to the Court as to the amount of assets in the Estate of the Decedent. The Personal Representative then assembles the assets and, after paying debts, expenses and taxes, distributes the assets according to the wishes of the Decedent. If the Decedent left no Will, the process of administration is essentially the same, except that state law determines to whom the assets are distributed. If everything is done correctly, eventually, after the Personal Representative has accounted for and distributed the assets, the Personal Representative is discharged. If a Trust is used, the same concepts apply to administration of the trust.
17. Make an inventory of household goods, personal belongings and the like, in order that they can be accounted for and properly distributed.
18. Look for insurance policies or annuities which may continue for other family members and other assets. Contact the Insurer with respect to any current policies or annuities.
19. Try to assemble the deeds of the Decedent to see what real estate, if any, is owned by the Decedent. If real estate is owned in more than one state, special proceedings, called “ancillary administrations,” may be needed in each state.
20. Determine if the Decedent owned any securities, stocks, bonds, mutual funds, etc.
21. Retirement Plans, IRA accounts and similar retirement benefits involve important choices which need to be made by beneficiaries, particularly in regard to IRA accounts under IRS regulations. If there are annuities, pension and profit sharing plans and interest of that type, they may provide for joint payment to a surviving spouse or others.
22. If the Decedent controlled or was a principal person in a business, it may be necessary to check to see if there are Buy-Sell Agreements under which the interest of the Decedent would be purchased by the business entity or other business owners.
23. If, after the appointment of a Personal Representative, a bank account or safe deposit box is found, then the assets in the bank account or safe deposit box need to be distributed according to the wishes of the Decedent.
24. If the Decedent was indebted to anyone, then the creditor needs to be paid. If the creditors are not paid and they make a claim against the estate after all of the assets are distributed, the Personal Representative may be in trouble and held personally liable for the debt. If there are insufficient assets to pay creditors, you need the assistance of an attorney to determine how to proceed.
25. As part of the probate process, all family members within a certain degree of kinship must be contacted, whether or not they receive assets from the Estate of the Decedent.
26. In handling the affairs of a Decedent, do not be quick to make distributions to family members or friends of the Decedent. Important choices need to be made concerning such distributions and, of course, they need to be in compliance with the Will, Trust or other instructions left by the Decedent, not to mention any applicable tax laws.
27. The income taxes of the Decedent for the year of death need to be filed, and any tax due must be paid. If there is a surviving spouse, the surviving spouse can file a joint return with the Decedent for the year of death.
28. If there is a Trust, particularly a Revocable Living Trust, it will become irrevocable at the time of death, if not before. A separate tax return, Form 1041, Fiduciary Income Tax Return, needs to be filed for the Trust or the Estate of the Decedent if income is received by the Estate or a Trust.
29. If there are minor children and the Will provides for a guardian, then the guardian needs to be informed and the children need to be placed in the care of the guardian. If there are minor children and no guardian is appointed, or if there is no Will, then the Court must appoint a guardian.
30. If there is real estate or other property that is insured, the Personal Representative should make sure that the insurance policies on the properties of the Decedent are maintained.
31. Be deliberate and do not be hasty with decisions or distributions. The death of someone, particularly a family member or friend, is stressful and often if there are children of the Decedent around during the course of the final illness, there may be disputes regarding the treatment or other problems related to declining physical or mental abilities of the parent. Stated differently, it is a time of frazzled nerves and irritable people, so be very careful not to create schisms which can last for a very long time.
33. Watch out for people who prey upon families of Decedents. There are people who look for death notices and make unfounded claims against the Decedent. Some may also attempt to burglarize the home during the funeral service. Be cautious about such matters; have someone stay at the home during the funeral service and do not easily accept the claims of unknown individuals that lack documentation. There are also unscrupulous “experts” who will tell you that they can help you administer the estate. Talk to a competent estate planning attorney before making any decisions.
34. If there is a surviving spouse, make sure veterans benefits or other “joint and survivor” benefits are collected by the surviving spouse.
35. If you are a surviving spouse, don’t make any major changes in your life, such as place of residence, re-marriage or anything else for at least a year unless it’s absolutely necessary. See the assistance of a competent estate planning attorney to review the Decedent’s affairs and advise you on your own estate plan going forward.

36. Remember that any power of attorney you held for the Decedent is now revoked.

Estate Planning

Can your Loved Ones Inherit your Frequent Flyer Miles?

December 31, 2014 Dennis Astill Leave a comment

If you are somebody who travels a lot and you have accumulated a large number of frequent flyer miles or reward points, you know they are a valuable asset. Many people don’t think about including them in their estate planning efforts, which is a big mistake. With some aforethought and planning, you may be able to transfer your valuable loyalty program points to your loved ones.

Every rewards program is different, so each has its own rules that apply to transferring points or miles. The best approach for transferring the program benefits is to start giving them away while you are alive. If you are no longer traveling or you have more points accumulated than you will ever use, start gifting them to family and friends now. Many companies allow you to purchase airline tickets with your miles to be used by anyone. Additionally, you can use your points to buy gift cards, hotel stays or other benefits.

If you are still using your points or miles and you are not ready to gift them to others, you should create a list of your accounts, user names and passwords. This will allow your loved ones to access your accounts if you should die. Many companies that do not allow you to transfer points allow somebody who logs into your account to redeem points or miles.

You should also check into adding family members to your account. Some credit card companies that provide points or miles for every dollar you spend may allow you to add your spouse or other secondary user to your account. If you don’t want this other person to be able to make charges on your credit card, stick it in a safe deposit box with your estate planning documents. Once you pass, the secondary user may have access to your accumulated benefits.

Lastly, you should consider setting forth who you want to leave your program benefits to in your estate plan. Many companies will honor the transfer of points or miles if they are specifically transferred in a will or other estate planning document.

Estate Planning

Does your College Student need an Estate Plan?

December 29, 2014 Dennis Astill Leave a comment

Under the law, your child is considered a legal adult when he or she reaches the age of 18 years. Most parents do not want to think about their young adult needing an estate plan, but in some situations, it is important to do so. If a young person is moving far away from you for college or a job opportunity, you should consider establishing a health care proxy, power of attorney or even a will or trust for him or her.

Why would your 18 year old need these types of legal documents? As soon as he or she becomes a legal adult, HIPPA prohibits healthcare professionals from sharing private medical information to anyone without consent. If your child is seriously injured or otherwise incapacitated and cannot communicate his or her consent for you to be involved in medical decisions, it can get complicated quickly. To prevent any confusion, you should have a loved one appointed as a healthcare agent, especially for a young adult living away from home.

Another important topic to discuss with your young adult is whether he or she desires to be kept alive by heroic measures if he or she would not have a meaningful quality of life. While this can be extremely difficult to discuss, it is essential for family members to talk about in case the worst case scenario occurs. You should also talk about organ donation and whether your young adult prefers to be buried or cremated.

Although most young adults have not accumulated significant wealth, ownership of any gifted funds or assets vest in your child at the age of 18. If your child should die before you, his or her assets may need to go through the probate process. Without an estate plan, your child’s estate will pass to the heirs-at-law, which usually will be you, as the parents. However, if you have been working to reduce your estate for tax purposes or asset protection purposes, the inheritance of such assets could disrupt your strategy. It may worth considering establishing a simple estate plan for your young adult directing assets to be left to siblings or other family members.

To learn more, please contact us for an appointment. 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

Should your Estate Plan Include a Prenuptial Agreement?

December 26, 2014 Dennis Astill Leave a comment

Most people incorrectly believe that prenuptial or ante-nuptial, or premarital agreements are only advantageous for the wealthy or famous. However, having a prenuptial contract can be an important part of your estate planning process, especially if you have been married more than once and you have children from a prior marriage. In fact, it is possible for a new spouse to invalidate your estate plan if you don’t take action to protect it.

By way of example: You and your spouse have children from previous marriages, you and your spouse are living in the home your children were raised in, and you want your children to inherit the house. Without taking the appropriate estate planning steps, it is possible your new spouse could inherit the home and pass it on to his or her own children upon his or her death.

You can prevent this from happening by either having a prenuptial agreement or by setting forth your wishes in a comprehensive and updated estate plan. It is important to have your intentions set forth in writing. If you sign a prenuptial agreement, you must ensure that the contract is entered without undue influence and the parties made full financial disclosures. In an estate plan, you can dictate how your assets should be distributed under a will or trust. Estate planning provides you with flexibility in determining who should inherit and when the distribution should take place (such as when your children reach a certain age). A prenuptial agreement also has the benefit of protecting your assets from being decimated by a new spouse in the event of divorce.

If you are interested in learning more about protecting your loved ones with an estate plan, please contact us to schedule an appointment. 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

When Should I Update my Estate Plan?

December 24, 2014 Dennis Astill Leave a comment

If you have created an estate plan, you have taken a very important step in protecting your family. However, it is important to understand that you cannot simply file your estate plan away and forget it. This can result in unintended and costly consequences. Not only does your life change, but so do the tax laws. You put a lot of time and effort into creating your estate plan, so it is essential to review it regularly and ensure that it still reflects your wishes and that you will obtain the maximum benefit from it.

When your estate plan was drafted, your attorney considered a variety of factors such as estate tax, gift tax, income tax and other rules governing the distribution of your estate. The tax laws are always changing and your finances have likely changed too. Having your estate plan reviewed can verify that your financial goals are still being accomplished in the most effective way.

So, when should you have your estate plan reviewed? In most situations, having an estate planning attorney look over your estate plan every few years is sufficient. However, if you have experienced a major life event or had a substantial change in your finances, you should update your plan. This includes events such as marriage, divorce, birth of a child, adoption, death of a spouse or other similar events that could impact the distribution of your estate.

Is it expensive to have my estate plan updated? Usually, a simple review of your estate plan is not expensive. However, the longer you wait in between reviews the more updates that are likely to be needed. In order to keep the cost low, many attorneys suggest having your estate plan reviewed each year. In all events you should review it annually to make sure that the guardians, trustees and personal representatives are kept updated.

Whether you need to draft the initial documents to create an estate plan or you have an existing plan that needs to be updated, let us help. 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.

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