Tag Archives: estate

Estate Planning

Conflicts with your Estate

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When establish your estate plan, it is important to confer with a knowledgeable lawyer. Attempting to draft a Will or trust without professional help can result in many costly errors. To learn more, please read our blog titled “DIY + Estate Planning = Trouble.” One type of mistake that can have significant consequences is when a conflict occurs. Below are some of the reasons why conflicts occur:

  • You die without a Will or your existing Will has not been updated recently
  • Your Will is ambiguous, contradictory or otherwise written improperly
  • Your Power of Attorney was not written correctly or the appointee is abusing the powers granted to him or her
  • Your family is unaware of your wishes and expectations
  • Your estate plan makes unequal distributions to your heirs without any explanation
  • The validity of your Will can be challenged because it was signed while you were incompetent or under duress
  • Conflicts exist in the trust terms between current beneficiaries and the remainder for contingent beneficiaries
  • Your DIY will is not properly executed (meaning its invalid!)

Any of the above conflicts in your estate planning documents can result in confusion and even costly litigation between your loved ones.

Don’t be caught unprepared or with an estate plan that fails to accomplish your goals. If you are concerned with what will happen to your children or your property, or you want to eliminate estate taxes, let us help. We can assist you in creating an effective estate plan and asset protection strategy. It was pointed out to me recently that a good estate plan costs less than .02% of the average estate. That’s a very small price to pay, to know that your heirs are protected and that your estate plan will survive an attack from someone who may be unhappy with your plan. Clearly stating your intentions and unambiguous documents clear the way for a smooth distribution after you are gone!

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

The Cost of Defending a Will Contest

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When you are appointed to administer a loved one’s estate, you may be required to defend an attack on the validity of the Will or Trust. If a beneficiary files an objection, you should contact us immediately for assistance. It is normal to be concerned with what it will cost to defend such an action, but having us on your side will actually help with reducing the overall expenses while also safeguarding the best interests of the estate and its beneficiaries. In fact, we have discovered that in many cases, getting the attorneys involved can lead to quicker negotiations and settlements outside of the courtroom. Understanding your legal rights and options is critical to acting under these circumstances. Often the administrator must remain a neutral party and the beneficiary’s have to conduct the litigation or contest.

Every case is unique, so there is no exact way to calculate how much it will cost to defend a will contest. Below are several of the factors that will affect the overall cost of defending a will contest:

  • The size and overall value of the estate involved
  • Whether the objection to the Will or Trust document is valid
  • Any factors that complicate resolving the objection
  • The amount of time your attorney spends negotiating and/or litigating the matter
  • The knowledge and expertise and attitudes of the contesting parties and their counsel
  • Additional expenses including the cost of retaining expert witnesses

Let us review the case and the objection being lodged against the Will or Trust. We can provide you with an estimate of what we anticipate it will cost to defend the action. As experienced estate planning and probate litigation attorneys, we can help you protect the assets of the estate, save the estate money by keeping costs under control, and ensuring that you do not incur any personal liability.

Astill Law Firm and its attorneys have the highest peer rating for competence and ethics from any lawyer rating system (Rated AV from Martindell-Hubbell, the oldest and largest attorney rating system). Additionally, Mr. Astill is ranked among the Utah Legal Elite in Estate Planning, and is among the Top 100 attorneys in Salt Lake area (Utah Business Magazine annual survey). Don’t put the estate or yourself in jeopardy by trying to save a few dollars. 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.

Estate Planning

What if an Heir Dies First?

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When it comes to administering a loved one’s estate, you are likely to be faced with a broad range of issues. As a result, you should confer with a seasoned estate planning attorney to ensure that you comply with the law and that you do not incur personal liability. One of the most significant problem areas for estate administrators occurs when it comes to distributing the assets of the estate. For example, what should happen if an heir dies while the estate is being administered?

All estate administration cases are unique and depend on the terms of the will or trust. In general, if a beneficiary is not related to the deceased by blood, then depending on when they died, his or her gift lapses or fails. This means that it becomes a part of the residue of the estate and will be distributed as provided in the estate planning documents.

If the beneficiary is related by blood to the deceased and the will does not set forth an alternate disposition, the descendants of the deceased beneficiary will probably inherit as follows:

  • The inheritance intended for the deceased heir may pass directly to his or her estate
  • If the heir died and left an estate plan, his or her inheritance will likely be distributed to the beneficiaries according to the terms of the estate plan
  • If the heir dies without an estate plan, his or her inheritance will be distributed as provided under the laws of intestate succession

In order for an inheritance to be distributed to the beneficiaries of the deceased heir’s estate, a separate probate case may need to be filed for the deceased heir, depending on the type of assets and the value of the decedent’s estate.

We know that these types of issues are complicated and we are here to 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.

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

Handling Unoccupied Property in an Estate

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If you are tasked with handling the estate of a deceased individual or administering a trust, it is important to properly handle any property that is sitting unoccupied. While a house that is in good condition is likely to sell quicker, it is important to check the insurance coverage on the property before any work is done or improvements are made to it. You should also inform the insurer of the work or renovations that are planned before anything is done. Most insurance policies that cover unoccupied properties are set up with strict requirements and any deviation from the terms of the policy can put the coverage in jeopardy.

When work is being done on a house, it presents numerous risks. Not only can construction cause damage to the structure (which is often excluded from coverage), but it also increases the likelihood of vandalism and theft while the work is in progress.

Insurance companies write their policies with terms, exclusions and restrictions that can lead to coverage being completely invalidated if work commences without prior notification to the insurer. This can include even minor repairs and redecorating, so it is essential to carefully review the policy (or have your attorney review it) and confer with the insurer to verify that your renovations remain covered by insurance.

Handling an estate can be difficult. It is important to avoid putting any assets into jeopardy, so having a conversation with the insurer of the property before any work commences on it is essential. Insurance policies can be very confusing, so seeking legal counsel should be something you consider in understanding and obtaining the right insurance. If you need assistance properly managing the estate of a deceased loved one or you have questions regarding how to appropriately administer a trust, we can 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.

Estate Planning

Could Your Assets go to an “Unintended Beneficiary?”

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When you create an estate plan, it is important to pick your beneficiaries carefully. However, it is also important to understand that if one of your beneficiaries dies shortly after you, the assets you leave to that person will pass to his or her beneficiaries. For example, if you leave your estate to your second wife and nothing to your kids, but she dies a few weeks after you die and her will names her children from a prior marriage as her sole beneficiaries, your children will inherit nothing from you. Obviously, this is not what you would have wanted to happen.

How can you prevent this from happening? You may want to include a survivorship clause in your will. This provision requires a 90-day waiting period before any assets can be distributed to your heirs. You should also think about the relationship with the named beneficiary. For instance, in the situation where your beneficiary is a second spouse and you both have children from previous marriages, you should consider including a contingency that if your spouse (the primary beneficiary) does not survive you for a set period of time, then the remainder of your estate should transfer to your children (or other named secondary beneficiaries).

You should also consider leaving your assets in Trust. By using a Trust you can provide support and use of assets to your spouse, but when your spouse dies, the assets go to your children. In second or blended family situations, a Trust is often the preferred tool.

When you are creating your estate plan, it is essential that you ask the “what if” questions. We can help you with trying to anticipate the different scenarios you should plan for in your estate plan. If you have an existing estate plan, we can help you review your beneficiary designations and ensure that your assets will be distributed exactly how you want.

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

Why Does an Estate Need to File an Income Tax Return?

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We have many clients ask us why an estate must file an income tax return. The quick answer requires you to understand a simple concept that may come as a surprise. When someone dies, the assets they own create an “estate” which may be made up of income producing property and non-income producing property. The IRS has created rules which state that the estate is now a new, separate taxable entity. It is possible for an estate to receive income following an individual’s death. Someone has to pay taxes on that income so the estate has to file an income tax return.

Common examples include income from a business, rental property, dividends, or even the interest that accrues on the deceased’s checking or bank accounts. All of these are considered to be income from the Internal Revenue Service (IRS). You should also understand that an estate’s income taxes are different from estate taxes, which are based upon the value of the estate.

If an estate receives income after the individual dies and before the estate property has been distributed, it must be reported to the IRS. The appropriate form for reporting an estate’s income is Fiduciary Income Tax Return or Form 1041. If a beneficiary inherits an asset directly from the deceased, the estate does not have to report income on that asset. The beneficiary reports income from the date of death. For example if you inherited General Motors stock because of joint ownership, any dividends paid from the date of death must be reported by you.

In addition, if the estate earns income on certain assets, but then makes distributions to beneficiaries, the estate reports the income, but the beneficiaries may have to report it on their individual income tax returns and pay tax on the income.

Is it possible to avoid the fiduciary income tax? With our help and careful planning, it may not be necessary for a fiduciary income tax return to be filed. If all of the estate assets are quickly transferred to your beneficiaries, the estate will likely not hold the property long enough to earn enough income to require filing of a return. For example, assets that are held in a trust are generally distributed quickly, which can help minimize tax consequences. In contrast, if the probate process is delayed by family disputes or legal issues, the distribution of the estate assets can be delayed for months, even longer! As a result, the estate ends up holding the assets for a period of time, the estate receives income, and that results in the need for the estate to file an income tax return.

We can help trustees or executors understand the tax reporting rules and avoid tax reporting under the right circumstances.

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

Are there Different Types of Wills?

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When you create an estate plan, your will or trust is the document that sets forth how you want your estate distributed to your family, friends and other loved ones. A will or trust can be very specific and detail itemized assets that should pass to specific beneficiaries, or you can even exclude a certain relative from inheriting anything from you. Your will can also appoint a guardian for your minor children if you should become incapacitated or die.

There are several different kinds of wills, including:

  • Joint wills. When two people, usually a married couple, make a will together it is called a “joint will.” In a joint will, when one person passes away, the estate passes on to the other person. The surviving party is not allowed to alter the terms of a joint will once the first individual has died. It is rare that we recommend use of a joint will.
  • Mutual wills. A mutual will is one that has identical and reciprocal provisions as another separate will, but neither party is bound by the terms of a mutual will unless there is an agreement to do so.
  • Holographic wills. A handwritten will is referred to as a “holographic will.” Typically, this type of will is not witnessed and it must comply with certain statutory requirements before it can be deemed valid. For example, a holographic will must be in the testator’s own handwriting, and must be signed and dated at the end of the document.
  • Pour-over wills. When you create a trust, a pour-over will is used to transfer any omitted assets into the trust upon your death. This is typically an effective way to either avoid the need for a probate or to limit the scope of any probate.
  • Living wills. A living will is not a Will to dispose of property. It is also called an “advance directive.” This document allows you to state your wishes regarding the medical care you want or do not want in the event you are faced with a serious accident or illness (in other words your end of life care). Having a living will allows you to provide physicians and other healthcare providers with instructions regarding your treatment if you are in a coma, have an illness that will cause death, or you are otherwise unable to express your wishes.

If you are interested in drafting a will or other estate planning documents, contact us for the advice and guidance you need. 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 does a Utah Probate Cost?

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If you are handling the estate of a loved one, you are probably wondering how much a probate action will cost. No two cases are identical, so there is no easy answer to this question, but below is some general guidance:

Attorney’s fees

You will need to ask your probate attorney if they charge an hourly rate, a set fee, or a combination of both types of fees. The attorneys at the Astill Law Firm try to fully inform you upfront what our fees will be so you know what your budget will be. You should never retain a lawyer without understanding how you will be billed.

Paying an attorney out of the estate

In Utah, a lawyer is not permitted to charge a percentage fee based on the assets of the estate. However, the personal representative is allowed to use estate funds to pay the lawyer’s fees.

Additional expenses

Some of the other costs related to a probate action include a court filing fee which must be paid to the court clerk at the time the probate is filed. If disputes arise within the probate case, you may be required to pay mediation fees in order to reach a settlement. There are some costs related to publishing notice of the probate to creditors in local newspapers. If the decedent owned real property or other valuable assets, an appraisal may be needed. Finally, if disputes cannot be settled and lawsuits are filed, there may be additional expenses. It is important to ask your lawyer to explain any anticipated costs so you know what to expect.

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

Personal Representatives in Utah

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A personal representative is the name used to refer to the individual who administers the estate of a deceased person. To be eligible to serve as a personal representative, you must be 21 years of age or older, of sound mind, and have no conflicts of interest with the estate.

In some cases, more than one qualified individual may want to serve as the personal representative of an estate. If this occurs, appointment occurs in this order:

  • the person appointed in the will being probated
  • the deceased’s surviving spouse who is an heir of the deceased
  • other devisees of the deceased
  • the surviving spouse of the deceased
  • other heirs of the deceased
  • if no other individual has been appointed within 45 days after the person dies, a creditor can be appointed

It is also possible for an estate to have more than one personal representative serving at the same time. They are referred to as “joint personal representatives” or “co-personal representatives.

Once a personal representative has been appointed, he or she has numerous duties and obligations under the law, including:

  • obtaining control over the estate’s assets
  • preparing an inventory and appraisal of the property owned by the decedent
  • providing financial reports to “interested persons” who request it
  • filing tax returns and paying an taxes due
  • giving notice to creditors
  • paying valid debts of the decedent, including expenses related to administering the estate
  • determining and making the distributions to be made to heirs and beneficiaries
  • Closing the probate action

If you have been appointed as a personal representative and you need help, contact us for 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.