Tag Archives: estate

Who is Liable for the Debts of a Decedent?

If you have recently lost a loved one, you may be wondering who is responsible for paying his or her debts. The good news is that nobody is personally liable for another person’s debts (unless you were a co-borrower or co-debtor with the decedent). The law provides that the creditors of a deceased person must be paid out of his or her estate before any distributions can be made to the heirs. This may include selling assets of the decedent in order to pay outstanding debts. Thus, if you take property from the decedent’s estate before all of the debts are paid, you may be liable for paying creditor claims. However, there are some exemptions that allow assets to be distributed to heirs of the Estate even though creditors don’t get paid.

Utah law sets forth the order of priorities for a decedent’s debts as follows:

  1. Reasonable funeral expenses up to $6,000.
  2. Administrative costs and fees, which includes paying the personal representative’s fees and the fees for the estate attorney.
  3. Debts and taxes
  4. Reasonable and necessary medical expenses from last 60 days of the decedent’s last illness.
  5. Family allowance for necessities.
  6. Child support arrearages.
  7. Debts acquired by continuing decedent’s business after his or her death.
  8. All other claims.

After satisfying all prior classes, a class of creditors shall be paid pro rata based upon the claim amounts if there are insufficient estate assets remaining to pay the class in full. Once the debts have been paid, the estate can make distributions to the beneficiaries.

If you have been appointed to administer a loved one’s estate, we can help. We will assist you in not only fulfilling your legal obligations, including paying the debts of the decedent, but we will also help you avoid any legal issues or personal 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 creating a Trust, Will, or estate planning in general, contact The Astill Law Office at 801-438-8698.


5 Tips for Getting Your Estate in Order

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

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.

What is the Difference Between a Guardian and a Conservator?

The terms “guardian” and “conservator” are often used interchangeably because they are related concepts, but they have two different and distinct meanings in Utah. It is important to understand these differences when making plans for the care of your loved ones or for yourself.


The appointment of a guardian allows that person to make decisions about another person’s or the “ward’s” well-being. As a result, the guardian should be somebody you trust to act in the ward’s best mental and physical interests. A guardian is often appointed by parents who wish to provide for their children’s care in the event they both should die. A guardian can also be appointed to assist a ward who cannot take care of themselves due to age or disability. The guardian is responsible for taking care of the ward’s daily living needs. A guardianship can be limited if the ward is able to take care of themselves partially but not completely.


A conservator is appointed to handle a ward’s finances and assets. When you appoint a conservator, you want to select somebody who will act prudently in handling the ward’s estate. A conservator can be appointed to manage the estate of a minor who is too young to handle it, or because the ward is not mentally capable to do so. Unfortunately, you may not be able to select the person who acts for you if you are already incapacitated. Further, you don’t have the right to select a Conservator for a minor child.

A professional institution or an individual can be appointed by a court to serve as a guardian or conservator. In many cases, the person or institution can serve in both roles and take care of the ward’s daily living needs and their financial needs. Depending on the circumstances, this may or may not be advisable.

While guardians and conservators are important tools for protecting persons who are underage or have disabilities, when it comes to protecting assets, the use of a trust is far superior to use of a conservatorship. You retain control because you choose who becomes your trustee and how assets are managed.

If you have questions regarding appointing a guardian or conservator for a loved one or for yourself, contact us to schedule an initial consultation.

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.

Is Probate Ever a Good Thing?

When it comes to probate, you typically are advised to avoid it if at all possible. This is true as a general rule because the probate process can be time-consuming, expensive and it opens your private matters up to the public. However, there are certain situations when it may be beneficial to allow some of your estate to go through probate.

If the estate has a large number of creditors, a probate may be helpful. When a probate case is filed, creditors are then given notice of the filing for probate and a deadline for asserting their claims against the estate. Thus, if the deceased owed large sums of money at the time of his or her death, it can be beneficial to have a time limit for creditors to file their claims. If a creditor fails to properly assert a claim, it can be barred from asserting its rights to collect the debt at a later date.

In comparison, if you have placed your assets into a trust to avoid the probate procedure, creditors are not limited by the probate law and the deadlines provided therein. However, in Utah there is a method provided for Trusts to do a similar procedure to limit claims against the decedent’s trust. With proper planning, it is possible to take advantage of a trust while also using the probate process for protection. This strategy requires advance planning and the assistance of an experienced estate planning attorney. Once the creditor’s notices are finished, your estate should be secure. Your family has the comfort of knowing that the remaining property held is protected from future claims of your creditors.

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.

Upon the Death of a Loved One


Immediate Things:

  1. Secure the house.
  2. Take care of pets.
  3. Forward mail.
  4. Shut off or curtail use of utilities (or not, depending on circumstances, i.e., if you have to keep the heat on, water the lawn, etc.)
  5. Clean out the refrigerator.
  6. Stop the newspaper.
  7. Check with a friendly neighbor to keep you apprised if there is any activity at the house.
  8. Tell the Landlord if the residence is a rental.

Longer Term:

Previously we published a lenthy checklist. Look at our website or Facebook page for a copy of this checklist. The Checklist is not exhaustive (though we think it is pretty thorough), and not every item will be applicable in every case. Sometimes you may need to make adjustments — such as when your family member had a living trust, and no probate proceeding will be necessary, or if you have been responsible for managing their bill-paying for several years before the death. Still, we think it will help you organize the papers, questions and information you need to properly take care of the legal and financial issues that will arise.

A couple more caveats:

  • Please remember that we live and practice in Utah. This checklist may not be accurate, or as useful, if you live somewhere else, or your family member died somewhere else.
  • Several items on our checklist encourage you to collect information of various kinds. In most cases, that’s so that your visit to our offices will be more productive. Sometimes it is to help you answer questions from heirs, creditors or others as you get more deeply into administering your loved one’s estate. If you do collect forms, mailings, etc., keep them in a central place for several years after you have concluded the estate administration.
  • If you are the successor Trustee or Personal Representative, where we indicate that you should keep track of your time and expenditures, we really mean that you should — and from the very beginning of your work. Even if you have no intention of charging a fee, we strongly recommend that you keep track.
  • If you are not the person who will be in charge of the decedent’s estate, that does not prevent you from printing out the checklist, monitoring progress by the person who is in charge, and figuring out how you can be helpful.

Common Questions:

1. How quickly do you need to get to the lawyer’s office to review what needs to be done? Usually it is not the most pressing issue, but you should expect to make an appointment within about two to four weeks. If you are the surviving spouse, it probably can wait longer. If you are in town for a short time you might well want to meet right away, at least briefly. But here’s another reality: when you call, you may be looking at a two-week wait before an appointment. That gives us time to schedule you, and to get a questionnaire out to you to help with the collection of information. Usually nothing can be done for a week or two anyway. So don’t wait two weeks to call for an appointment, and then expect it to be immediate. If there are pressing needs, we make time at our office as necessary.

2. Do you need to see the lawyer who prepared the will or trust? Not necessarily. It may be more comfortable and efficient, and the lawyer might have even kept the original documents (we sometimes do that for clients). For example, we maintain detailed electronic files of notes and documents for our clients and most have become good friends by the time they pass away. This helps because we can be up to speed quickly and provide a lot of assistance. Not every firm does this. But there is no compelling need to return to the decedent’s lawyer. It probably does make sense (in most cases) to meet with a lawyer in the community where your family member lived and died.

3. How long will the process take, and how much will the lawyer charge? It’s really impossible to generalize in any useful way. You might well be surprised at how little it costs. On the other hand, we regularly see family members who think there will be no need for a probate or any costly legal proceedings, only to find out that something was wrong in the estate setup, or something got changed or overlooked.

4. What are some of the more important points in our checklist? Here are a few we’d like to highlight:

  • Assembling a list of bank accounts, annuities, stocks, bonds, mutual funds, brokerage accounts and real estate will speed the process up immeasurably. It will likely also make it much easier for the lawyer to realistically estimate the cost and time to get the probate (or trust) administration completed. Same for creditors.
  • The funeral home will help you determine how many death certificates you will need, and how to get them ordered. You might not have visited with us yet, but here’s a practical reality: if you order them through the funeral home, you will get them faster and more cheaply. If we have to get them later it will be time consuming and more expensive. So when you’re figuring out how many you need, estimate high (at least 5 copies and depending on the estate, we sometimes recommend 10 copies).
  • At some point we’re going to need names and addresses for all the heirs and beneficiaries. For some we will also need dates of birth and even Social Security numbers. You can speed the process up if you start collecting that information.
  • Forwarding the mail is critical. It needs to get done, and it is often the easiest way to get information about assets and bills.

5. One last point we want to make: if you had a power of attorney for the decedent, it is no longer valid. While a “durable” power of attorney survives even if the signer becomes incapacitated, no power of attorney survives the signer’s death. Do not sign checks, make credit card charges, or do anything else using the power of attorney.

Call us to discuss what needs to be done next. We are always very sorry to hear of someone’s loss. We are here to help.

Who Can Serve as an Executor in Utah?

9017410_sWhen you are creating an estate plan, it is important to choose an individual you trust to serve as the executor, personal representative, or trustee of your estate. This can be one of the most important decisions you make in your estate plan and in protecting your loved ones.

In order to serve as an executor of an estate in Utah, the individual must be 21 years of age or older and fit to serve. The court will decide if a person is fit to serve, but it typically must find that he or she is of sound mind. It must also be established that the individual does not have a conflict of interest with administrating the estate which would inhibit his or her ability to act fairly and impartially.

If nobody has been appointed to serve as the executor and more than one qualified person desires to serve, the court will appoint in the following order:

  • the deceased’s surviving spouse
  • children of the decedent, with equal priority
  • other heirs or named beneficiaries of the decedent
  • a creditor, if no other individual or interested party is appointed with 45 days after the death of the decedent

You should ask yourself if you want to leave it to chance and the discretion of the court and your children or spouse. If you have questions regarding creating a comprehensive estate plan or who to appoint as the executor of your estate, 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.



Dividing Your Estate Between Your Children

children on beach_edited-1When you are raising your children, you want to be fair and treat them equally. However, when it comes to estate planning, you may want to use a different strategy. Every person is unique and your children have different life circumstances and needs. Therefore, it is important to consider whether each child should be treated differently in your estate plan. In many situations, treating your children exactly the same in your planning could lead to negative consequences.

You may be worried about how your children will feel about being treated differently. Giving your children different types of inheritances does not mean that you can’t treat them equally. Consider the following:

  • If you have one child that is an adult and one that is still a minor, you may want to consider leaving the adult child a lump sum payment while leaving the minor’s inheritance in a trust for distribution at a certain age.
  • You may have one child that is better-suited to serve as the executor than another child. Regardless of your children’s order of birth, you should appoint the child best equipped for administering the estate (even if it is your youngest child).
  • If you have a child that is unable to properly manage finances, consider leaving a scheduled payment plan, or the share in trust for him or her instead of giving an outright payment. This can be extremely important in providing for your child for a longer period of time.
  • If you have the financial ability to make gifts during your lifetime, you may want to take advantage of the annual gift tax exclusion and make gifts to your children while you can enjoy watching them take advantage of it or for purposes of reducing inheritance tax. For other children who are not ready to receive their inheritance, you can place their gifted money into a trust.

Estate planning provides you with flexibility. You can provide for your children in any number of ways to meet their individual needs. To learn more about creating an estate plan that provides for your children’s unique needs, contact us today to schedule an initial consultation. 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.

How Much Does a Utah Probate Cost?

piggy bank question mark 600pxOne of the most common questions we get from our clients is “how much?” The simple answer is “it depends.” Whether it is creating an estate plan or filing a probate case, no two matters are identical. Let us review your individual circumstances and help you get an idea of what your matter will cost. Regardless, having us by your side to ensure everything is handled correctly will save you and your loved ones a significant amount of money in the long run.

Attorney’s fees

Every law firm has its own method for billing clients. Most probate lawyers charge either an hourly rate or a set fee for their services. It is possible for an attorney to combine these two fee methods. You should never retain a probate attorney until you understand how you will be billed and what services will be provided.

You may be wondering if a Utah probate lawyer can be paid a percentage fee based upon the value of the estate. The answer is “no.” Percentage fees are not allowed for filing or administering a Utah probate. However, an attorney may agree to a percentage fee in certain probate-related lawsuits. For example, if a lawyer represents you in attempting to recover assets of the estate or a lawsuit claiming financial abuse during the probate, a percentage fee may be allowed.

Other probate costs

Depending on your probate action, below are a few additional costs that may be incurred:

  • Filing fees to initiation the probate action
  • Fees associated with providing notice to creditors of the probate action in a newspaper
  • Appraisal fees if certain assets of the estate must have their value determined
  • Accountant’s fees
  • Mediation costs if a dispute arises during the probate case
  • Additional filing fees if lawsuits are filed
  • Witness fees and expert witness fees if a related lawsuit is filed

If you are worried about the costs associated with creating an estate plan or filing a probate action, call us for help. Don’t let your fears about cost stop you from administering the estate promptly and properly. The only thing that happens with delay is that things get more complicated and more costly.

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.