Tag Archives: trust

What Your Loved Ones Need to Know About Your Trust

One of the benefits of a trust is that it allows the creator to keep the contents of it private. If privacy is of upmost importance to you, we can help create a trust with this mind. However, it is also important to provide your loved ones with certain pieces of basic information regarding the trust, including:

  • The individual you appointed to serve as the trustee should be provided all the relevant information regarding where your original trust document is located. If you have stored it in a safe or lockbox, you must inform him or her with the combinations, keys, or other information on how to access it.
  • The individuals appointed to serve as the trustee (or successor trustees) should be provided copies of the trust document.
  • Your trustee and beneficiaries should be given the contact information for your estate planning attorney. Your lawyer can be of great assistance to your family.
  • If you have loved ones that you trust, you should discuss your desires for how your affairs should be handled when you die. Being clear about your decisions and your reasons for making them can decrease confusion and family fighting.

We understand the need to maintain your privacy, but it is also important to make sure that your loved ones have the information necessary to carry out your wishes.

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 you Live in Two States

Many people choose to live in one state for part of the year and in a different state for the other part of the year. When it comes to estate planning, this can cause some confusion. The general rule is that the state of your “legal residence” controls. Your legal residence is the state that you designate as such. An individual typically does this by living in the state for at least 183 days out of the year and holding his or her driver’s license, vehicle registrations, voting rights and bank accounts in that state.

When you live in two states, if properly planned, you get to choose which state is more beneficial to you for estate planning purposes. As a result, it is important to seek legal counsel in making this decision so you can fully understand which state’s tax laws would be more advantageous. Your estate plan can be significantly impacted because some states have state tax laws in addition to the federal estate tax law. You can save significant income and estate tax by making the right decision.

You should almost always use a trust if you own property in two states. Otherwise, it is likely that your loved ones will have to go through the probate process in one or both states. A trust can hold both pieces of real estate and help avoid the time-consuming and costly probate process.

It is also important to note that you should create certain documents that are correct and effective for each state. For example, you should probably have a Durable Power of Attorney and Advance Medical Directive in each state to make sure you are protected if you encounter unexpected events or require medical decisions to be made on your behalf, and which are compliant with the laws of both states.

If you have questions regarding creating an estate plan when you live in two different states, contact us for the answers you need.

To learn more about how a trust can benefit your family, call us today. 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 Happens if a Trustee Distributes My Inheritance to Somebody Else?

If you have been named as the beneficiary of a trust and the trustee is not acting appropriately, it is important to get help as soon as possible. Improper distributions of trust assets can be made by mistake or by intentional wrongdoing. Whatever the cause, the quicker you take action, the more likely you are to obtain a successful result.

It is important to understand that a trustee must be fair in his or her treatment of the beneficiaries. The trustee is also obligated to comply with the terms of the trust. Failure to comply with his or her duties could result in you having a claim against the trustee. Some of the possible claims you may have against the trustee of a trust include:

  • The trustee made a distribution of property or the payment of money to a party that was not named as a beneficiary of the trust.
  • The trustee gave a beneficiary an excessive payment not authorized by the trust, which caused a reduction in the distribution to you.
  • One of the contingent beneficiaries that is entitled to receive the distribution of a primary beneficiary that died before the settlor of the trust did not receive his or her share.

There are other forms of misconduct by a trustee that may warrant legal action. If you have concerns regarding how a trustee is managing a trust or about the accuracy of your distributions from the trust, it is important to contact us immediately to protect your inheritance.

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.

Utah Probate Basics

Many of our clients come to us because they have lost a loved one and they have no idea if a probate action is necessary or not. Below are some of the most commonly asked questions and answers, but we encourage you to contact us for help with your individual situation.

 Is a probate necessary if the decedent left a will?

Probably. If the decedent left assets or property that needs to pass to heirs, a probate action is necessary whether or not the deceased left a will. A court will follow the terms of the will to determine the heirs and beneficiaries of the deceased’s property.

Is a probate necessary if the person died without a will?

Again, if the individual left assets that need to pass to heirs, a probate action is required. Without a will to provide guidance, the court will follow Utah’s laws of intestacy (Utah Probate Code, sections 75-2-101 through 75-2-103). You may hear the probate case for a person who died without a will referred to as an “appointment action,” which refers to the appointment of a Personal Representative by the court.

Is a probate necessary if there is a Trust?

Maybe. If a Trust has been created and all of the deceased’s property was left in the Trust, it can be an effective way to avoid probate. However, if the decedent left property out of the trust, a probate action may be necessary. A probate may also be needed to defend against lawsuits filed by creditors of the deceased or if the decedent left a minor child who needs to have a guardian appointed.

Can a will from another state be probated in a Utah probate court?

A will drafted in another state can be submitted for probate if the maker of the will resided in Utah or had property located in Utah at the time of his or her death. The will must be valid in the state where it was executed in order to binding in Utah.

If you are wondering if a probate is needed, contact us for the answers 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.

Should I Transfer My Home While I’m Alive?

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.

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.

Asset Protection with Generation-Skipping Trusts

Couple giving two young children piggyback rides smilingIf you have worked hard all your life to accumulate your wealth, whether it is a small amount or a significant amount, it is important to protect your assets. Estate planning is a critical element of asset protection efforts. In order for estate planning to be effective, you should try to identify all of the potential “threats” to your assets. Common examples include taxes, the expenses associated with probate actions, former spouses, and creditors.

There are numerous ways we can help you avoid certain threats that could negatively impact or deplete your assets. One option to consider is placing your assets into a generation-skipping trust. As indicated by the name, you skip a generation when naming beneficiaries. In other words, you name your grandchildren as the final beneficiaries instead of your children. This may sound shocking, but there is a twist to this arrangement. Your children can be life beneficiaries, with the Trustee having the discretion to distribute income or principal of the trust to your children during their lifetime.

As a result, because your children do not own or have the right to assets in the trust, the assets are not available to attack by their creditors. The remaining trust assets left after your children die are transferred to your grandchildren. In sum, a generation-skipping trust impacts ownership, not the benefits received or the ability to use trust assets.

The generation skipping type of trust benefits your children and grandchildren, but not necessarily you as the Grantor. If you are working to protect assets for your benefit, there are other strategies such as use of Family Limited Liability Companies (“FLLC”), or Domestic Asset Protection Trusts, or even more complicated arrangements using Off-Shore Trust arrangements.

Generation skipping trusts are just one example of how you can protect your assets. Let us review your individual circumstances and help you understand your options for asset protection and tax advantages for your family. 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.