Tag Archives: will

What if an Heir Dies First?

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.

Contesting a Will by Proving Fraud

You might be surprised to learn that if you read a loved one’s estate planning documents and they seem “off,” it could be because they are fraudulent. All too often, the elderly fall victim to scams or con artists taking advantage of them. If fraud occurred in the creation or amendment of your loved one’s Will or other estate planning documents, a beneficiary or heir may have grounds to lodge an objection to the validity of the estate plan.

Proving fraud when challenging a Utah will requires you to be able to submit substantial evidence that fraud occurred. Thus, if you suspect your loved one was the victim of fraud, it is imperative that you confer with a knowledgeable attorney to help you understand your legal rights.

One of the first issues to be determined is whether you have “standing” to file an objection to the will. If you are an heir that stands to inherit from the deceased under the law (if the deceased had died without a will) or a named beneficiary, you have standing.

Another issue to address is whether you can prove that your loved one’s will would have read differently, had the fraud not occurred. In other words, you must show that your inheritance was negatively impacted by the fraud. You must also be able to prove that the deceased relied on the fraud or misrepresentation when the will was created. We can assist you with establishing that the deceased would not have executed the will had he or she been aware of the fraud.

Finally, you must provide evidence to the court that the person that committed the fraudulent conduct did so intentionally. This is often demonstrated by the fraud resulting in the fraudster inheriting money or property from the deceased.

A valuable and persuasive piece of evidence in contesting a will is to submit a copy of the prior estate planning documents signed by the deceased. Additionally, any proof of the deceased’s state of mind at the time the will was executed can be helpful.

If you are considering objecting to a loved one’s will, 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.

Why is Estate Planning such a Big Deal?

Most people believe that estate planning is important, yet they don’t think it is necessary for them. We often hear people say their estate isn’t big enough or that they will get around to creating an estate plan when they are older. However, an estate plan is important for everyone at all levels of net worth. Below are three central reasons why YOU need an estate plan:

  • You want to protect your family. If you fail to create an estate plan and you die, your loved ones are left with a big mess. Not only can financial disputes occur, probate can be time-consuming and costly. Your estate plan can not only safeguard your assets, but it can also provide your loved ones with peace of mind and guidance once you are gone.
  • You want to save money. Sadly, many people postpone creating an estate plan because they think it will be too expensive. The cost of creating a comprehensive estate plan is minimal when compared to what can be lost financially if you die without a plan in place. Your estate plan can provide asset protection, save on taxes, and prevent litigation expenses. Consider this: in one estate we read about recently the husband died leaving a business owned by two sons and a mom. It has easily cost the family over $500,000 in fees and has taken more than four years to get resolved and the family will never heal. Another case recently reviewed showed that a girlfriend of 18 months, much younger than the decedent, sued to become the common law spouse and inherited millions in property.
  • You want peace of mind. Once you create an estate plan, you will have the peace of mind that you are saving your family from stress and conflict. It will also give you the comfort of knowing that your own future and senior care is planned and provided for. By creating power of attorney documents and a trust, your loved ones will be equipped to handle your long-term care without the time, cost, and stress of going to court to obtain authority to manage your affairs.

There are many other reasons to create an estate plan, but they all center on the three goals outlined above. Whatever you want to accomplish in your estate plan, 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.

What is the “Reading” of a Will?

Many movies portray the reading of a Last Will and Testament as a dramatic event that the entire family attends. Although the reading of wills occurred in earlier times when copying legal documents was costly and there was widespread illiteracy, today dramatic will readings are left only for the movies or television shows. For most estates, the attorney for the deceased will determine who is entitled to receive a copy of your Will so they can read it for themselves.

The individual you appointed as your personal representative or trustee and the named beneficiaries should each be provided a copy of your Will. In some situations, it may be wise for an accountant or an experienced estate planning attorney familiar with taxation issues to also review the Will and decide what it provides regarding paying creditor’s claims and estate taxes.

If certain parties emerge to object to the validity of the Will (for example, disinherited heirs), a copy of the Will is typically provided to them as well. If the challenge to the Will is based upon a question of which of the deceased’s Wills is effective and current, this simple disclosure can generally resolve the dispute. If the dispute is not resolved, your lawyer will want to set a deadline for filing an action to contest the Will.

It is important to note that once your Will has been admitted for probate, it becomes a public record that can be accessed by anyone who is interested in reading it. There are certain situations in which the beneficiaries may seek permission from the probate court to seal the court records and prevent public access to the Will, but you must obtain a court order for this to occur. Most judges only approve this request in rare circumstances. If maintaining your privacy is a critical concern for you, creating a Trust may be an option to consider in establishing your estate plan.

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.


Initial Steps to Follow when a Loved One Dies

When a loved one dies, it can leave you wondering where to turn to next. Not only are you dealing with your grief, but you must also step-up and manage the deceased’s affairs. Before you get overwhelmed with the numerous tasks you must tackle, below is a short checklist of the initial issues you must address:

  • Contact a funeral home or mortuary. You must decide which funeral home or mortuary should be contacted. If your loved one had a specific religious preference, you should notify the appropriate minister, advisor or other leader to assist with the services.
  • Notifications. Drafting a list of friends and family members that should be contacted can be extremely helpful. Making notification calls can be emotionally stressful and you should ask for help. If you have a prepared contact list, it can make this process simpler for everyone.
  • Death Certificate. Usually your loved one’s physician or medical examiner will finalize and execute the death certificate. You will need several certified copies of the death certificate to provide to your loved one’s banks, insurance companies and other similar interested parties. Do not allow the removal of a body from the home without the medical examiner or law enforcement acknowledgement and approval. This can complicate getting a death certificate.
  • Estate plan. If your loved one had a Last Will and Testament, Revocable Trust and/or other estate planning documents, you should confer with a qualified estate planning lawyer to discuss how to handle the probate and distribution of your loved one’s estate.

The above are examples of the initial matters that require your attention soon after a loved one dies. Our next blog titled “Affairs to Handle after a Loved One Dies” will go more in-depth in discussing the other tasks that should be handled after the funeral or other services. Remember, our attorneys are here to help you with everything you are facing when a loved one dies. Also, if you or a family member needs assistance in preparing an estate plan, call 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.

Is Your Estate Plan Complete?

If you have an estate plan, you may be wondering if it is complete and comprehensive. This is especially true if your plan was created several years ago and your life circumstances have changed. Below is a checklist of questions you should consider regarding your current estate plan:

  • Do you have a Will and/or Trust, Healthcare Proxy and Power of Attorney?
  • Are the individuals or entities named as your executor, successor trustee, power of attorney or healthcare agent still the persons you want to serve in these roles?
  • Have you relocated since your estate planning documents were drafted? If so, do your documents still comply with the applicable law where you live?
  • Are you transferring any personal property to a person under the age of 18 years?
  • Are the beneficiaries you are giving your assets to capable of properly handling the bequests or new wealth?
  • Are there any specific gifts to certain individuals that you want to make?
  • Are any of your assets held in joint accounts or where you have a designated beneficiary? If so, do your estate planning documents match your designations?
  • Is your property being distributed to your beneficiaries outright or in trust?
  • Do any of your beneficiaries have special needs that should be considered?
  • Will your estate plan provide you with tax advantages?
  • Have you notified your loved ones of where your estate planning documents are located?
  • Have you left information regarding how to access your digital assets?

The above list is not exhaustive, but it provides you with a good start in determining where your estate plan stands. If you need assistance understanding the consequences of your plan as it is currently drafted or whether it should be updated, we can help. If you are like most people (and most of our clients), you understood your documents when they were signed, but they can be complex and you may not be clear now. A review with a good estate planning attorney can give you great peace of mind, or help you spot changes you may want to consider.

The Astill Law Office has provided high quality legal services for over 30 years. We specialize in wills, trusts, estate planning, and asset protection. If you have any questions about creating a Trust, Will, or estate planning in general, contact The Astill Law Office at 801-438-8698.

When can a Decedent’s Last Will be Challenged?

Challenging a decedent’s Last Will and Testament is a serious matter. When you object to a Will, you are questioning the validity of it. Most objections to a Will are filed by relatives that are angry because they were not named as a beneficiary and they assume it was a mistake. Another common scenario is when a spouse objects to a Will that was drafted before the marriage and does not name him or her as a beneficiary.

There are numerous reasons a Will can be held invalid. Below are a few examples of the most common grounds for a Court to render a Will unenforceable:

  • Lack of Mental Capacity. The law requires a testator to have the mental capacity to understand the nature and amount of his or her estate. The testator must comprehend who has been named as the beneficiaries and how the Will distributes his or her property. If it can be proven that the deceased lacked adequate mental capacity, the Will may be held invalid.
  • Undue Influence. A Will must be created and signed freely and without coercion by third-parties. A Will executed under duress is invalid.
  • Mistake or Fraud. If a Will was signed by the testator based upon a misunderstanding of the contents of the Will or if there is actual fraud involved, the Will is unenforceable.
  • Revoked Will. A Will that has been previously revoked by the testator cannot be enforced.
  • Failure to Meet Requirements. Every state has specific requirements that must be met in order for the Will to be valid. If it can be proven that one of these requirements was not met, the Will may be successfully challenged.

Will challenges can be expensive and damaging to your family relationships. Consideration should be given to strategies to defeat a claim in advance. If incapacity is a concern, having a Doctor or medical professional confirm legal capacity is advisable. If a testator is making a gift to a caregiver, special care should be given to avoid claims of undue influence. Finally, proper drafting will avoid most challenges. Avoid DIY (do it yourself) Wills or you are almost certain to open the door to claims. If you want to ensure that your Will cannot be successfully challenged, we can help. Additionally, if you are interested in learning whether or not you should object to a loved one’s Will, contact our office.

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.

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.

Challenging a Will

gavelIf you are considering challenging the validity of a Last Will and Testament of a loved one, you should understand it is serious business. Even if your objection to the Will is a simple claim that a simple mistake was made, it can bring the validity of the entire Will into question. There are numerous circumstances where a Will can be contested, including:

  • Lack of mental capacity. If the court finds that the testator lacked the mental capacity to understand the nature or amount of his or her estate, or how the Will disposes of the estate, the Will can be held invalid.
  • Failure to comply with the law. If a Will fails to meet the requirements set forth by the applicable law (such as in writing, witnessed, notarized, etc), it may be successfully challenged.
  • Mistake or fraud. If the testator signed the Will based upon a misunderstanding or actual fraud, it can be held invalid.
  • Undue influence. If the testator made the Will under the undue influence or duress of another party, it can be held invalid. A Will must be made freely and without coercion of anyone else.
  • Revocation. If a more current Will exists, or if the testator otherwise revokes the Will that has been submitted for probate, the objection to it may be upheld.

Challenging the validity of a Will usually involves serious, expensive and protracted litigation and division within families. It should not be undertaken lightly or with the hope that a quick settlement will result. Only an experienced estate planning attorney can help you evaluate the case and the wisdom of challenging the Will. Exploring all of the facts and circumstances before filing an action is necessary to determine whether it is prudent. In cases that merit the challenge, you may need both an estate planning attorney and a good trial attorney.

To learn more about contesting a Will or defending an objection to one, contact our office 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.