AB Trusts

AB Trusts

Normally, when one spouse dies passing on his/her assets in a last will and testament, the estate will be taxed heavily before the beneficiaries receive it. To avoid this steep estate tax, spouses can set up an AB trust, where each spouse leaves their property to an irrevocable trust. When it comes to estate planning, an AB trust is a trust created by married couples to maximize their federal estate tax exemptions. A lot of people believe that AB trusts only benefit those with large estates. The truth is anyone who may owe estate tax can benefit from an AB trust.

 How the AB Trust System Works

When the first spouse dies, the beneficiaries (usually the couple’s children) named in the trust receive that spouse’s property. However, this irrevocable trust is to be used for the benefit of the surviving spouse, who does not technically own the property. There is a crucial condition that the property can be used by the surviving spouse and that the surviving spouse may even spend principal in certain instances. Once the surviving spouse dies, all the property rights and benefits of the irrevocable trust pass to the surviving beneficiaries of the trust. Because the surviving spouse does not own the property, it is not subject to estate tax. Setting up an AB trust this way keeps the portion of the surviving spouse’s estate that is taxable half of what it would be without an AB trust.

Surviving Spouse’s Rights Over the Assets

As mentioned, the AB trust is left with the condition that it is to benefit the surviving spouse. This gives the surviving spouse some power over the assets, depending on the provisions of the trust. This is a part of probate law that some people struggle with.

The surviving spouse’s rights and benefits include receiving all income from the trust property, including:

  • Interest
  • Using the property
  • Spending to benefit his or her health, support and maintenance, standard of living, and education

The surviving spouse maintains these rights until her death, at which time all of the property is distributed to the beneficiaries of the original trust, and all of the surviving spouse’s property is distributed to his or her beneficiaries.

Disadvantages of an AB trust

The AB trust is irrevocable. Once one spouse dies, there cannot be any changes made to the trust. This can create some issues and has even caused friction between the surviving spouse and the named beneficiaries of the trust. As mentioned, the surviving spouse’s rights to use the property are limited. Where at one time this used to be the property he or she shared with his or her spouse, to do with as they pleased, this property is now restricted to certain uses and rights.

Settling and distributing property in an AB trust can be expensive and often requires a lawyer and accountant. Furthermore, these tax laws are always changing. You’ll need to keep current, or hire a professional to keep you current, on these changes and what they mean for you and your trust. These changes may even encourage you to change or even revoke your trust.

There is a lot of paperwork and bookkeeping required in an AB trust. The surviving spouse needs a tax ID number for the irrevocable trust and must file annual income tax returns on the trust. He or she must also keep records of all the AB trust property.

Is an AB trust is Right for You?

An AB trust is best suited for those married couples who are both over the age of 60 and do not have children from previous marriages. Often times when there are children from previous marriages conflicts arise between the surviving spouse and the deceased spouse’s children about who should share in the assets. If you think an AB trust might be for you or you have more questions, you should consult an attorney who can advise you based on your specific circumstances and your specific needs.

Free Consultation with a Utah Estate Planning Lawyer

If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

Recent Posts

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Probate Lawyer

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Emancipation of Minors

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from Michael Anderson http://www.ascentlawfirm.com/ab-trusts/

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Emancipation of Minors

It seems like every child wonders when he or she can be treated like an adult. The answer usually varies depending on whether they are asking their parents or the legal system. In family law cases, emancipation of a minor (also called “divorce from parents”) refers to a court process through which a minor can become legally recognized as an independent adult. Through emancipation, a minor can take responsibility for his or her own welfare, and make the major decisions that parents typically would handle. Therefore, minors will generally need to establish their ability to independently live and support themselves before a court will grant emancipation.

Emancipation of Minors

This section provides information on the emancipation process, from the basics of emancipation law and age restrictions to the rights and responsibilities that come with it. In addition, some states have unique minor emancipation laws, which are listed in this section. There are also resources for parents, including a guide to when and if their legal obligations to emancipated children continue.

Benefits and Limitations of Emancipation

The benefits of emancipation are apparent to the minor: the ability to enter into contracts (including automobile and housing agreements), the ability to make their own education and medical decisions, and the ability to keep all of their income and determine how it is spent. For parents, they no longer need to support the child, financially or otherwise, and most child support will cease when the child is emancipated. However, emancipation does not make a minor an adult in terms of every law. Even an emancipated minor will have to wait until they reach the age of majority (usually 18) before they have the right to vote or get married. It should be noted that not every state provides the legal means for emancipation.

Requirements for Emancipation

Even though most emancipations are an effort to circumvent age requirements, there are still minimum ages that must be attained before a court will grant emancipation. These vary depending on the state, with some setting them as low as 14 and as high as 18 (where the age of majority is 19). There may also be notification requirements for the filing, and information that must be included in the emancipation filing, which can also vary depending on the jurisdiction. In most every case, a court will make a determination based on what it sees as the child’s best interests. Some factors would include the child’s financial and living situation, their maturity and decision-making ability, and any family history of abuse or neglect.

Procedure for Emancipation

In certain circumstances, emancipation is automatic. For example, once a minor joins the armed forces or gets married, they are generally considered legally emancipated. In all other cases, the minor will have to petition the court for emancipation. The threshold of evidence a minor must show in order to be granted emancipation will vary, but normally the minor must prove financial independence, adequate living arrangements, and sufficient maturity. As noted above, the court will look to the minor’s best interest when making an emancipation ruling.

Legal Assistance for Emancipation

While it may be possible to petition the court for emancipation on your own, it never hurts to have some expertise on your side. A qualified family attorney or a local legal aid office can provide more specific guidance regarding the local requirements and emancipation procedures.

Free Initial Consultation with Family Lawyer in Utah

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

Recent Posts

Avoiding Probate

Estate Planning Help

20 Secrets to Building a Great Marriage

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Child Visitation

from Michael Anderson http://www.ascentlawfirm.com/emancipation-of-minors/

Child Visitation

Biological parents have a right to seek child visitation or child custody. This is true regardless of whether the child’s parents were married when the child was born. Like other child custody decisions, courts use the best interest of the child to decide disputed child visitation or custody cases involving unmarried fathers. Unless evidence indicates otherwise, courts making child visitation decisions presume that involvement of both parents benefits the child.

Child Visitation

You Need to Establish Paternity if You’re Not Married

Fathers who were not married when their child was born must legally establish paternity in order to gain access to father’s rights. Often, this simply means both parents signing and filing an acknowledgment of paternity with the appropriate state agency or court, either at the time of the child’s birth or afterward. In disputed paternity cases, a legal process including DNA testing will conclude with a court order stating whether the man in question is the child’s biological father.

Once paternity is established, a father may pursue child visitation or other child custody rights. Many states offer simultaneous filing for recognition of paternity and for visitation or custody rights.

Child Visitation and Child Custody Agreements

Either before or after a legal process has begun, many parents negotiate a parenting agreement (also called a parenting plan). A parenting agreement can include a wide variety of details including which parent will have primary custody, specifics on the other parents visitation periods, particulars on which parent will make decisions regarding the child’s education, health care or religion, as well as procedures for the handling of potential changes to the arrangement.

Court Orders on Child Visitation or Custody

Either after securing a parenting agreement, or if unable to agree, either parent may petition the court for child visitation or custody help. Parents who can agree to a parenting plan may file it with a court, asking the judge to approve and incorporate it into a court order on visitation and/or custody. Having the agreement become part of a court order allows either parent a direct way to enforce his or her parental rights.

If the parents cannot agree on visitation or custody arrangements, either one may ask the court to grant his or her request through a contested hearing. Courts deciding visitation and other custody issues focus on the best interest of the child. Generally, courts presume that children benefits from having both parents involved in their upbringing. This presumption can be overcome if one parent can show that visitation or custody by the other parent would likely cause harm to the child. For example, evidence of domestic violence or drug problems could be used to argue against a parent having custody or visitation with a child.

It is rare for fathers to win sole custody of a child already being raised by the mother. To do so, an unmarried father would likely need to show that the mother is unfit to raise the child and/or that he has been the child’s primary caregiver. Child visitation or shared custody rights, however, allow many unmarried fathers to play a consistent role in their children’s’ lives.

Should arrangements need to change, the court can modify the child visitation or custody order, either after both parents agree to the change, or after one parent petitions the court to make the change. Some states allow parents to agree on modification to visitation arrangements without a courts approval, however, a modified updated court orders allow easier enforcement of agreed arrangements.

Get a Free Evaluation of Your Child Custody and Child Visitation Concerns

Each state has their own laws surrounding child custody, child visitation, and the role of unmarried fathers. In Utah, the quicker you act the better off you are. While unmarried fathers do have parental rights, understanding the boundaries and limitations of those rights is important moving forward. You should
contact a Utah child custody lawyer right away to protect your rights or you will lose your rights. A local family law attorney with experience in these matters can help you avoid problems and give you peace of mind. Get started today with a free legal evaluation of your case.

Free Consultation with a Utah Child Custody Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

10 Reasons to Have a Will

Having a will is arguably one of the most important things you can do for yourself and your family. Not only can a will legally protect your spouse, children, and assets, it can also spell out exactly how you would like things handled after you have passed on.

10 Reasons to Have a Will

While each person’s situation varies, here are the top ten reasons to have a will.

1) You decide how your estate will be distributed. A will is a legally-binding document that lets you determine how you would like your estate to be handled upon your death. If you die without a will, there is no guarantee that your intended desires will be carried out. Having a will helps minimize any family fights about your estate that may arise, and also determines the “who, what, and when” of your estate.

2) You decide who will take care of your minor children. A will allows you to make an informed decision about who should take care of your minor children. Absent a will, the court will take it upon itself to choose among family members or a state-appointed guardian. Having a will allows you to appoint the person you want to raise your children or, better, make sure it is not someone you do not want to raise your children.

3) To avoid a lengthy probate process. Contrary to common belief, all estates must go through the probate process, with or without a will. Having a will, however, speeds up the probate process and informs the court how you’d like your estate divided. Probate courts serve the purpose of “administering your estate”, and when you die without a will (known as dying “intestate”), the court will decide how to divide estate without your input, which can also cause long, unnecessary delays.

4) Minimize estate taxes. Another reason to have a will is because it allows you to minimize your estate taxes. The value of what you give away to family members or charity will reduce the value of your estate when it’s time to pay estate taxes.

5) You decide who will wind up the affairs of your estate. Executors make sure all your affairs are in order, including paying off bills, canceling your credit cards, and notifying the bank and other business establishments. Because executors play the biggest role in the administration of your estate, you’ll want to be sure to appoint someone who is honest, trustworthy, and organized (which may or may not always be a family member).

6) You can disinherit individuals who would otherwise stand to inherit. Most people do not realize they can disinherit individuals out of their will. Yes, you may wish to disinherit individuals who may otherwise inherit your estate if you die without a will. Because wills specifically outline how you would like your estate distributed, absent a will your estate may end up on the wrong hands or in the hands of someone you did not intend (such as an ex-spouse with whom you had a bitter divorce).

7) Make gifts and donations. The ability to make gifts is a good reason to have a will because it allows your legacy to live on and reflect your personal values and interests. In addition, gifts up to $13,000 are excluded from estate tax, so you’re also increasing the value of your estate for your heirs and beneficiaries to enjoy. Be sure to check the current laws for your year to learn the most up-to-date gift tax exclusions.

8) Avoid greater legal challenges. If you die without a will, part or all of your estate may pass to someone you did not intend. For example, one case involved the estate of a deceased son who was awarded over $1 million from a wrongful death lawsuit. When the son died, the son’s father – who had not been a part of his son’s life for over 32 years – stood to inherit the entire estate, leaving close relatives and siblings out of the picture!

9) Because you can change your mind if your life circumstances change. A good reason for having a will is that you can change it at any time while you’re still alive. Life changes, such as births, deaths, and divorce, can create situations where changing your will are necessary.

10) Because tomorrow is not promised. Procrastination and the unwillingness to accept death as part of life are common reasons for not having a will. Sometimes the realization that wills are necessary comes too late – such as when an unexpected death or disability occurs. To avoid the added stress on families during an already emotional time, it may be wise to meet with an estate planning lawyer to help you draw up a basic estate plan at the minimum, before it’s too late. Be sure to read What Not To Include When Making a Will for more wills information.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Living Will

Living Will

The term “living will” is a bit of a misnomer, as living wills are not wills in the traditional sense. A typical will takes effect upon a person’s death, providing instructions such as for the distribution of his or her property and other assets. A living will, on the other hand, allows a person to specify medical treatment and care instructions that take effect while he or she is still living. This is a part of estate planning. For example, if a person becomes mentally incapacitated or otherwise unable to make or communicate health care decisions, a living will provides family members and hospital personnel with the person’s medical care instructions and preferences. This section provides information and resources related to living wills and other health care directives. You’ll also find an overview of state living will laws, a sample living will form, and a discussion of a health care power of attorney.

What Is a Living Will?

A living will is a legal document that contains a person’s medical care and treatment instructions. The purpose of a living will is to allow a person to express health care decisions while he or she is mentally able to do so. In general, health care providers are required to obey the instructions contained in a person’s living will.

What Types of Procedures Are Covered in a Living Will?

States have passed laws covering living wills and other forms of health care estate plans. Because there are differences in these laws, it’s important to be fully informed of applicable regulations and requirements as you begin to plan your living will. In many states, a living will allows a person to express instructions concerning the use of a respirator to maintain breathing, the use of procedures such as blood transfusions and dialysis, and the injection of intravenous fluids and nutrients to sustain life. Keep in mind that a living will allows you to both refuse and to accept certain forms of treatment. For example, a person can refuse to undergo blood transfusions while stating an intent to receive intravenous drugs.

Benefits of Creating a Living Will Now

A person who creates a valid living will can feel secure in knowing that his or her medical care instructions will be honored. By creating a living will or other similar plan, you can avoid unwanted medical treatments and their associated costs. As an added benefit, your family members and friends will have advance knowledge of your medical and end-of-life care preferences. This can prevent emotional and harmful disputes from occurring.

Health Care Power of Attorney or a Living Will?

An alternative to drafting a living will is creating a health care power of attorney. This is a legal document that allows one person to grant another person the authority to make medical care and treatment decisions on the first person’s behalf. If you have a trusted family member or close friend who is a medical care professional, a health care power of attorney relationship can be a good idea. In Utah, you really should use the Advanced Health Care Directive that the Utah Legislature has put into place. A Utah lawyer can help you with this.

How an Attorney Can Help with your Living Will

If you have questions about living wills and other types of health care estate plans, an attorney can answer them. He or she can also help you to create a living will that reflects your intentions and wishes. This section provides a link for consulting with an experienced estate planning lawyer in your area.

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

20 Secrets to Building a Great Marriage

20 Secrets to Building a Great Marriage

Too often, at Ascent Law, we talk about divorce, child custody and other marital issues. Sometimes we foget to talk about good things – things that’ll help in a marriage. So, here is some advice. Many couples could avoid divorce if they got some good advice (and remembered it) when their marriage started having serious trouble. Here are some tips that should benefit most couples.

  1. Think before you speak.Couples tend to develop hot button issues that cause frequent arguments. You can reduce bickering by waiting before responding to something that has made you angry. Count to ten. It may be better to discuss difficult issues once emotions are not so high.
  2. Don’t give up.Any married person will tell you that marriages wax and wane. There are good times, bad times, and so-so times. A marriage is viable if the good outweighs the bad, even by a little bit. The more you appreciate the good and try to let the bad roll off, the easier it will get, and the more fondness and connection you will feel towards your spouse.
  3. Give your marriage at least as much attention as you give your hobbies.People spend huge amounts of time, money, and effort on their off-work interests. But when a marriage is making them feel bad, some throw up their hands and decide that it’s useless to try anymore. Reading books on marriage, conflict resolution, and communication techniques will help your marriage. Getting your spouse to read them is even better.
  4. Treat your spouse better than you treat anyone else.Have you heard the expression “familiarity breeds contempt?” The unfortunate truth is that people tend to treat their spouses worse than they treat strangers. Retrain yourself to give your spouse the utmost respect.
  5. Have separate interests.Make sure you have some private space, and give your spouse some, too. Marriage entails a lot of togetherness, but you don’t need to be joined at the hip.
  6. Encourage your spouse’s dreams and goals.In a successful marriage, one spouse is happy for the other’s successes. Good spouses foster the other in achieving goals. Sometimes goals, such as a career change, are scary and need to be carefully evaluated. Do the work together.
  7. Find things you enjoy doing together.A marriage is a partnership. If you both have totally separate interests, you will eventually grow apart. Find shared interests, pursuits, and enjoyment, recognizing that these activities will probably change over time.
  8. Don’t think the grass is always greener on the other side.Most people who leave their marriages for someone else find the same problems in the new relationship, and many regret not having worked things out in their first marriage.
  9. Don’t sweat the little things.As in the world of work, it is important to have priorities. Carefully pick your battles, and let the other stuff slide.
  10. Compliment your spouse at least once every day.This leads to a healthy relationship, and it is the right thing to do, because your spouse is probably doing many good things every day.
  11. Work hard with your spouse to create financial security.One of the benefits of marriage is the creation of a strong economic joint venture. As your financial security builds up, it will be one of the things that lets you feel good about each other and the world. It will also be a measure of the good work you’ve both done during your marriage.
  12. Be your spouse’s partner.Keep each other informed about activities you are engaged in, including your work days and what you do at home. The time you spend separately outside in the world every day is very significant. Always talk to each other at the end of the day about how your day went.
  13. Always assume the best of your spouse.Everyone has misunderstandings and miscommunications. If your spouse’s actions displease you, wait a bit and, then, try to find out the motivation. You might well find that your spouse meant to be constructive and not negative and that you made the wrong interpretation or assumption.
  14. Give your spouse a treat occasionally.If there’s something your spouse likes, offer itwithout being asked sometimes, even if you don’t care for it. It can be a small thing: a date to the movies, a ride to a place your spouse likes to go, or maybe a favorite food from the grocery store.
  15. Don’t fight with your spouse about the kids.Disagreements about children can be very corrosive to a marriage. Have your discussions off-line so that your children do not know you disagree. Get professional advice, if needed, to help you coordinate and respect your different views.
  16. Don’t complain about your spouse to your friends and family.One complaint at a low time in your marriage will resonate with the listener long after the problem or spat was resolved. If you need to talk with someone about your marriage, find an independent professional.
  17. Be faithful.Affairs destroy many marriages. If you can’t resist someone outside of your marriage, be honest with everyone and end the marriage first.
  18. Spend time with mutual friends.Pursuing outside friendships together, with single people or other couples, is often very good for a marriage.
  19. Forgive each other.Marriage is very long, and bad things are bound to happen. Every spouse (even you!) makes mistakes and treats the other poorly at times. You must be able to forgive your spouse for the wrongs done to you and move on. Remember that the next time it may be you who needs to be forgiven.
  20. Appreciate each other’s contributions to the marital venture.Marriages often fail because of perceived differences in the level of contribution of each party. Try to appreciate the other person’s contributions, whether they are financial or emotional.

Marriage isn’t easy. Building a strong marriage takes time, effort, and maturity. But it’s worth it.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fhelp you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Estate Planning Help

Estate Planning Help

If you need immediate help with an estate planning issue involving a will, trust or estate, or would like to contact an estate planning attorney, you’ve come to right place. Because state laws vary considerably and communicating this essential information without vagueness while still complying with local rules can be complicated most people will benefit from the assistance of an attorney in preparing and executing the final documents. However, the better your understanding of the requirements, the easier and more effective your time with an attorney will be. Please select from of the following topics to learn more about getting legal help with an estate planning issue.

Estate Planning Forms and Tools

Examining the standard forms for a basic will, health care power of attorney, living will directive to physicians, designation of surrogate, and other important estate planning forms and checklists can help you better understand the purpose and structure of these legal devices. These tools are meant to be the beginning, rather than the end of a process of structuring the documents that help communicate your wishes to health care providers and courts in situations when you are unavailable to speak due to death or disability.

Materials in this section include an estate planning case intake questionnaire that can help an attorney determine which estate planning tools you need, an estate planning checklist to help ensure that you have considered all aspects of estate planning that are commonly needed, a checklist of action items for an estate executor organizing the actions required for an individual in this role, and sample documents including a basic will, a living will, a health care power of attorney form, and more.

In addition to basic forms and checklist there are articles that provide state-specific forms for advance directives and living wills and an article discussing the advantages of various estate planning tools.

Using an Estate Planning Attorney

Organization and preparation are always helpful if you are planning to meet with an attorney. Since time for a consultation may be limited, or the attorney may charge an hourly rate, the time spent preparing yourself and your paperwork can often translate into a cheaper and more thorough analysis of your needs. To help you prepare there are materials provided here that can help ensure that you present the information an attorney needs to help you plan your estate.

One such tool is an intake questionnaire designed to help organize the information most relevant to estate planning. This form will help you present your attorney with information about the property and family connections that most frequently affect which documents are necessary and how they should be structured. The form also asks questions designed to help you and your attorney determine which kinds of estate planning tools are most appropriate for your needs.

An experienced estate planning attorney will work closely with you to develop a set of estate planning documents that address your concerns in a way that is right for you. They will ensure that your wishes are communicated clearly and with the maximum weight of the law, while also anticipating and avoiding negative tax implications by consulting with expert accounting and tax advisers in some instances. Finally, they prepare and execute all of the necessary documents such as wills, living trusts, testamentary trusts, and powers of attorney.

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Avoiding Probate

Avoiding Probate

Probate is a court-supervised process of distributing and overseeing property after a person dies. The purpose of probate is to determine the wishes of the deceased, pay debts, and to distribute the property according to the decedents wishes. The following occurs during probate:

  • Determination of the executor or the appointment of an administrator
  • Authentication of the will
  • Identification and inventory of the decedents property
  • Identification of heirs and beneficiaries
  • Payment of debts and taxes
  • Distribution of property according to a will or according to state law

Many individuals take into consideration avoiding probate in deciding on an estate planning option.

Is avoiding probate possible through probate exemptions?

Yes, in some states the law provides a way of avoiding probate by allowing an exemption or a simplified probate process for small estates only worth a certain amount. In California, for example, small estates worth less than $100,000 escape the probate process. In a few states, probate is eliminated or a simplified probate process applies for property left to the surviving spouse.

If avoiding probate is not an option, who is responsible for managing the probate process?

An executor named in a will or an administrator appointed by a probate court is responsible for overseeing the probate process. A probate judge appoints an administrator if an executor is unnamed in a will or if the decedent died without a will. Usually, the administrator is a relative or the person inheriting the majority of the decedents estate.

The executor or the administrator performs the following duties:

  • Obtains the decedents original will
  • If necessary, hires a probate attorney
  • Initiates and manages the probate process
  • Cancels credit cards
  • Notifies government entities of the decedents death
  • Manages assets

In many situations, the executor oversees probate, while a probate lawyer performs the bulk of the work.

If probate proceedings are unnecessary, the family of the decedent chooses an informal estate representative to pay debts and to distribute the property. Usually the estate representative is a family member or a close friend of the decedent.

What happens during the probate process?

Because probate involves court costs and attorney fees, avoiding probate will save time and money. The probate process usually takes between six months to a year. The executor of the will or a court-appointed administrator will handle probate, and, if necessary, hire a probate attorney. The executor or the administrator is responsible for filing the appropriate paperwork with the probate court after the decedents death.

During probate, the following occurs: the probate court receives a copy of the decedents will, probate assets are identified and inventoried, contact is made with heirs, beneficiaries, and creditors, and debts and taxes are paid. The last step in the probate process is the distribution of probate assets. In some situations, the executor may have to sell assets, such as real estate and securities, to pay outstanding debts or to make cash bequests specified by the will.

What are my options for avoiding probate?

If property qualifies for a states exemption or a simplified probate process, probate is inapplicable and it is unnecessary to devise methods to avoid probate. If, on the other hand, an estate will be subject to probate, there are some effective methods of avoiding probate.

  • Revocable Living Trusts:

    Creating a living trust is one of the most popular ways of probate avoidance. The grantor, or the living owner, transfers title to property to a trust. Typically, the grantor of the living trust is also the trustee. The trustee manages the property and retains control over the property until their death. The successor trustee then transfers the property to the beneficiaries named in the trust.

  • Joint Tenancy and Tenancy by the Entirety:

    A joint tenancy allows people to share property equally. When one owner dies, the surviving co-owner automatically inherits the property through the right of survivorship. Tenancy by the entirety is similar to a joint tenancy, but it only applies to married couples, and in a few states, to same-sex couples registered with the state. In a tenancy by the entirety, the owners share interest in property. When one owner dies, the surviving owner automatically receives the entire interest in the property.

  • Naming a Beneficiary:

    The owner of an account can designate a person to inherit it upon their death. While the owner retains control while alive, the property transfers to the named beneficiary upon the owners death. In many states, naming a beneficiary is available for pay-on-death bank accounts, transfer-on-death securities, and in a few states, it is possible to create transfer-on-death deeds for real estate and transfer-on-death vehicle registration.

Free Consultation with Utah Probate Lawyer

When you need a probate lawyer on your side, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Top 10 Mistakes to Avoid in Your Divorce Case

Here are the top 10 mistakes you absolutely must avoid when you are in a divorce case.

Becoming a Financial Victim

The biggest mistake divorcing spouses can make is being in the dark about finances. If your spouse has always handled all of the financial decisions in your household and you don’t have any information about you and your spouse’s income and assets, your spouse will have an unfair advantage over you when it comes time to settle the financial issues in your divorce.

Top 10 Mistakes to Avoid in Your Divorce Case

If you suspect your spouse is planning a divorce, get as much information as you can now. Make copies of important financial records such as account statements (eg., savings, brokerage, and retirement) and all other data that relates to your marital lifestyle (eg., checking accounts, charge card statements, tax returns).

If you believe your spouse may liquidate (sell or transfer to cash) assets or retitle marital assets without your consent, notify the holder of the asset or property in writing and get a restraining order from the court. Watch out for any cash held in joint checking and brokerage accounts, and the cash value of life insurance policies. If your spouse uses or moves assets without your knowledge, you may have to hire legal and forensic accounting experts to help you locate and value the assets.

Not Considering Mediation

If you and your spouse can work together to reach a fair settlement on most or all of the issues in your divorce (eg., child custody, child support, alimony, and property division), choosing mediation to resolve your divorce case may save thousands of dollars in legal fees and emotional aggravation. The mediation process involves a neutral third-party mediator (an experienced family law attorney trained in mediation) that meets with the divorcing couple and helps them reach an agreement on the issues in their divorce. Mediation is completely voluntary; the mediator will not act as a judge, or insist on any particular outcome or agreement.

Mediation also provides divorcing couples a lot of flexibility, in terms of making their own decisions about what works best for their family, compared with the traditional adversarial legal process, which involves a court trial where a judge makes all the decisions.

Mediation, however, is not appropriate for all couples. For example, if one spouse is hiding assets or income, and refuses to come clean, you may have to head to court where a judge can order your spouse to comply. Or, if one spouse is unwilling to compromise, mediation probably won’t work.

Hiring a Combative Lawyer to Punish Your Spouse

This is a very bad idea for two reasons. First, except in extremely egregious cases, most courts won’t punish your spouse financially for being a bad person.

Second, hiring an attorney to punish your spouse will cost you because your attorney will need to increase the number of hours spent on your case. Increased attorney hours means higher divorce costs, and higher divorce costs means there will be fewer assets and cash left for you and your family. Try to take the emotion out of your divorce, and treat your case as a business arrangement. The best revenge is to live well after the divorce is over.

Failing to Recognize Your Common Enemy – the I.R.S.

Work together with a divorce financial planner or tax accountant to minimize the total taxes you and your spouse will pay during separation and after divorce; you can share the money you save. Don’t forget that both spouses are liable for taxes due as a result of audits on joint returns, so it’s usually in your best interest to work together and minimize possible liabilities. If you’re facing complicated tax issues in your divorce, it’s best to consult with an experienced family law attorney and an accountant.

Not Producing an Accurate Budget

Divorcing spouses usually underestimate living expenses when they produce their initial budget for temporary alimony (also referred to as “maintenance”), and later find that they aren’t able to cover all of their bills. Use a financial professional to help you produce an accurate and complete budget.

Disregarding the Impact of Taxes in a Divorce Settlement

It’s important to remember that after the divorce is final, you may get taxed on the marital assets you received through your settlement. Say your spouse handles all the investments and offers to split them 50/50. Sounds good, right? The only way to know if you’re getting a fair deal is to determine the value of the investments on an after-tax basis, then decide if you like the deal. Again, you should speak with a tax professional about the impact of any proposed property division before you agree to it.

Failure to Evaluate Settlement Proposals

If you’re trying to decide whether your spouse’s proposed divorce settlement is fair and workable, you should try to figure out how the settlement will impact your finances in the years ahead. There are many factors to consider, including assets, incomes, living expenses, inflation, alimony, child support, taxes, retirement plans, investments, medical expenses and health insurance costs, and child-related expenses such as education.

There are specialized divorce computer models that produce comprehensive and realistic analyses of your post-divorce lifestyle. You should speak with a local divorce attorney or financial planner that specializes in divorce for help analyzing any proposed financial settlement.

Being Emotionally Attached to Assets in Divorce Negotiations

The marital residence, the pension you earned, a painting purchased during your marriage – these assets often bring an emotionally charged debate to divorce negotiations, which can impair good decision-making. Often, divorcing spouses that are attached to the family home don’t realize that they can’t really afford. Yet, they fight tooth and nail to keep it, sometimes at the expense of retirement planning.

However, the real estate market crash has made it abundantly clear that homes have a very low return on investment and, in some cases, have a negative return; many houses today are still underwater, and couples have had to walk away from their homes and the hard-earned money they invested.

In addition, a home is a major cash expense (eg., mortgage payments, property taxes, repairs, and utilities). Let go of any emotional attachments you may have. During your divorce and settlement negotiations, your main focus should always be on how to maximize your finances by making sure you’ll have enough cash for living expenses after your divorce and in retirement.

Over-using Your Divorce Lawyer

Divorce attorneys generally charge $200- $300 per hour, and partners in well-known New York City, Los Angeles, and San Francisco family law firms typically charge $450 per hour. These attorneys can provide advice on divorce-related issues, but they are not therapists or certified financial planners. If you need to talk through the emotional aspects of your divorce, or need career counseling or financial analysis, save money on additional attorney’s fees and be sure to talk to the right professionals, such as a licensed therapist, vocational expert, or a financial planner.

Beware of Settlement Offers That Look Too Good

Both spouses and children must make compromises in their life styles post-divorce. A settlement that does not give one spouse enough money to live on is likely to go into default in the future. Be fair, but verify the numbers. Get payments up front whenever possible, even if you get less in total. Try to secure all payments with assets and insurance. It may be worth speaking to a family law attorney who can review a settlement offer and make sure your rights are fully protected.

Disregarding the Long Term Impact of Inflation

The effects of inflation on the cost of a child’s college education, or on retirement, 15 years in the future can be dramatic. The “Rule of 72” is a simple way to judge the impact of inflation. For example, if the inflation rate is 3%, the “Rule of 72” means that prices will double in 24 years (72/3=24). College costs at 5% inflation will double in 14.4 years (72/5=14.4). Be sure to work inflation into your settlement negotiations so you can cover the true costs of future financial expenses.

Failing to Consider Your Spouse’s Eligibility for Social Security Benefits

If a couple is married for 10 years or longer, a non-working or lower-earning spouse is entitled to derivative social security benefits on the higher earning spouse’s (“worker spouse”) record. These derivative benefits do not impact or lower the worker spouse’s social security payments, which is why it’s so ironic that the average length of marriage for people who get divorced is about nine and a half years. Waiting just another six months may guarantee increased retirement options with no reduction in payments.

Forgetting to Update Estate Documents

After divorce, many people forget to change the beneficiaries on their life insurance policies, IRAs, and will(s), so the estates they wanted to leave to their children, new partner, or favorite charity may go instead to their ex-spouse. If you’re going through a divorce, talk to a family law attorney to find out what changes you can make to your estate plan during and/or post-divorce.

Failure to Adequately Insure the Divorce Settlement

Your ex-spouse’s premature death or disability can be devastating and may result in a loss of alimony, child support, college tuition, or property settlement payments. Life and disability insurance policies can guarantee that these payments will continue despite an unexpected loss or injury.

Failure to Develop a Post-Divorce Financial Plan

One indisputable fact of divorce is that two households cost more to operate than one. Many divorcing spouses fail to realize that their divorce settlement must last a significant amount of time: perhaps even the rest of their lives. Financial planning can help people transition from a married to single lifestyle by prioritizing financial goals, developing realistic expectations, and producing sound plans for the assignment and division of financial resources.

Free Consultation with a Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Revocable Living Trusts

If you’re like a lot of people, you’ve probably spent more time planning your next vacation than deciding how to transfer your estate. But without proper estate planning, much of what you worked for during your lifetime could be distributed to unintended beneficiaries or lost to unnecessary complications.

Revocable Living Trusts

A revocable living trust is a popular estate planning tool that lets you control how your property is handled during your life and after death. It also helps avoid probate and transfers your property quickly and privately.

The trust is a legal document that partially replaces a will. You transfer assets, such as your house, bank accounts, or stocks, into the trust’s name. A trustee, usually you or someone you have confidence in, manages the property for the benefit of you or your family. It’s called a living trust because it’s created when you are alive. And since it’s revocable, you can change or cancel the trust at any time before your death.

Benefits and Limitations of a Living Trusts

Creating a trust is a personal decision based on your own unique circumstances. A living trust has many benefits, but it may not do everything you need. Let’s look at what a revocable living trust can and can’t do for you:

Benefits of a Living Trust

  • Provide for You During Incapacity: A properly executed living trust can take care of you if you become unable to care for yourself. This avoids the delay or a court-ordered guardianship. This feature highlights the importance of adequately funding your trust when its set up. Be sure to name an alternate trustee to manage the trust if you become unable to care for yourself.
  • Avoid Probate: Probate is a legal process that transfers property after a person’s death. By transferring legal title to the trust, the property is no longer part of your estate. It’s already been transferred.
  • Protect Privacy: There’s typically no public record required, unlike with a will. Be aware, if property is placed in the trust after your death, then there may appear in a public record.
  • Greater Control: If you want to leave assets to a child or someone who may have trouble managing money, a living trust gives you control over the manner and timing of payments. For example, you can leave money to your 12-year-old grand-daughter to pay for college or to help with a down-payment on her first house.
  • Easy to Create and Change: For most simple estates, a living trust has fewer legal formalities than a will, making it easier to create and change. Each state controls the rules for living trusts, so research your local trust laws.
  • Hold Property from Other States: If you own property in other states, a living trust will protect your heirs from needing to administer out-of-state probate procedures.

Limitations of a Living Trust

  • Immediate Tax Benefit: Since you retain the right to use and enjoy the property, in the eyes of tax authorities, it remains your taxable property. If you receive income from the trust, you must report the income on your tax return.
  • Cost Savings: Revocable Living trusts can be expensive to set up, plus there are annual maintenance fees. There may be some cost savings by eliminating probate costs and other incidental fees.
  • No Creditor Protection: You create a trust to keep control over the distribution of your property. Although some trusts can protect your assets from creditors, a revocable living trust cannot. Since this is a revocable trust, you can terminate it at will. So a creditor can force the termination to get the assets.

Start on Your Living Trust Now

In some circumstances, it may be possible for you draft a revocable trust on your own. Make a document stating the trust is created to hold property for the benefit of yourself or someone you specify. You can name yourself as the trustee, but be sure to select an alternate trustee.

Next, list the assets being placed in the trust. Remember, the trust becomes the owner of the property you transfer. That’s why you must change the name on the title to that of the trust. Rest assured, you keep the right to manage your property in a living trust, even if you’re not the trustee. You have the right to change the terms of the trust, remove the trustee, or the property, at any time.

When you’re finished writing your trust, sign it and have it notarized. You can fund your trust using a deed or standard transfer document to transfer the property into the trustee’s name, per the trust’s terms. It’s important to understand the laws in your state to properly form and fund your trust. Errors can make your trust invalid and without any legal effect. If you have any concerns, consult with a lawyer or other estate planning professional.

Free Consultation with an Estate Planning Lawyer

If you are here, you may need help with an estate plan. If so, please call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506