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Use the links below for basic information on the following topics:
A Will (sometimes called a Last Will and Testament) allows you to do three main things: (1) name an Executor (or “personal representative”) for your estate; (2) name a guardian (or guardians) for your minor child(ren) if applicable; and (3) specify who should inherit from you. Wills can simplify the probate process, but Wills do not avoid probate.
For more information on Wills and probate, contact the attorney.
Not really—for a will to be effective at transferring ownership of estate assets (such as a house, car, etc.), it must first be filed, accepted (or “authenticated”) by a court, and probated (following proper probate procedure). A will is not filed with a court until after the Testator (person who signed the will) dies. Probate procedure ensures that all appropriate people receive notice of the will and are given an opportunity to be heard before property is reassigned by the court or administered by the estate representative.
For more information or assistance filing or probating a will, please contact me.
In short – trusts avoid probate; wills do not.
Probate is the court process required to carry out a will, including appointing an estate fiduciary (often called a personal or estate representative) and reassigning property to heirs or recipients named in a will.
Property held in trust does not require court procedure; rather, a trustee is given authority under the governing trust documents (and state laws) to manage and distribute trust assets without court orders. Trusts require more upfront effort than wills, but by avoiding probate, trusts can save time, cost, and preserve privacy if set up and maintained properly. Trusts can also govern the method and timing of distributions and can address other unique needs.
For more information or assistance with trusts, contact the attorney.
A trust is a declaration or agreement regarding how property is to be owned and distributed to beneficiaries. A trustee is given authority to carry out the instructions of the trust without the need for probate court or attorneys.
A living trust is created while the the trust maker (called the “settlor”) is living (rather than at death, such as through a will).
If a living trust is revocable, it can be amended, revoked, or restated by the settlor while the settlor is competent and living.
For more information or assistance with trusts, contact the attorney.
Any competent adult (and certain institutions) can serve as a trustee, but there are a few important things to keep in mind when choosing a trustee.
A trustee is a person authorized to administer trust assets. A trustee can act without a court or attorney; therefore, a trustee should be both capable and trustworthy (hence the name “trust”). A trustee is a fiduciary and must understand and follow the trust document and related laws.
Trustees can be family members, friends, or professionals. With a standard revocable living trust, trust makers (called settlors) often act as their own trustees during their lifetime and then pass the authority to a co-trustee and/or successor trustee when the settlors die or become incapacitated.
Being a trustee can be time-consuming and can invite criticism and demands from family members and others. Settlors should consider these and other aspects carefully when selecting a trustee.
For more information or assistance with trusts, contact the attorney.
Trusts require upfront steps to be effective at death.
A trust is like an empty box or pair of hands; to be effective, a trust must be properly funded (i.e., property must be transferred into the trust or the hands of the trustee), so it can be distributed as directed in the document.
Non-titled assets (like household goods, furniture, and personal belongings) are often transferred (or “assigned”) to the trust by the trust documents themselves.
Titled assets (like a house, car, or financial account) must be re-titled in the name of the trust (or trustee). For example, a new house deed, vehicle title, or bank account ownership is updated to show the trust as the new owner or beneficiary. This way, any successor trustee has authority to manage trust assets without court order.
For more information or assistance with trusts, contact the attorney.
A living will is a declaration of a person’s end-of-life wishes. Often referred to or included in an “advance healthcare directive,” it is a patient’s instructions (prepared in advance) regarding medical and life-sustaining treatment in emergency or terminal situations. The declaration is only used if the patient is unable to make and communicate such decisions when needed.
A living will or advance directive is often included in a healthcare power of attorney.
For more information and assistance wills, living wills / advance directives, or powers of attorney, contact me.
A power of attorney allows a principal (person granting the power of attorney) to authorize an agent (sometimes called an “attorney-in-fact”) to act for the principal for specific purposes.
A healthcare power of attorney allows an agent to make medical decisions for the principal.
A general power of attorney authorizes an agent to manage finances, property, and other legal matters for the principal.
If a power of attorney is durable, this means the power remains effective when a principal is incapacitated (a non-durable power ends when the principal becomes incapacitated).
All powers of attorney end when the principal dies.
For additional information or assistance with powers of attorney (in-fact), contact the attorney (at-law).
If a person dies without a will, or no executor or personal representative is named in the will, or the named executor(s) is(are) unable or unwilling to serve, the court chooses a replacement. Utah law specifies the priority order the court follows when making these considerations.
To avoid the above, talk with an attorney about preparing or amending your will.
Most people don’t call an attorney when they’re having a good day. But estate planning can be different. Instead of dealing with problems after they happen, I get to work with people to solve problems before they would have happened!
I love working with people who are thinking ahead and who want the best for their families.
Most of us don’t want to think or talk about death. But I have found that those who are are willing to have hard conversations now have less fear and worry for the future.
And it can be fun to write the future! I love getting to know my clients and their families — and to explore creative and custom solutions for their goals.
When my clients leave my office with signed documents in hand, I love seeing their smiles and sighs of relief (as if a weight is lifted from their shoulders) because they have a plan in place.
I would love to work with you. Call me today for a brief initial phone call or to schedule a formal consultation.
Most probate proceedings take about 5-10 months, but it can be shorter or longer (depending on the type of proceeding, property, and parties involved).
Often the most time-consuming aspects of probate are the waiting periods related to notice and court hearings. Much can be done during those waiting periods to speed up the process, but the process can take longer if any party objects.
Time periods are important in any legal proceeding; in probate, certain time limits permit or bar certain actions.
If you have questions about probate (with or without a Will), you are encouraged to get legal advice as early as you can.
For assistance or consultation, contact the attorney.
It depends. Informal proceedings can cost as low as $1,500 to $3,000, while more complicated proceedings can be far greater. The cost depends on the type of proceeding, the complexity of the estate, and unity of the parties.
Often the most expensive aspects of probate are the conflicts that arise between parties. Much can be done to reduce overall costs if the parties address potential issues early on.
For consultation or assistance with probate, contact me.
No. Probate is the court process for transferring assets that are “stuck” in a deceased person’s name to those entitled (such as a surviving spouse, children, and/or those named in a will). Some assets transfer at death without the need for probate court procedure (such as through a revocable trust, to a named beneficiary, or to a joint owner with survivorship rights). But creditors and heirs may still have claim to those assets—whether they are reassigned through a probate proceeding or by non-judicial means.
Some planning methods (such as irrevocable trusts) are designed to protect assets from creditors. These methods are much like an early ‘gift’ to an estate planning entity; and once the gift is made, the giver no longer has ownership or control of the assets placed in the irrevocable trust. This method is best used well in advance of a person’s decline in health or need for long-term care assistance.
For assistance or consultation regarding estate planning and asset protection options, contact the office.
No—trusts are a method of holding and distributing assets, and there is no minimum requirement of assets for setting up a trust.
Some professional trustees require trusts to have a certain minimum amount of assets before they will agree to be the trustee, but professional trustees are not required.
And in certain small estates, some assets can be administered by a type of affidavit (without a will or a trust), but this cannot be done with real estate.
For consultation or assistance with trust options and requirements, contact the office.
No—revocable living trusts are not designed for asset protection or Medicaid planning/qualification.
Asset protection and Medicaid planning require careful steps to essentially ‘give’ away assets through an estate distribution mechanism (like an irrevocable trust or business entity). But it must be done right to truly be out of the control of the giver and outside look-back periods; otherwise, creditors (including Medicaid) may be able to reach the assets.
For more information or assistance, contact the office or another qualified professional who focuses in this area.
Title ownership and loan obligations are separate concepts; they do not automatically transfer together.
For example, when a homeowner dies and there is still a mortgage, a surviving family member may receive title ownership to the house (through one of several transfer methods), but the new ‘owner’ still must choose to take over or pay the loan.
Assets may need to be sold to pay liabilities (either through probate or by a trustee). Some creditors (such as Medicaid) may also be able to go after assets transferred outside a will or trust (such as through pay-on-death / transfer-on-death to a named beneficiary, joint ownership, etc.).
To schedule an initial planning meeting to discuss planning options, contact me.
I often say, ‘It can be simple for you or simple for those who survive you—pick one.’ That may be an overgeneralization, but careful planning takes work.
The simplest approach for you is to do nothing (or possibly prepare a will and other basic documents), and then just let everything go through probate—leaving the administrative burden and cost on surviving family.
On the other hand, careful planning and preparation can streamline things for those who survive you—allowing them to access and transfer property quickly and (without court procedure). But careful planning takes time and effort, so you need to decide what you want.
In any case, it is crucial you understand your options, so you know what kind of ‘simple’ you are choosing.
To schedule an initial planning meeting, where we will discuss the various planning methods, contact me today.
St. George, UT 84770
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