Assisting clients with Utah estate planning, tax planning, and family business issues

Estate Planning FAQ

1.   What is estate planning?
   • Your estate is comprised of everything you own – your home, vehicles, bank accounts, retirement accounts, investments, furniture, and personal possessions.  Regardless of the size of your estate, you will want to control how your things are distributed to people or organizations.  To ensure your wishes are carried out, you will need to provide instructions stating who will receive something, what they are going to receive, and when they are going to receive it.  This is estate planning.  A good estate plan should also include naming a guardian for your minor children, instructing about your health care, protecting assets from creditors, minimizing taxes and court costs, planning for government benefits and disabled loved ones, implementing a business succession plan, obtaining appropriate life insurance, etc.

2.   What happens when you die without a will or trust?
   • If you die intestate (i.e., without a will or trust), state law determines your estate plan.

3.   If you die without a will, does the state get your property? 
   • Generally, no.  The State of Utah will only take your property if there are no qualifying relatives (i.e., spouse, children, parents, siblings, etc.).

4.   What does a will do?
   • Generally, a will provides for the distribution of certain property owned by you at the time of your death in the manner chosen by you.  Your will does not govern the distribution of property that transfers by operation of law (i.e., joint tenancy or beneficiary designation, etc.).  Assets that generally pass by operation of law include property titled in joint tenancy, pay-on-death accounts, retirement accounts, and life insurance.
   • In addition to directing the distribution of property, a will can designate a guardian for your minor children, thereby minimizing court involvement in the care of your child.

5.   What is a will unable to do?
   • A will does not govern the transfer of certain types of assets, called non-probate property, which by operation of law (i.e., title or beneficiary designation) passes to someone other than your estate on your death.  For example, real property or other assets owned in joint tenancy automatically transfer to the surviving owner.  Similarly, a retirement account or insurance policy payable to a named beneficiary, other than your estate, passes to the named beneficiary regardless of the terms of your will.

6.   What is a revocable living trust?
   • While living:
     • The term “living trust” generally refers to a trust that is created during your lifetime.  A living trust can help you manage your assets should you become ill, disabled, or challenged by the symptoms of aging.  A living trust can avoid the need to have a court-appointed conservator manage your assets on your behalf or a minor child.  Most living trusts are “revocable,” allowing you to amend or revoke the trust whenever you wish to do so.
   • At death:
     • A revocable living trust allows you to avoid probate at your death because trust assets will be transferred pursuant to the terms of the trust.  Since assets held by a revocable living trust are not subject to probate jurisdiction, your heirs will incur substantially less in estate administration costs, and your assets will be accessible to your heirs without the need to await probate proceedings.  The assets held in the trust will be managed and distributed pursuant to the provisions of the trust.
     • A revocable living trust may also allow you to eliminate the need for court supervision of assets that will be used for your minor children at your death.

7.   What is probate?
   • Probate is a court-supervised process of administering your estate and transferring your property at death pursuant to the terms of your will.  It is the legal process that gives recognition to your will and appoints a personal representative to administer your estate and distribute your assets.  The probate court only has jurisdiction over certain assets.  Assets that are not subject to probate jurisdiction are assets that pass by operation of law (i.e., title or beneficiary designation).

8.   Why do you want to avoid probate?
   • The probate process can be time consuming and result in your property being tied up for months, and results in court filing costs, personal representative fees, and attorney fees.
   • Probate is a public process and will allow anyone to view the debts and assets of your estate.
   • Probate assets distributed to minors must be made to a minor’s court-appointed conservator subject to annual accounting to the court.  Contrarily, assets held in trust for a minor can be managed freely by the trustee of the trust for the minor’s benefit without court involvement.

9.   What is an advanced healthcare directive?
   • An advanced healthcare directive is a document that expresses how you want to be treated in the event you cannot make medical decisions on your own behalf and names an agent to make healthcare decisions in accordance with your wishes.
   • Physicians prefer these documents because they can understand your intentions and know whose direction to follow in the event your family disagrees with the course of medical treatment.

10.   What is a power of attorney?
    • A power of attorney gives one or more persons the power to act on your behalf as your agent.  The power may be limited to a particular activity, such as closing the sale of your home or be general in its application.  The power may give temporary or permanent authority to act on your behalf.  The power may take effect immediately or only upon the occurrence of a future event, usually a determination that you are unable to act for yourself due to mental or physical disability.  A power of attorney may be revoked but should be done by means of a written notice of revocation to the person named to act for you.

When you need a Utah estate planning law firm

Primary Practice Contact: John E. Gates

Our Utah estate planning lawyers are ready to help.  For more information about the services SCM provides in this area, contact John E. Gates in our Salt Lake City office or E. Scott Awerkamp in our St. George office.

Disclaimer
This site is provided as a service by Snow Christensen & Martineau.  While the information on this site is about legal issues, it is not legal advice or legal representation.  Because of the rapidly changing nature of the law, we make no warranty or guarantee of the accuracy or reliability of the information contained herein.