Estate Planning

Primary Practice Contact: John E. Gates

Assisting clients with estate and tax planning, especially  when family businesses are at stake

Our Salt Lake City and St. George estate planning lawyers help ensure that the testamentary wishes of clients will be followed and provide tax-advantaged counsel in matters concerning wills, trusts, estate planning, family business succession, and gift plans. 

We help clients plan for the ultimate distribution of their assets in an organized and clear manner to minimize potential will and estate contests. When planning for the use and distribution of assets, we help clients assess family needs (including the disposition of a business, if applicable), and their long-term financial goals. Each estate plan must be customized to unique goals. To reach these goals, we assist with gift plans, estate and trust administration, wills, trusts, gift and estate tax preparation, estate and trust disputes, and other fiduciary issues.

If an estate goes into probate, we prepare needed court documents and accountings. We advise and direct personal representatives and trustees in their fiduciary capacities. In all kinds of estate-related disputes, we are experienced in negotiation, mediation, and arbitration, as well as litigation and trial.

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 cannot take it with you when you die.  When you die – which will happen to all of us – you will want to control how your things are given 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.  However, 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.
  1. What happens when you die without a will or trust?
    • If you die intestate (i.e. without a will or trust), state law will determine who receives your property.  Generally, Utah law provides that property will be distributed to your spouse and children, and if none to other family members.  A will and or trust allows you to alter Utah’s default rules.
  1. 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.).
  1. What does a will do?
    • Generally, a will provides for the distribution of certain property owned by you at the time of your death and disposes of such property in the manner chosen by you.  Your will does not govern the distribution of property that transfers by operation of law (i.e. title or beneficiary designation).  Assets that generally pass by operation of law include property titled in joint names with rights of survivorship, payable on death accounts, retirement accounts, and life insurance. Such assets pass automatically at death.
    • In addition to directing the distribution of property, a will can designate a guardian for your minor children if you are the surviving parent, thereby minimizing court involvement in the care of your child.
  1. 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 with rights of survivorship automatically transfer to the surviving owner.  Similarly, a retirement account or insurance policy payable to a named beneficiary passes to the named beneficiary regardless of the terms of your will.
  1. 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.  Most living trusts are “revocable” allowing you to amend or revoke the trust whenever you desire to do so.
    • At death:
      • A revocable living trust allows you to avoid probate at your death because trust assets will be transferred via operation of law (i.e. 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 lengthy 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.
      • At your death, assets held in a revocable living trust are generally beyond the reach of your heirs’ creditors.
  1. 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 an executor (i.e. 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).
  1. Why do you want to avoid probate?
    • Costs:
      • The probate process can be time-consuming and result in your property being tied up for months.  This will result in your heirs waiting to access your property until the conclusion of probate.
    • Time:
      • Probate will result in court filing costs, executor fees, and attorney fees.  Avoiding probate can eliminate such costs and fees.
    • Public:
      • Probate is a public process and will allow anyone to view the debts and asset of your estate.
    • Asset protection:
      • Probate asset distributed to heirs will not be entitled to the protections provided to assets held in trust.  An heir’s creditors can reach assets distributed to an heir through probate.
    • Inheritances for minors:
      • Probate assets distributed to minors must be made to a minor’s court appointed conservator.  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.
  1. What is a living will?
    • A living will, or “advanced directive”, is a document that expresses how you want to be treated in the event you cannot make medical decisions on your own behalf.  A living will permits you to express whether (1) you wish to be given life-sustaining treatments, (2) you desire not to receive care for prolonging life, or (3) you want to name an agent to make health care decisions on your behalf.
    • By preparing a living will, you are ensuring that your medical treatment preferences are known.  Physicians prefer these documents because they can understand your intentions and know whose direction to follow in the event your family disagrees to the course of medical treatment.
  1. 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.
  1. Why should I avoid using LegalZoom to prepare my estate plan?
    • Using do-it-yourself (“DIY”) software tools, such as LegalZoom, to create your own estate plan is risky and likely a costly substitute for an experienced estate planning attorney.  DIY estate planning software tools have resulted in innumerable undesired results for individuals.  For example, in one case, an individual failed to follow the statutory formalities for executing a will and the court found that the will was not valid.  As such, the family spent thousands of dollars in legal expenses to litigate how the estate assets should be distributed.  In another case, an individual used DIY estate planning software and left his home to his wife and four grown children.  The only problem was that the documents didn’t actually give the wife the option to remain in the house for the rest of her life, as the deceased husband desired, and the children sought to remove the wife from the home.  As a final example, an individual’s DIY estate documents failed to include a “residuary clause” (i.e. the clause that directs the distribution of all remaining estate property).  As such, all property that would have been subject to a residuary provision was required to be distributed pursuant to state law, which was contrary to the wishes of the deceased individual.  Case law is riddled with other examples where DIY estate planning software had disastrous results.
    • Most attorneys provide clients with a complete set of estate planning documents (wills, trust, powers of attorney, and advanced directives) for an affordable price and generally on a flat fee basis. When using an experienced attorney, you will have counsel available to answer your questions, interpret legal provisions, navigate the complexities of tax, probate, and trust law, and assist with trust funding.  Ultimately, an attorney will save you money and provide you with an estate plan specifically crafted to meet your specific needs.

When you need an estate planning law firm in Utah

Our 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 information contained herein.

Practice Contacts

John E. Gates

E. Scott Awerkamp

Michael R. Carlston

Dennis V. Dahle