***A SUMMARY OF BASIC UTAH WILL INFORMATION***

A will is formal, written instructions of a person’s desire as to giving his or her property upon death to specific people, businesses or charities.

To be effective, your will must be in writing, and it must be signed by you.In addition to being in writing and being signed, a will must be signed by two witnesses. These witnesses must have seen you sign the will. It is important that these formalities be carefully observed.

WARNING: If you make a will and later get divorced or get married, part or all of your will may not be any good.It is vital to talk with your attorney about your will before getting married or divorced.

First, a will indicates who should get a person’s assets when he or she dies.If you want your stock in General Motors and your grandfather clock to be given to your niece Priscilla, you put that specific instruction into a will.Second, wills can include instructions as to a person’s wishes for a funeral and final disposition.Lastly, a will can name the person you want to care for your children in the event you and your spouse both die before your children reach age 18.

Any person over 18 can sign a will.In most instances, if you want to direct the distribution of your assets upon your death, you should write a will.If children or other heirs are at all likely to argue over your property after your death, it is even more important to have a will or an estate plan.

A will enables you to plan the distribution of your estate to provide for the welfare of your spouse, children, relatives, friends, and charities.This type of planning prevents later disputes among heirs and usually guarantees that your property will pass in the manner you desire.A will can determine when a gift is to be made, how and when money is to be released, and under what circumstances.

When a person dies intestate (that is, without a will or trust), property is distributed in accordance with state law, basically in sequence to the next of kin: spouse, children, parents, and so on.

If you do not have a will after your death, the court will divide your property according to Utah laws.For example, if you are married and have no children, property that is in your name alone will go to your spouse. This is also true if you are married and have children, provided all of your children are born of your current marriage. If you are married and have children from a prior marriage, one-half of this property will go to your spouse. The other half will go to all of your children, whether or not they are from the prior marriage. If you do not have a living spouse or children, your property may go to your grandchildren, your parents, or your brothers and sisters.If you have a child under 18, the court may choose someone to take care of the property for that child.

If you do not leave a will, the court distributes your estate to your relatives in a certain order set out by law.The law will treat all your property the same.There are no special provisions for heirlooms, jewelry, or the family business.If you do not name a guardian in your will or in a separate document and if there is no surviving parent, the court will appoint a guardian for your minor children.This may not be the person you or your spouse would have wished.

That is up to you.It should be in a secure place: a safe, in a closet, a drawer, filed with other important documents, in a fire-proof strong box, etc.Make sure someone else knows where it is stored and has access to that location.

A commercial safe deposit box may not be the best place for it if no one else has access to it.If you are the only person that has access to the safe deposit box, upon your death no one else can get into the box absent a court order.

You can change a will at any time as long as you are of sound mind, that is, you know what you are doing.You may want to change your will for many reasons, such as marriage, divorce, or birth of children or grandchildren.However, specific legal requirements must be met for a revocation or changes to be effective.

An amendment to the will is normally referred to as a “codicil,” and must be completed with the same legal formalities as the will.

You do not have to have a will, but experience has proven the wisdom of those who have carefully considered what they want to happen to their estate after they die.A carefully drafted will can assure that your property will go where you wish it to go.You can be certain that those who will be faced with settling your estate can do the job as efficiently as possible.If you do not have a will, the Utah legislature has decided who will inherit your property.

Most likely it does not.A will doesn’t cover some kinds of property at all:

(1) Joint tenancy property: this refers to property such as a house, car, or checking and savings accounts, held by two or more people as “joint tenants with right of survivorship.”When one owner dies, all the property automatically belongs to the other owner(s) and is not affected by the will.In the case of joint tenancy, the owners need not be husband and wife.

(2) Life insurance: the money proceeds from your life insurance policy will go directly to the person, trust, or estate named as the beneficiary.Thus, life insurance policies generally are not affected by your will.

(3) Savings bonds: certain United States savings bonds are not governed by your will, but go directly to the person listed on the front of the bond.

(4) Payable-On-Death Accounts: similar to a life insurance policy, payable-on-death accounts transfer to a designated beneficiary upon the account-holder’s death.Payable-on-death accounts are generally not affected by your will.

Your attorney.A will is only valid if it complies with requirements established by the law.A will that you make yourself, or one that you do on a legal form you buy at the stationary store, may cause a lot of expense and delay after you die.A poorly prepared will may mean that your property will not go to the persons you want to receive it.An attorney can give you good advice on how your will should be prepared.

You can legally prepare your own will.Your will may be handwritten.This type of a will is called a “holographic will.” In Utah your handwritten will must be signed by you as must the material provisions of the will.No witness is needed for a handwritten will. However, because the laws which affect wills are very complex, it is usually advisable to have an attorney prepare your will.This need not cost a great deal for a simple will.If your estate is large, it may well be worth the cost of having a more complex will.

Your will is valid until you change it, destroy it, or write a new one.

A living will (also known as an advance directive) sets out an individual’s desire, or lack thereof, for end-of-life care measures should he or she be unable to otherwise communicate such wishes.In Utah, a living will applies only to those who are terminally ill or in a persistent vegetative state.A living will puts your wishes into writing as to whether you want heroic measures to be used when you are terminally ill and unable to speak for yourself.

A medical power of attorney allows an individual to name a person or persons to represent them in making medical decisions when the individual is unable to speak for him or herself.If you go into a coma and cannot tell the doctor what you want, the medical power of attorney designates a person to give the doctor instructions on your behalf.

A financial power of attorney gives another person authority to handle your financial matters presently or in the future.For example, if you develop Alzheimer’s disease and cannot manage your financial affairs, a financial power of attorney designates a person to manage your assets.

Probate is a procedure by which the court determines who receives property and assets that were owned by a person who has died.

Often no probate is necessary when a person dies.If bank accounts or property are owned jointly with another person (often a spouse) with the right of survivorship, the surviving co-owner will automatically own this property at death.If a person dies leaving only minimal assets, such as personal belongings and household goods, these usually can be divided among heirs without supervision of the court.However, times when probate is necessary include: to collect debts owing to the deceased person; to clear title to land, stocks and bonds, or large bank or savings and loan accounts that were held in the name of the deceased person only, and to pass title to such assets to the heirs; to settle a dispute between people who each claim they are entitled to what the deceased person left behind; and to resolve any disputes as to whether the will is valid.

Probate can be started immediately after a person’s death.However, the estate cannot lawfully be closed until at least four months after the publication of the first notice to creditors.Although a partial distribution of the assets may be made before the estate is closed, usually six to nine months is the minimum time between opening of the probate and the final distribution.Probate may take longer if there are properties in the estate that must be sold or if there are complicated tax matters that need to be negotiated.

1.A personal representative is appointed by the court. The personal representative is generally someone named in the deceased person’s will.If the deceased person did not have a will, the personal representative (formerly called “executor” or “administrator”) is usually the spouse, child, or close relative of the deceased.If none of those persons are available or willing to act as personal representative, the court may appoint a bank, trust company, or attorney to act as personal representative.

2.If there is a will, it is proved and filed with the court.A will is proved by an affidavit of witnesses to the will.There must be two witnesses to the signing of a will.Each must sign as a witness in the presence of the person making the will and in the presence of each other.Each witness must be prepared to testify that at the time the will was signed, the maker of the will was of sound mind and knew what he or she was doing.If you have possession of the will of a person who has died, you are required by law to deliver it, within thirty days, to the personal representative or to a court.

3.The personal representative gathers together the assets of the estate and files an inventory with the court.The personal representative may sell assets of the estate if necessary to pay claims and expenses, and if the sale is not against the provisions of the will.

4.A notice to creditors is published in a local newspaper, telling creditors that they have four months in which to file any claim against the estate for debts that are owed to them by the deceased person.Additionally, the personal representative gives actual written notice to all known creditors and those who may be possible creditors.All claims presented within four months are paid before claims presented after the four month period. (This does not apply to mortgage loans and other debts that are secured by a security interest in property.)

5.The heirs and people named in the will are notified of the filing of the probate proceeding.

6.Debts owed to the deceased person are collected by the personal representative.

7.Any state or federal income tax returns and inheritance, gift, and estate tax returns are prepared by the personal representative, if necessary, and taxes that are owing are paid.

8.After approval by the court, the assets of the estate are delivered or paid over to the persons named in the will or to the heirs.

Probate is not complicated, but administration of an estate requires some experience.To achieve the desired result, probate must be handled with an understanding of the underlying legal principles.There are many potential tax traps and other pitfalls that an experienced probate attorney can help you avoid.Probate requires the preparation and filing of many legal documents.It may require one or more hearings in the court.

All the probate proceedings are subject to the jurisdiction of the court.However, the court will not supervise the day-to-day administration of the estate.The court will examine the will and the affidavits of the witnesses to assure that the will is valid.The court will check to determine that there are proper receipts filed for all expenditures from the estate during probate.The court will make certain that all taxes are paid.The court will check to see that the assets are distributed at the close of probate to those people who are supposed to receive them under the terms of the decedent’s will or by law.

Other than these matters, the only time the court will involve itself in the case of a probate is if a dispute arises over, for example, whether the will is valid, whether the personal representative has been doing his or her job, or whether a bill that is presented to the estate really should be paid or not.

The fee of the personal representative is fixed by statute, and it is a percentage of the value of the total estate.The fee of the lawyer must be approved by the court.The lawyer must show that the fee is reasonable with regard to the fair value of the services actually rendered.Extra fees may be approved by the court to the personal representative and to the lawyer if the estate is a complicated one requiring more work than usual for an estate that size.In addition, there are court filing fees to be paid, along with the cost of the legal notices published in a local newspaper, and any other necessary expenses.

Both federal and state law can impose a tax on your estate when you die. Taxes depend upon the size of your estate and who receives it.Currently, estates valued over $650,000.00 are subject to taxes; however, that amount is being changed by federal law.You should seek legal advice if you think your estate may be taxed upon your death.

Whether an estate is probated or not has no effect upon the taxes that must be paid.Probate and non-probate estates are both subject to state and federal death taxes.These taxes will only involve estates valued in the excess of $600,000.00.Estate taxes may be owing even though the estate is not probated.

If you are concerned about possible death taxes that might be owed when you die, your lawyer can tell you what they might be and how you may be able to set up your estate plan to minimize the taxes.

There are also state and federal fiduciary income taxes that may be payable only by the estate.This is based upon income to the estate and expenses paid by the estate during the time that the estate is being probated. These taxes are similar to state and federal personal income taxes.

Some people attempt to avoid estate taxes by giving away their property before death.There are complicated rules relating to gifts of property.Very often such gifts do not reduce the ultimate tax liability.Sometimes making a gift creates more problems than it solves.Care is required in any attempt to use gifts as an estate planning device.The guidance of a lawyer competent in the area of estate planning is recommended.

Estate planning involves finding the best way to give your property to your “beneficiaries” – the people you want to receive your money and other possessions when you die.Sound estate planning means your property will be put to the best possible use for your benefit during your lifetime and for your beneficiaries after your death.In some cases estate planning can reduce the taxes and other costs that must be paid when you pass on your property.

Estate planning is different for everyone.Among other things, the estate planning you need depends on whether you have a family and its size, the kinds and amounts of property you own, and what you want to accomplish.

The simplest estate planning device is a will.But, estate planning often means making decisions about the way you “hold title to” or own a house or other real estate, bank accounts, life insurance policies, pension and profit-sharing plans, stocks and bonds, and more.Estate planning might mean setting up one or more trusts.You can use any or all of these estate-planning devices to make sure your beneficiaries receive your property according to your wishes after your death.

Unless there is a written agreement between husband and wife prepared through the assistance of an attorney, you cannot totally exclude your spouse from your will.If you attempt to exclude your spouse from the will or the will does not leave a sufficient amount, then your spouse may elect to take against the will.This means he or she may take one-quarter of the estate regardless of what the will says.

There is no legal requirement that a parent must leave any property to a child.However, your will must name all of your children and specifically state that you are leaving nothing to a particular child or children.

No.In fact, it will probably make probate less costly. Your will can tell the court that your personal representative (executor) does not have to buy a surety bond.A will can speed up probate and can sometimes help you lower taxes and other expenses.

No.A husband and wife usually own real property (land and buildings) as “husband and wife.”This means when a spouse dies the surviving spouse owns all of the property.This also applies in the case of joint bank accounts or stock and bonds that are owned as “joint tenants with a right of survivorship.” Most married people own their automobiles as “joint tenants.”Joint ownership of certain kinds of property may be helpful.However, joint ownership will not direct how your estate is divided in the event of simultaneous death.Joint ownership of property can be coordinated with the provisions of your will.

Right of Survivorship is when two persons own property as tenants by the entirety (husband and wife) or as joint tenants with a right of survivorship. This means that they both own the property jointly.When one of the owners dies, the other one automatically inherits the entire property. Some people attempt to avoid probate by giving a survivorship interest in their property to one or more of their children.This should be done only after consulting a lawyer because it may have gift tax consequences, and it may mean that the property cannot be sold without the consent of everyone whose name appears in the title to the property.

No.Life insurance is just one of the many kinds of property you can leave behind after your death.Your life insurance is paid to the person you name in the policy, and may even be paid to your estate.In that case, the insurance money will go to the persons you name in your will. You may wish to talk over your insurance program with a lawyer and insurance counselor.

A will is so important that the cost of having a will made for you is small.A lawyer will charge you depending on how much time it takes and whether you need any tax or estate planning.A will that is properly written may save you and your heirs much tax and probate expense.The cost of a will is generally much less than a “living trust.”

The amount of property a person owns does not determine whether or not a person needs a will.A person’s personal and financial circumstances determine when and how a will should be drafted.For example, it is important for young parents to have a will to provide for their children even if they own little personal or real property.

When you make your will, you will name a personal representative (formally called an “executor”) to take care of your estate during probate.The personal representative pays all the bills, gathers all your property together, collects all the money that is owed to you, and sees that your property gets to the people you named in your will.Your personal representative can be a member of the family or a friend.It is best to name a person familiar with your personal affairs.If you think there may be hard feelings in your family after you are gone, you may want to choose a bank or trust company to be your personal representative.Many banks and trust companies will act as a personal representative for a fee.If you do not have a will, the court will pick someone to be the personal representative.

A properly drafted living trust can work well as a substitute for a will and is sometimes effective in reducing costs upon your death.A living trust is appropriate in limited circumstances.A decision to use a living trust instead of a will should only be made after discussing the pros and cons with an attorney familiar with estate planning.

Yes.When you make your will, you should consider what medical procedures you wish to be taken in the event you become seriously ill.An advance directive allows you to make specific choices regarding the type of medical care you want when you become seriously ill, and whether you wish to be kept on life support in certain medical circumstances.It also enables you to appoint a specific person to act as your “health care representative” to make health care decisions in the event you become incapable of making health care decisions.

Yes.One of the kindest gifts any person can leave behind at death is a clear list of where certain things are and what burial and financial arrangements should be made.You should complete the information and let your next of kin or the executor of your estate know where it is.

A trust is an agreement that arranges for another person, a bank, or a trust company to manage or control your property for your beneficiaries.When you sign a trust agreement, you are handing over legal “title” or ownership of funds, stocks, or other property to this person or institution.

As the person who sets up the trust, you are the “trustor.”The person or institution that holds legal title to your trust is the “trustee.”The trustee takes care of the trust and pays the money over to the person who is designated to receive it called a “beneficiary.” A trust is one way to take care of a minor child, an elderly person, or someone who does not handle money well.A trust may be set up by your will.If you name a trustee in your will, be sure that the trustee is someone who knows how to take care of money or property and who agrees to do the job.Trusts may also be established during your lifetime.All trusts should be established with legal advice.Trusts involving large amounts of money require financial planning beyond the expertise of most small law offices.

Most banks do not want to manage small trusts.The minimum size your trust must be will vary from bank to bank, so you may want to check several places.If your trust is too small for a bank to handle or if you prefer an individual, you can choose your spouse, a relative, family friend, or business partner as trustee instead.

The trustee must keep and use the trust property only for the beneficiaries you name in your trust agreement.The trust “principle” and “income” cannot be used for the trustee’s benefit. The principle is the value of the funds or property in the trust.The income is money–such as dividends from stocks or rent from an apartment building–that the trust produces.

Special note: You may have a bank account “in trust for” a member of your family or a friend.These bank accounts are not trusts.They are contracts that say the bank will pay the money in your account to the other person when you die.

That depends on what you want estate planning to do for you.There are many different trusts, but all are either “living” or “testamentary.”

A living trust, also called “inter vivos,” operates during your lifetime.You might set up a living trust so that a professional can manage your investments if you don’t have the time or expertise, or to take over management of your finances if you become disabled or senile. A living trust also lets you make your own decisions about the kind of old-age care you want.You can put your savings into a living trust that says the money should be used to help your family take care of you.Or, you may prefer nursing home care.If you become disabled or senile without such arrangements, a court may have to decide what kind of care you will have and who will manage your money.

A living trust also can be part of your overall estate plan.For example, you may set up a living trust that lets you receive the income from the trust principle and then transfers that income to your beneficiary when you die.

With a living trust, the trustee can check with you before changing the way your funds are invested.A living trust is confidential.Only you, the trustee, and the beneficiaries know the amount your trust is worth, how the income is used, and the names of the beneficiaries.A living trust also allows you to avoid “probate.”

A testamentary trust starts after your death.You might prefer this type if you don’t want your cash, stocks, or other property held in trust in your lifetime.And, if you know how to manage your financial affairs, you might not want to pay the costs of operating a living trust.

A testamentary trust, unlike a living trust, is delayed by probate because it is part of your will.This means your beneficiaries might not receive some income from the trust until probate is completed.However, some testamentary trusts funded in various special ways can start operating a few weeks after your death.

Living trusts can be “revocable” or “irrevocable.”You can change and even cancel a revocable trust, but not an irrevocable one.Normally, the person who sets up the trust can revoke a living trust unless the trust agreement says no changes can be made.

If you have a revocable living trust, you’ll be able to judge how well the trust and the trustee work to your advantage.Then, if you’re not satisfied, you can get a new trustee or change or cancel the trust agreement.Before you sign an irrevocable living trust agreement, you should think about the ways your needs could change or your income might be reduced at some future time.For example, you might have a lengthy and costly illness.So, be sure you can manage without the trust principle.Once you sign an irrevocable living trust agreement, you can’t make changes.

Since a testamentary trust is part of your will, it can be changed or canceled only if you write a new will or a “codicil.” (A codicil is a paper that changes or adds to your will.)It must be written and witnessed according to the laws that apply to wills.

That is up to you.Your personal representative needs to know where the original is located and must be able to gain access to it.

An estate planning expert may recommend that you change the way you own or hold title to some of your property.

An estate planning expert might recommend changing the ways you hold title to your life insurance policies, real estate, house, rental property or land and other possessions.

If you give money or other property away during your lifetime, there will almost always be gift taxes to pay.If your property passes to someone else after your death, estate taxes will be charged.The tax rate is the same whether you give property to someone during your lifetime or when you die.

However, you may have property, such as a collection of antique silver or a lakefront lot,that you expect to increase in value in the years ahead.In this case, the amount of taxes to be paid would be less if you gave the property to someone else before it became more valuable.However, you must decide whether you want to part with the property during your lifetime and whether you can afford to.

Wills and trust agreements are legal documents.So, if you want help in preparing a will or if you want to set up a trust, you should see a lawyer.Your insurance company, trust officers, financial planners, tax and other experts might recommend that you look into certain estate planning devices.But, a lawyer can help you work out an overall plan for passing your estate on to your beneficiaries.

To help you with estate planning, the lawyer must know all about your finances now and how they might change when you reach retirement age.So, be prepared to tell him or her how much money you make and how much you have in savings accounts, stocks and bonds, land, insurance and any other investments.The lawyer should see copies of your will, deeds to real estate, any pre-marital agreement you may have signed, any divorce court orders, and the federal and state income tax returns you filed during the last five years.Your lawyer will also need to know about your pension and profitsharing plans, any businesses you own, and the mortgages and debts you may owe.

You can ask the lawyer to show you more than one kind of estate plan that you might choose.He or she can point out the advantages and disadvantages of each.

The cost of estate planning depends on your individual plan.But, the cost will include the attorney’s charges for working out an overall plan and for preparing any will, trust, agreement, or other legal documents you may need.

Most lawyers charge hourly rates, but some charge flat fees.Before you hire the lawyer, ask for an estimate of the cost and the amount of time the work will take.You can also ask for a written fee agreement so you won’t be surprised when you get the bill.

If a trust is part of your estate plan, you will generally have to pay an annual fee to the person or bank acting as your trustee.The cost of managing a trust can vary, so you might want to “shop around” before you make a decision.You should also expect to pay additional charges for any accounting, tax, or investment experts that your trustee may need.

Also, depending on the type of estate planning you choose, you or your heirs should be prepared to pay taxes.Your lawyer can tell you about how much these charges will be.