Commonly Asked Questions

When you are the heir or beneficiary of a will or trust are you entitled to get a copy of the will or trust?

Duty to Share Trust Documents
Who gets a copy of the trust often depends on who is considered a Qualified Beneficiary. Utah Code §75-7-811(c) requires that, within 60 days after the trustee learns of the settlor’s death, the trustee must notify the qualified beneficiaries of the trust’s existence, the identity of the settlor or settlors, the beneficiaries’ right to request a copy of the trust instrument, and the beneficiaries’ right to receive an annual report of the trust’s status and activities. Section 75-7-103(1)(h) defines a “qualified beneficiary” as a beneficiary who is a current or permissible distributee of trust income or principal or who would be a distributee or permissible distributee if the trust terminated on that date.

Duty to Share Will
Depending on your relationship to the deceased you may be entitled to a copy of the will. When and how you receive the copy may differ depending on the type of will administration process.

When the will is filed with the court during the probate process, all interest parties receive a copy. In addition, Utah Code §75-3-705 provides that the personal representative must prepare an inventory within three months after his appointment. The inventory must identify the item, state its fair market value as of the date of the decedent’s death, and state any encumbrances on the property. These requirements apply whether the probate is formal or informal.

An “Interested person” includes heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent, ward, or protected person. It also includes persons having priority for appointment as personal representative, other fiduciaries representing interested persons, a settlor of a trust, if living, or the settlor’s legal representative, if any, if the settlor is living but incapacitated. The meaning as it relates to particular persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, any proceeding.

Can’t I avoid both estate planning and probate by just putting my kids’ names on all my properties and bank accounts?

The concept of parents adding their children as co-owners of real estate, bank accounts and other assets seems to have originated a generation or two ago in much simpler times. However, even in days gone by this type of “shortcut” planning did not always work out and in some cases created family disasters resulting in loss of inheritance and/or destruction of family relationships. In today’s world there are more reasons than ever not to use shortcut planning to avoid probate. The chance of possibly saving some money by taking this do-it-yourself approach is vastly outweighed by the risk that something ends up going horribly wrong, in some cases while parents are still living. Most people do not realize that by adding their children’s names to deeds to homes, bank accounts and other assets puts those hard-earned resources at risk of being attacked by a plaintiff or creditor who is pursing one or more of the parents’ children. Furthermore, it is not uncommon for do-it-yourself deeds to contain fatal flaws that do not effectively transfer ownership to the children at the parents’ deaths and still require probate proceedings to correct after parents have passed away. To ensure your planning is done right the first time and that it stays updated as time goes by, work with your Voyant Legal team to create a comprehensive plan for your family that will pay for itself many times over.

Why would using an online will not be a good idea?

If I write up my own will and get it notarized, then what? Do I have to hire a lawyer to make it legally valid and binding? Where do I store it? Do-it-yourself planning, whether completed using an online program or simply written out by hand is almost never advised. Most people would not risk performing even a simple and fairly painless surgical procedure on themselves or a loved-one for risk of hurting someone, opening up a channel for infection or otherwise unintentionally causing a death.

The same logic applies in almost all legal matters, including estate planning. Online tools for creating Last Wills, Trusts and other important documents are often one-size-fits-all. One popular financial guru with a sizable national following offers a do-it-yourself online trust creation tool that she claims is fit for use in all 50 states. However, upon closer review the boilerplate provisions of the so-called trust are all based on the trust laws of the state of California, many of which would be invalid, problematic and unenforceable in most any other state.

Additionally, there are specific requirements for the proper execution of Last Wills, Trusts and other important planning documents that if not followed with exactness can completely invalidate the do-it-yourself planning instrument.

If you want the peace of mind that your plan will actually work when it is needed most, you will want to work with an experienced estate planning attorney who will not only ensure that documents are prepared, executed and implemented properly from the outset, but who will also act as a trusted advisor for you and your family members after you can no longer be there to oversee your affairs yourself (also see “Can’t I avoid both estate planning and probate by just putting my kids’ names on all my properties and bank accounts?”).

One of my parents passed away
and the other remarried,
am I entitled to a copy of the will or trust?

Duty to Share Trust Documents
If your parent did not list, you as a qualified beneficiary upon their death, then you would not be entitled to a copy of the trust. Who gets a copy of the trust often depends on who is considered a Qualified Beneficiary. Utah Code §75-7-811(c) requires that, within 60 days after the trustee learns of the settlor’s death, the trustee must notify the qualified beneficiaries of the trust’s existence, the identity of the settlor or settlors, the beneficiaries’ right to request a copy of the trust instrument, and the beneficiaries’ right to receive an annual report of the trust’s status and activities. Section 75-7-103(1)(h) defines a “qualified beneficiary” as a beneficiary who is a current or permissible distributee of trust income or principal or who would be a distributee or permissible distributee if the trust terminated on that date.

Duty to Share Will
As a child your would be entitled to a copy of the will, but if all the assets are in the trust the will information will not provide you very much insight. When and how you receive the copy of the will may differ depending on the type of will administration process.

When the will is filed with the court during the probate process, all interest parties receive a copy. In addition, Utah Code §75-3-705 provides that the personal representative must prepare an inventory within three months after his appointment. The inventory must identify the item, state its fair market value as of the date of the decedent’s death, and state any encumbrances on the property. These requirements apply whether the probate is formal or informal. If there are not assets in the estate because they are all owned by the trust then there would be nothing listed on the inventory.

An “Interested person” includes heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent, ward, or protected person. It also includes persons having priority for appointment as personal representative, other fiduciaries representing interested persons, a settlor of a trust, if living, or the settlor’s legal representative, if any, if the settlor is living but incapacitated. The meaning as it relates to particular persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, any proceeding.

Must a will be probated to be valid?

No, upon a person’s death, Utah Code 75-3-1201 only requires the will to be probated if the value of the entire estate subject to administration, wherever located, less liens and encumbrances, does not exceed $100,000, or there is real property owned by the estate.

If the estate exceeds $100,000 or owns real property then probate will be necessary, the probate process will determine if the will is valid.

Is there a time limit for filing for probate when someone dies intestate?

Yes. If a person dies without leaving any “testamentary” documents, such as a Last Will or a Trust, we say the person died “intestate.” In most cases a probate is required both for a person who dies “intestate,” and for someone who dies leaving only a Last Will (see “How do I know if I need a trust,” below). In both cases, Utah law requires that a probate be filed with the courts within three years of death. However, there are alternative procedures provided for by law if a probate was not commenced within the three-year statute of limitations. Your Voyant Legal team can discuss the options with you in either case.

If our estate plan was created in the state we live in, does it need to be changed when we move to a different state?

Yes, although most of the documents you prepared are still valid and binding even though you live in a new state, the documents usually need to be updated to reflect your new circumstances. Your new state may have additional requirement that you need to add to your existing documents.

Depending on the state the changes are usually minimal. For example, your trust should still be valid but you may need to record a deed placing your new home into you trust.

How can I find out if someone has a Trust or a Last Will?

Some states require that Trusts and Last Wills be recorded in the office of the county recorder in which the person resides. While this does make determining whether a deceased person left a Trust or a Last Will easier, it also makes the person’s estate planning documents a matter of public record, which most people do not want. Utah does not require that a Trust or a Last Will be recorded anywhere in the public record. In some cases, other public records, such as a deed to a home that was transferred into a Trust, will contain information about the attorney who prepared the Trust.

However, because of the attorney-client, that attorney has no duty to provide anyone other than the client with a copy of the Trust, Last Will or other documents in question. Therefore, the best practice is to work with an estate planning attorney who acts as a trusted advisor for clients and their extended families and who understands the importance of helping clients share their estate plans with trusted family members or family advisors at appropriate times. When seeking an estate planning attorney, always ask whether the attorney has a succession plan in place for his or her practice in case he or she passes away or can no longer practice law.

Do I need an attorney to change the executor/trustee, remove a beneficiary, or change the wording of one paragraph in my will or trust?

Yes, a trust and a will have different execution requirements, therefore you need to be sure you update both correctly. If it’s important enough to change, then it is important enough to make sure you made the changes correctly. After a person is deceased it is very hard to fix errors in estate planning documents and can lead to substantial family disputes and legal fees.

Can I disperse checks to the beneficiaries of a will or a trust without an attorney?

Any trustee or personal representative has what we call a fiduciary duty to the beneficiaries. A fiduciary responsibility refers to the obligation that one party has in relationship with another one to act entirely on the other party’s behalf and best interest. When a mistake or misunderstanding occurs it is often said that the Trustee breached their fiduciary duty.

Because most people are not fully aware of all the requirements of a fiduciary, they easily fall into one of these mistakes or errors which opens them up to liability. Utah Code allows a trustee or personal representative to obtain legal counsel which is paid for by the trust or estate. It is highly recommended that a trustee or personal representative consult with an attorney before they make any distribution of trust or estate funds. It is very hard to correct the mistake after it has been made.

What is ancillary probate?

Probate is a court procedure that is supposed to facilitate the transfer of assets from a deceased person who did not have an estate plan designed to avoid probate. Generally, a probate is filed in the state where the deceased person lived at the time he or she passed away. However, in some cases, the deceased person owns property in other states. An ancillary probate is a probate proceeding filed in the state where the deceased person’s property is located. For example, if your loved one living in Utah owns real estate in Idaho and passes away without a proper estate plan, the primary probate would be filed in Utah, and an ancillary probate would need to be filed with a court in Idaho to gain control of the Idaho property. The need for an ancillary probate (or in some cases, ancillary probates in multiple states) obviously increases the court costs, attorney fees and the length of time required to settle the deceased person’s estate. Full trust planning performed by a qualified estate planning attorney can eliminate the risk of need for probate and any ancillary probate(s).

Who determines if a person was “of sound mind” when they executed a will?

Utah Code §75-2-501 provides that, in order to make a valid will, a person must be at least 18 years of age and must be of sound mind. To determine who has a sound mind we must follow guidance the courts have given us in case law. Utah courts apply a three-pronged test, a testator had testamentary capacity if, at the time he signed the will, he was able: (1) to recall the nature and extent of his property; (2) to identify the natural objects of his bounty and to recognize his relationship to them; and (3) to dispose of his property understandingly, according to a plan formed in his mind (i.e. to understand the nature of the testamentary act).

This test is only applied at the moment in time the will was signed. If there is any questions as to the capacity of a person extra documentation is prudent. The preparer of the documents should documents that the testator meets the three prongs, additional documentation from a physician or healthcare provider is also prudent.

The Court has held that neither that determination nor the fact that a testator was under a conservatorship necessarily meant that he lacked testamentary capacity. In another case, the Court held that the fact that the testator had been in and out of mental institutions his entire life did not necessarily mean that he lacked testamentary capacity. A person may still have testamentary capacity even though they are unable to manage their own finances or require extra help from caregivers.

I want an estate plan but my spouse doesn’t.
What can I do?

It is very difficult to have a perfect plan without both spouses participating; however, some planning is better than no planning. A spouse can execute estate planning documents without the consent of their spouse, however some assets may not be covered by the estate plan, this depends on the type of assets. For example, if the home is jointly owed and the spouse wants to place the home into a trust, they will need the spouse to execute a deed moving title to the name of the trust. Also, some retirement accounts will not let you change the beneficiary without the signature of your spouse. Generally, each asset that the planning spouse only owns in their name can be planned for, but the assets that are owned jointly are usually stuck until the other spouse wants to participate in the planning or passes away.

Utah also has a statute that limits the ability of a spouse to dis-inherit their spouse, this is call the spouses elective share. To determine the elective share involves a complex application of a statute but as a general rule the amount to be protected is about 1/3 of the assets. Meaning a spouse must leave about 1/3 of their assets to their spouse unless their spouse signed away their rights to that 1/3.

What can I do if the Trustee of my parent’s trust isn’t doing things honestly?

A trustee has a fiduciary duty to each beneficiary, if you are a beneficiary then you request certain things of the trustee in which they must comply or be in breach of that duty. The first thing to do is request information regarding the items you are concerned about, Utah Code §75-7-811 imposes on the trustee the duty to keep the trust beneficiaries informed about the activities of the trust and to respond to reasonable requests for information from the beneficiaries.

If the Trustee does not provide information requested or the information confirms your concerns you should retain an attorney to advise your options moving forward. When there is a trustee who is not following the terms of trust the sooner it is addressed the less damage occurred.

What type of document do I need to state who I want to take care of my minor or disabled child if I die?

Some estate planning firms rely solely on a one- or two-sentence paragraph in a parent’s Last Will to designate a long-term or permanent guardian for a minor or disabled child in the event of the parent’s death. Sometimes parents have a standalone nomination of long-term or permanent guardian. Unfortunately, a long-term guardianship nomination does not address many of the most pressing and urgent concerns parents have for their children if a tragedy occurred. At Voyant Legal we address every conceivable possibility that might arise in the event that the parents of minor or disabled children pass away in unexpected fashion. Complete child protection and family emergency planning gives parents a level of peace of mind that simply cannot be achieved by the execution of a generic guardianship nomination. Also, having an attorney who will act as a trusted advisor to you and your extended family in the event you are gone is crucial for ensuring maximum protection for your family. Contact your Voyant Legal team for more information about how you can protect your minor and/or disabled children should something tragic happen to you.

What are my rights as a beneficiary after
my parents both pass?

To determine what your rights are you should first review the trust or will documents. They often provide information regarding what the trustee must do and what role the beneficiary has. Then you should review Utah Code §75-7-801 through Utah Code §75-7-815 to see what statutory rules apply. In some cases, the trust document would supersede the statute, so a careful reading is necessary. It is often worth it to have an attorney review the documents with you and discuss what rights you have under the trust.

What is the best way to secure my money and child if anything happens to me and my spouse?

In addition to addressing the very serious concerns parents have about the care of their children in the aftermath of a tragedy that takes parents from their children (see “What type of document do I need to state who I want to take care of my minor or disabled child if I die?”), parents also worry that their children’s financial needs will not be met after tragic event where children are left without their parents. Combining a carefully drafted Trust document that works hand-in-glove with a complete child protection and family emergency plan is the best way to ensure that the assets you own, as well as assets that would only be available if you and/or your spouse passed away (think life insurance proceeds), is the absolute best way to ensure that your children receive their inheritance only at the appropriate times, through channels you designate and that all their education, support, medical and other financial needs are met in the meantime. When both parents are tragically lost, it is important that the plan already be in place and the appropriate family members, friends and advisors know their role in the plan. Furthermore, parents will want to ensure that checks and balances are built into all aspects of the plan to decrease or eliminate the likelihood that money meant to care for their children is not misused or misdirected.

How do I know if I need a trust?

A good rule of thumb is that a Last Will is insufficient for you if you/your spouse own any kind of real estate or other assets that exceed $100,000 in value. The best way to protect your family from probate and other unexpected problems after your passing is to work with a qualified estate planning attorney to create and fund a Trust that addresses your individual and family needs and preferences. Avoiding probate is only one of several reasons that a Trust may be the best planning tool for you and your family. Some Trusts not only ensure that your family avoids probate but can also provide asset protection in the event that you are sued.

Increasingly, irrevocable trusts are being used by individuals and couples in their senior years to prepare for the likely need for expensive, but often-times unavoidable, long-term care in an assisted living or nursing home. Without exception, the sooner you begin working with an attorney who will act as a trusted advisor for your family even after your documents are prepared and executed, the more options you have and the better your chances of preserving your assets and leaving your family in the best possible situation after you have permanently lost capacity or passed away. Your Voyant Legal team is ready to help you get started now.

 
DISCLAIMER : The Legal Information found on VoyantLegal.com is intended for general informational purposes only and should be used only as a starting point for addressing your legal issues. The Legal Information is not the provision of legal services, and accessing such information, does not create an attorney-client relationship between you and Voyant Legal PLLC. It is not a substitute for an in-person or telephonic consultation with a lawyer licensed to practice in your jurisdiction about your specific legal issue, and you should not rely on such Legal Information. 

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