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| Estate Planning - Frequently Asked Questions
What is a will? What is a trust? What is probate? When is probate required? Do I really need a will? What are some of the purposes and benefits of a trust? Will the government take my assets after I die if I die without a will? What will happen to my children after I die if I die without a will? Can I just type out my own will? What is a living trust? My estate is small, so I do not need a living trust, right? If I am married, does my spouse need a will too or is my will enough? Note: All answers below are based on Utah law, are for general information only, and do not contain a full legal analysis of the matters presented. QUESTION: What is a Will? ANSWER: A last will and testament is a legal document that sets forth your wishes for the distribution of the assets you have acquired during your lifetime. In your will, you also can name one or more persons to be the guardian of your minor children, if you should die with minor children. Additionally, in your will, you nominate who you want to be the Personal Representative (formerly called Executor) of your estate. Return to top QUESTION: What is a trust? ANSWER: Like a will, a trust is often used to distribute assets after death, and a trust is usually created with a legal document. But, unlike a will, a trust can be used to own and hold property. A revocable trust is one that is revocable and amendable by the person(s) making it as long as they are living. A revocable living trust is a revocable trust created by a living person. If all of your assets are owned in a valid revocable living trust, all of your assets can pass to your heirs without any requirement to go through the court process called the probate process. Return to top QUESTION: What is probate? ANSWER: Probate usually refers to a court process of administering your estate after you dies. During the probate process, the court declares a will valid and supervises and approves the distribution of assets of the person who has died, whether or not the person died with a will. The court also names the Personal Representative (formerly called Executor) of the estate. After being named by the court, the Personal Representative has the power to settle the affairs of the estate (such as paying final bills and gathering all of the assets for distribution to the heirs). The probate process takes a minimum of four months but often takes longer. Probate can take years, particularly when one or more heirs contests the will or distributions. Return to top QUESTION: When is probate required? ANSWER: Probate is usually required to transfer assets held in your name after you die. If you own real estate or a bank account held in your name when you die, a probate proceeding is nearly always required to transfer those assets after you die. It may be possible to transfer clothing and other similar personal effects without a probate proceeding, but each situation is different. If your estate is worth less than $100,000 and does not include real estate, a simplied court process can often be used. We can provide advice regarding whether probate is required to family members of a deceased individual in each situation. Return to top QUESTION: Do I really need a will? ANSWER: We recommend a will for everyone, but a will is not required by any law. If you die without a will, the government is not going to take your assets. (Of course, if you owe valid debts to the government at your death, the government may have rights to your assets after you die.) If you die without a will, your estate will be distributed according to the manner the Utah State Legislature has determined through statues. However, if YOU want to determine how your assets are distributed after your death, then a will is vital. Additionally, in your will, you can nominate one or more guardians for your minor children, if you should die with minor children. Return to top QUESTION: What are some of the purposes and benefits of a trust? ANSWER: In many cases, one purpose of a revocable living trust is to avoid the court process called probate. If all of your assets are owned in a valid revocable living trust, your estate can be divided after your death by your chosen trustee and completely settled in shorter time frame than the typical probate court proceeding. Another common purpose of a revocable living trust is to allow your family to more easily manage your assets while you are living, if you become incapacitated or incapable of caring for yourself. Also, in cases when estate tax may be owed after your death, a revocable living trust can save your estate (and your heirs) thousands of dollars in estate taxes after you have passed. For example, with a properly prepared and funded Revocable Living A-B Trust, married couples can effectively double the amount of their assets that pass to their heirs free of estate tax. Further, a revocable living trust can be used to avoid probate in multiple states, when you own real estate in multiple state. Trusts can be used for many other purposes. Return to top QUESTION: Will the government take my assets after I die if I die without a will? ANSWER: As discussed above, should you die without a will, your estate will be distributed according to the manner the Utah State Legislature had determined through statues. However, if you want to be the one to determine how your assets are distributed after your death, then a will is vital. Additionally, in your will, you can nominate who you want to be the guardian of your minor children, if you should die with minor children. Return to top QUESTION: What will happen to my children after I die if I die without a will? ANSWER: If you have minor children when you die and you do not have a will that nominates a guardian, there be a court hearing in which a judge will determine who will best be the guardian of your children. In a will, however, you can nominate who you want to be the guardian of your minor children after your passing, and if the will is valid, the court must respect your nomination in your will unless someone challenges your nomination. Return to top QUESTION: Can I just type out my own will? ANSWER: We do not recommend preparing your own will. However, if you follow the proper statutory procedures for preparing and executing a will, a will that you have prepared on your own would be a valid will. In order to give yourself and your heirs the best opportunity to have a legally valid will that complies with Utah law, we recommend that an attorney prepare your will and that an attorney supervise its execution. Return to top QUESTION: What is a living trust? ANSWER: A living trust is a trust that is created during your lifetime, as opposed to a testamentary trust which is created after you die as directed in a will. Return to top QUESTION: My estate is small, so I do not need a living trust, right? ANSWER: Many of the benefits of revocable living trusts apply regardless of the expected size of your estate. It is true that, for larger estates where estate tax may be owed, certain revocable living trusts can be used to save your heirs thousands of dollars in estate taxes. However, that is not the only benefit of a Living Trust. Even small estates can benefit from Living Trusts. If the trust document is properly drafted and administered and if all of your assets are owned in the trust, your heirs may be able to completely avoid the time and cost of a court probate process after your death. Another common benefit of a revocable living trust is to allow your family to more easily manage your assets while you are living, if you become incapacitated or incapable of caring for yourself. Return to top QUESTION: If I am married, does my spouse need a will too or is my will enough? ANSWER: Because it is impossible to know who will die first, you and your spouse should both have a will. Fortunately, because both the husband and wife often have the same desires for the disposition of their assets, personal respresentatives, guardians and other provisions, a will for your spouse can be created for no additional cost. Return to top Do you have other questions? Click here for our contact information. |
| Copyright ©2005-09 Stepan Lewis & Paxman, LC. All rights reserved. call us: 801-233-0606 contact us | site map Accepting: 
The material on this web site is for general information only and does not contain a full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The viewing of this web site and the material contained herein does not create an attorney-client relationship with this Law Firm. Gregg K. Stepan is admitted to practice law in Utah and the District of Columbia. Christopher F. Lewis, Isaac D. Paxman, Richard N. Barnes, and Jonathan D. Bletzacker are admitted to practice law in Utah. |