Wills & Trusts

While a comprehensive estate plan includes more than just a Will (or “Last Will and Testament”) and a Trust, these documents serve as the foundation of your estate plan. They help you spell out exactly how (and to who) you want your assets to be distributed at your death. At Summit Legacy Planning, we hold your hand through the process of customizing your estate plan documents, which will include evaluating whether you need a Wills-only estate plan or a Trust-based plan in Utah. Your personal circumstances are inherently unique — no Will or Trust will be alike — and we want to be sure to capture your wishes in these documents.

Perhaps the most important thing to keep in mind when thinking about hiring an attorney for a Will or Trust is that just initiating the process is usually the biggest hurdle! At Summit Legacy Planning our goal is simple - to make things as painless as possible by educating you on your options and then advising and assisting you every step of the way. Read further for a few main points on Wills, Trusts, and why you may want to have both in your estate plan. Or go ahead and contact us online, or by calling our Park City office, for more information.

Background: The Utah Probate Process

Probate is the court-supervised process for winding up your affairs after your death. This process generally involves the following activities:

  • Proving to the Probate Court that your Will, if you had one, was valid.
  • Appointing a Personal Representative (who may be required to post a bond) to oversee your estate.
  • Inventorying and valuing your individually-owned assets which are known as your Probate assets.
  • Paying your outstanding debts and taxes.
  • Distributing all of your assets (after payment of debts, taxes, attorney fees, and court fees) to your beneficiaries in accordance with your Will (or if you did not have a Will, then in accordance with the State of Utah’s default intestacy laws which may not be in line with your wishes).

However, if your estate meets certain requirements (valued at $100,000 or less and does not include real estate), the State of Utah may allow your Personal Representative to instead file a “Small Estate Affidavit” and distribute your assets through a more simplified, inexpensive process.

What does a Will do, exactly?

A Will is a document that spells out your plan for distributing your assets after you die. It also names those who you want to handle your affairs after your death. If you have minor children, this is the one document where you name those who you want to serve as their guardians.

A Will does not, however, keep your assets out of Probate. In fact, a Wills-only plan (i.e., an estate plan without a Revocable Living Trust) will ensure that your assets will be probated.

What is a Revocable Living Trust? And who needs one?

A Revocable Living Trust provides for the distribution of your Trust assets after you die, just as a Will does. However, a Trust allows your estate to be dealt with outside of the Probate Court, in a private setting, and in a more controlled & protected manner than you could with only a Will.

Control after death.

A Trust gives you — regardless of the value of your assets — the opportunity to spell out exactly who can receive your estate and under what conditions. Perhaps you have minor children or other beneficiaries in unique circumstances and you’d like to control or restrict their distributions for their benefit over an extended period of time. This is one important reason why we, at Summit Legacy Planning, will often recommend a Trust. Parents often use Trusts to control under what circumstances and what age, their children will have access to their inheritance. Trusts are also useful to protect beneficiary assets from creditors, lawsuits, and divorce. At Summit Legacy Planning, we will educate you and help you evaluate whether your circumstances, as well as your beneficiaries’ circumstances, will be best served with a Trust.

Control during lifetime.

If you become incapacitated during your lifetime, a Successor Trustee will step in and manage your Trust assets for your benefit while you are alive and only in accordance with the terms of the Trust that you have spelled out. This is unlike a Will which only takes effect after you have passed away – if you became incapacitated and you did not have your assets in a Trust, and depending on whether you have appropriate power of attorney documents in place, a conservatorship may have to be opened in Probate Court to manage your assets.

Privacy.

Unlike a Will, which becomes part of the public record, a Trust is a private document and many families value that privacy. With a Will only plan, there is nothing stopping your nosy neighbor from knowing exactly what is in your estate, or what you have received from your heirs, as it goes through probate.

Minimize estate tax liability.

A Trust can be drafted to minimize estate tax liability if your estate may exceed the Federal estate tax exemption amount upon your death. For 2017, this exemption amount is at $5.49 million per individual or $10.98 million for married couples. For many Park City families,the total value of their homes, investments, life insurance policies and other assets bring them close to the estate tax exemption amount. As a result, Summit Legacy Planning is prepared to offer you various plans which will help you avoid unnecessary tax exposure.

For a Trust-based estate plan to be carried out successfully, it is important that your Trust is properly “funded.” This means retitling certain assets into the name of your Trust and updating the beneficiary designations for your life insurance policies and retirement accounts to include the Trust as a beneficiary. In other words, once you sign your Trust, that’s not the end of it – you still have to “fund” your Trust and we, at Summit Legacy Planning, will give you the option to have us transfer the assets for you or you can save some money and transfer your assets with our personalized assistance.

If I set up a Trust, why do I still need a Will?

It's a fairly common problem that people pay to have a Trust designed and then never get around to funding the trust by retitling their assets. When this happens, an estate must then go through probate. Let’s say for example a few years after you signed your Trust, you set up a new brokerage account in your own name, forgetting that it should be set up in the name of your Trust. Then upon your death, that account — because it was not owned by the Trust — will have to be probated. But, in a Trust-based plan, your Will would instruct the Probate Court Judge to actually transfer your Probate assets, if any, to your Trust and then be administered and distributed as the Trust provides. This is what we, at Summit Legacy Planning, call a “pourover Will.” It serves as a back-up in case you did not fund your Trust with all of your assets before your death.

If you have minor children, you need a Will to name your children’s guardians. In addition to simply naming guardians, Summit Legacy Planning offers an IronClad Kids Safety Plan which serves as a blueprint for your children's caregivers by appointing both short term and long term guardians. It also includes childcare instructions for those guardians in the event of your incapacity or death as well a medical powers of attorney for your children in the event you are not around to make those important decisions.

Get started on drafting your Will or Trust.

For busy people — especially parents — the hardest part of putting a Will or Trust in place is often just setting up that first appointment with an estate planning attorney. At Summit Legacy Planning, our goal is to make the next steps as easy as possible: we will walk you through the process and stay by your side if you have questions, or require changes, down the road.

We welcome you to contact us for more information. Our office is in Park City, Utah and we’re happy to work with individuals and families throughout the area.

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