James R. Balmforth: Probate Lawyer Draper Utah

If any of your close relative is suffering from a terminal illness, speak to an experienced Draper Utah probate lawyer to understand what needs to be done to protect the person’s assets. It’s important for the person to start planning on how his estate should be distributed once he is no more. There are many ways to do this. A will is just one of them. An experienced Draper Utah probate lawyer can explain the other options to you.

Unlike conservatorships, guardianships, and powers of attorney, however, the life of an inter vivos trust may be designed to extend beyond the death of the patient. And unlike the simple will (one without a testamentary trust), its life may be designed to extend beyond the relatively brief period of the estate’s administration—in each instance to perform a variety of functions both after the death of the patient as well as after the administration of the patient’s estate. Consult with an experienced Draper Utah probate attorney if your close relative who is suffering from a terminal illness wants to know more about how he can distribute his estate.
Assets held in the inter vivos trust at the time of the patient’s death could, accordingly, be retained there until such time as is appropriate for the beneficiaries to assume the management burdens and responsibilities, if ever.

In this respect, the inter vivos trust may perform trust functions similar to those of the will that contains a testamentary trust. But unlike that arrangement, the inter vivos trust may provide opportunities for a continuity of management. In the inter vivos trust arrangement, the trustees who managed assets throughout the patient’s lifetime may simply continue to manage them for a different group of beneficiaries following the patient’s death. In addition to a variety of other benefits, this arrangement provides the patient with the clear opportunity to observe and judge the various management capabilities of the trustees before they assume that role for the beneficiaries. It further provides the patient the opportunity to act on those observations by, for example, replacing trustees. The testamentary trust obviously offers no such opportunities.
As a legal form, the trust is one of the most highly flexible arrangements available to the planner and the patient alike. Alone, it is capable of immense sophistication. When used with other legal forms, it is capable of accomplishing an almost infinite array of objectives, limited only by a few important principles of law and the imagination of the creators.

Joint Tenancies

Joint tenancy is another way for someone suffering from a terminal illness to distribute his assets. Speak to an experienced Draper Utah probate lawyer to know how joint tenancies work. Joint tenancies are forms of joint ownership by which a patient may transfer assets to a joint account during his or her lifetime for management purposes. The legal nature of a joint tenancy, together with its utility as a management form, was also considered in some detail in the section on asset management. And it was also suggested there that these owner relationships may be used as asset transfer devices, as are inter vivos trusts, in addition to their management capabilities. But although they may be used to achieve some of the postmortem estate-planning objectives of the patient, joint tenancies possess neither the flexibility nor the potential sophistication of the inter vivos trust.

Although joint tenancies are inherently inflexible, the relationship may, nevertheless, serve to transfer ownership to the surviving joint tenant upon the patient’s death, provided that the survivorship was intended when the relationship was established. Thus created, the joint tenancy, rather than the terms of the patient’s will, controls the asset’s disposition. In this sense, the joint tenancy could be considered yet another alternative to the will. This result could also significantly mitigate the problem of diminished asset value due to the delays encountered in asset transfer as well as those encountered in the probate process.

When assets have been transferred to a joint tenancy during the lifetime of the patient, problems of asset transfer not encountered then may be anticipated and adequately provided for—such as the disposition of a difficult asset and the provision for estate liquidity, although it is unlikely that assets other than fairly simple ones will be placed in a joint tenancy. Moreover, as the assets held in the joint tenancy would not normally be subject to the terms and provisions of the will and therefore to the probate process, neither would they be subject to the variety of challenges and delays frequently encountered there, such as a challenge to the will’s provisions or its validity.

Unlike the inter vivos trust, the life of the joint tenancy may not be designed to extend beyond the patient’s death. The death of the patient terminates the relationship. Thereafter, complete title resides in the survivors, unencumbered by any legal obligations to hold or use the property for any particular purpose. Although the joint tenancy is sometimes used as a trust substitute, this use is fraught with practical and legal difficulties. Realistically, this form should not be used to perform management or any other functions on behalf of the beneficiaries.
Finally, although the joint tenancy form may be useful as an estate-planning measure to reduce some of the asset transfer costs and expenses associated with death, it may not be as effective in reducing income and transfer taxes as certain other forms, in particular both the inter vivos and testamentary trusts. The skilled planner simply does not have the same degree of flexibility to create a variety of property interests in the beneficiaries. Although income-producing assets can be allocated among members of a family group in such a manner as to lessen the overall tax burden among them, the planner is, nevertheless, limited to the form of outright ownership, which reduces the ultimate effectiveness of the form in accomplishing the objective.

Deeds of Conveyance

Deeds of conveyance are transfers of assets, with or without retained interests (legal rights), by which a patient may transfer assets to another during his or her lifetime for management purposes. The legal nature of asset transfers with or without retained interests, together with their utility as a management form, was also considered in some detail in the section on asset management. These arrangements, however, are primarily asset transfer devices. As a practical matter, their capacity for asset management is an adjunct to this principal function.

And although these transfers may achieve some of the postmortem estate-planning objectives of the patient outlined in the foregoing section, they do not possess the flexibility or the potential sophistication of the inter vivos trust.

The deed of conveyance serves to transfer ownership of the asset to the transferee immediately, subject to the interest retained, if any. The retained interest generally terminates on the death of the transferor or on his or her earlier relinquishment of the interest. Thus executed, the deed controls the disposition of a particular asset—a portion on the delivery of the deed, and the balance on the subsequent relinquishment of the retained interest rather than the terms of the will. In this sense, the deed of conveyance could be considered still another alternative to the will. Again, this result could serve to mitigate significantly the problem of diminished asset value due to the delays encountered in their transfer, as well as to those encountered in the probate process.

When assets have been transferred outright or with a retained interest during the lifetime of the patient, problems of asset transfer at death will be virtually eliminated. Although estate liquidity may continue to be an issue, it, too, may be anticipated. Moreover, as the assets will not be subject to the terms and provisions of the will and therefore to the probate process, neither will they be subject to the variety of challenges and delays frequently encountered there—such as a challenge to the will’s provisions or its validity.

The conveyance terminates the interest of the patient in the property transferred except for the interest retained, if any. At the latest, the death of the patient terminates the retained interest and thus the relationship. Thereafter, complete title to the particular asset resides in the transferees, unencumbered by any legal obligations to hold or use the property for any particular purpose. Accordingly, as this form may not be designed to survive the patient-transferor, it may not be used to perform management or any other functions on behalf of the transferees-beneficiaries.

Finally, although deeds of conveyance are certainly useful as an estate-planning measure to eliminate the significant expenses normally associated with death, they may also be instrumental in reducing both transfer taxes and income taxes that might otherwise be more burdensome at the patient’s death. Where, for example, a patient transfers to a beneficiary outright an asset that has the potential for appreciation in value and retains no interest, legal or otherwise, the appreciation in value following the transfer may, under certain circumstances, escape taxation upon the death of the patient.

Still, notwithstanding such opportunities, the conveyance may not be as effective in minimizing taxes as certain other forms. Again, the skilled planner simply does not have the same degree of flexibility in creating the variety of property interests in the beneficiaries that might be more advantageous from an income- and transfer-tax-planning perspective. Although income-producing assets can be allocated among members of a family group so as to lessen the overall tax burden among them, the planner is, nevertheless, limited in the available forms of ownership, and the ultimate effectiveness of the arrangement to accomplish the objective is diminished.

Life Insurance Policies.

Although frequently overlooked by many individuals as an estate-planning device, life insurance often is, in fact, the key element of an estate plan. In modest estates, proceeds of life insurance frequently comprise a significant portion of the estate, hence the term estate builder. In larger estates, proceeds are used to provide necessary estate liquidity to prevent the unnecessary liquidation of estate assets at a potential loss to the estate. So ubiquitous is life insurance that it is highly unusual not to find it present among estate assets, and it is potentially a useful element of an estate plan. A life insurance policy is essentially a contractual agreement that provides that, in consideration for the payment of periodic premiums by the insured, the company agrees to pay a certain sum to a designated beneficiary upon the death of the patient.

There are a myriad of insurance products on the market. Virtually every year brings the presentation of some new product or a new variation on a theme.

Unlike conservatorships, guardianships, powers of attorney, and joint tenancies, the insurance contract may be designed to extend beyond the death of the patient. And unlike the simple will (one without a testamentary trust), the provisions of the insurance policy may be designed to extend beyond the relatively brief period of the estate’s administration—in each instance, to perform an asset management and protection function both after the death of the patient as well as after the administration of the patient’s estate.

Once again, for example, a patient may reasonably be concerned about beneficiaries’ capacity to manage assets, fearing that substantial funds could be dissipated through imprudent investments or improvident expenditures. Accordingly, it may be unwise to transfer the proceeds outright to the beneficiaries upon the patient’s death. Alternatively, the patient may prefer that the proceeds be held for the beneficiaries pursuant to one of the settlement options outlined above. By electing one of these options before death, the patient can effectively guarantee the safety of the proceeds and ensure adequate support for the beneficiary over some appropriate period of time, a few years to life.

Hire A Draper Utah Probate Attorney

Succession laws in Utah are complex. A will is just one of the many ways a person can distribute his assets amongst his relatives and other persons close to him. A will must go through probate. Seek the assistance of an experienced Draper Utah probate lawyer.

Draper Utah Probate Lawyer Free Consultation

When you need legal help with a probate in Draper Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with Estate Planning. Charitable Trusts. Revocable Living Trusts. Powers of Attorney. Health Care Directives. Last Will and Testatements. And Much More. We want to help you.