Avoiding the Probate Process

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The probate process can be long and costly, taking months and sometimes years to resolve. The longer it takes, the more it will cost, leaving potential heirs with less than the deceased may have intended. This is really why many people engage in estate planning. But for these and other reasons, most people will try to avoid probate in any way possible.

Transferring assets outside of the probate process can not only save the estate a lot of time and expense, but can also help loved ones avoid years of legal hassle. There are four general ways to pass on your property and avoid the probate system:

  • Joint Property Ownership
  • Death Beneficiaries
  • Revocable Living Trusts
  • Gifts

Avoiding the Probate Process

Joint Property Ownership to Avoid Probate

Jointly owned property with the “right of survivorship” avoids the probate process for one very simple reason: upon death, the deceased joint owner no longer owns the property and it passes to the living joint owner. There are several ways to do this, and the chosen method will depend on what a particular state recognizes.

To create any of these forms of joint ownership with a right of survivorship, states typically require a written document that sets out the joint ownership relationship, the property that is jointly held, and the right of survivorship. Here are the most common forms of joint property with a right of survivorship:

  • Joint Tenancy with a Right of Survivorship: as the name suggests, you take property as “joint tenants” and upon the death of a joint tenant, the surviving tenant takes the deceased tenant’s portion.
  • Tenancy by the Entirety: this is a form of ownership only available to married couples (and some same-sex couples in a few states). It works in much the same way as a joint tenancy with a right of survivorship, in that effectively upon the death of one spouse, the living spouse takes the deceased spouse’s portion.
  • Community Property: in community property states, married couples can hold property as community property with the right of survivorship. It has the same effect upon the death of one spouse as a tenancy by the entirety, where the surviving spouse takes full ownership of the property.

Have Death Beneficiaries

Many types of financial assets and instruments allow you to designate a beneficiary upon your death. Upon your death, these assets become the property of whomever you designate as the beneficiary, are no longer a part of your estate, and thus avoid probate entirely. Here are some of the most common financial assets that allow you to do this:

  • Payable on Death (POD) Accounts: as the name suggests, POD accounts are simply accounts with an instruction that upon your death, the account shall be inherited by a beneficiary that you name. They are extremely simple to setup, with most banks simply requiring that you fill out a form naming the beneficiary. The beneficiary simply shows up to the bank with the proper identification and collects the account upon your death.
  • Retirement Accounts: an increasingly popular option to avoid probate is the use of retirement accounts, specifically IRA and 401(k) accounts. When you establish these accounts, you will be asked to name a beneficiary of the account upon your death. As a single person, you are free to name whomever you want, but be aware that as a married person, your spouse may inherently have a right to some or all of the money in a retirement account.
  • Transfer on Death Registrations: many states allow you to transfer securities (stocks, bonds, brokerage accounts) as well as vehicles without going through probate. Much like POD accounts, you will sign a registration statement that declares who you want your securities or vehicles to pass to upon your death.

Revocable Living Trusts Avoid Probate

A revocable living trust occurs when you transfer property to someone else (the trustee) to hold it for your benefit, but you reserve the right to revoke the trust. This means that the trustee actually owns the property, but must use it for your benefit under the terms and conditions of the trust.

By giving ownership of the property to the trustee, the property is no longer a part of your estate and can avoid the probate process entirely. You can instruct the trustee that, upon your death, he or she should transfer the property to your family and friends. This effectively transfers property without going through probate.

Trusts are set up in formal documents, much like a will, so make sure that you are complying with your state’s requirements for a trust when setting one up.

Gifting to Avoid Probate

Finally, one of the most obvious but often overlooked ways to avoid probate is to simply give your property away before your death. This requires a certain amount of planning and forethought, and even the best plans may be thwarted by unseen circumstances. As a result, you should generally only consider using gifts to avoid probate on smaller, less valuable assets. Also be aware that gift taxes apply if the gift is in excess of a certain amount, so this is typically a good option only if the asset is below the gift tax threshold.

Free Consultation with an Estate Planning Lawyer

If you are here, you probably have an estate planning or probate matter you need help with, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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from Michael Anderson https://www.ascentlawfirm.com/avoiding-the-probate-process/

from Jeremy Eveland https://jeremyeveland12.wordpress.com/2018/07/13/avoiding-the-probate-process/

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Family Law and Abortion

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Abortion is one of the most divisive and controversial legal subjects in the United States, where federal law has protected a woman’s right to choose an abortion since the U.S. Supreme Court’s Roe v. Wade decision in 1973. Some states have limited access to abortion through legislation and other means, as pressure from both sides of the debate have made abortion a highly volatile area of law. This section includes summaries of abortion law throughout U.S. history, specific abortion-related laws in various states, a detailed account of Roe v. Wade, an explanation of parental consent laws, and related resources.

Family Law and Abortion

Roe v. Wade

Abortion in the United States can’t be discussed long before mention is made of the landmark 1973 Supreme Court decision Roe v. Wade. This case was the first in U.S. history that established a constitutional right to an abortion. An unmarried pregnant Texas woman sought an abortion, but was denied under Texas law. The law was challenged in federal court, which determined that the constitutional right to privacy prevented states from banning abortion, though the court held that states have an interest in ensuring the safety and well-being of pregnant women and potential human life. The court further held that a fetus is not a person protected by the Constitution.

The Supreme Court, looking to balance the rights of the individual against the state interest in protecting human life, divided pregnancy into three 12-week trimesters. The Court provided for different treatment depending on the stage of pregnancy:

  • During the first trimester a state cannot regulate abortion beyond requiring that the procedure be performed by a licensed doctor in medically safe conditions.
  • During the second trimester a state may regulate abortion if the regulations are reasonably related to the health of the pregnant woman.
  • During the third trimester a state’s interest in protecting the potential human right outweighs the woman’s right to privacy and may prohibit abortions unless necessary to save the life or health of the mother.

Abortion and Family Law

Although Roe v. Wade remains the landmark case on abortion it has subsequently come under scrutiny and lawmakers and abortion opponents have pushed for stricter abortion laws over the past several decades. Although Roe continues to stand there are increasingly conditions placed upon women seeking to access abortion that have chipped away at the rights indicated by Roe.

Common restrictions upon abortion rights include requirements that place social pressure on pregnant women. Counseling requirements, waiting periods, required viewing of ultrasounds, and parental involvement in abortions sought by minors place pressure on pregnant women not to complete an abortion. Bans on “partial-birth” abortions, prohibitions on public funding, exemption from private insurance coverage, doctor or hospital requirements, and gestational limits erect procedural obstacles to accessing abortion.

Both advocates and opponents of abortion continue to fundraise, lobby, and litigate the issue. As such, further legislation and litigation are likely to arise in coming years. Since laws among states currently vary significantly, and because changes in the law are likely, it is important to check your state’s current abortion laws for specific and timely information.

Free Initial Consultation with Family Law Attorney

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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from Michael Anderson https://www.ascentlawfirm.com/family-law-and-abortion/

from Jeremy Eveland https://jeremyeveland12.wordpress.com/2018/07/13/family-law-and-abortion/

Successful Lawyers in Utah

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Successful Lawyers in Utah

Salt Lake City seems to be one of few shining beacons that exist as an example of a success city following the aptly titled “great recession” of 2008. Many may remember that the real estate market suffered greatly during and shortly after the recession. The average Utah lawyer is being retained by small and large businesses alike to develop the legal foundation for their hopeful real estate plans. This focus on new development follows a focus on the environment, according to many law firms in Salt Lake City Utah. A welcome move since Salt Lake City has high levels of pollution compared to other areas. In 2010, it was declared nationally that Northern Utah’s air was, by a very large gap, worse than any other air anywhere in the U.S. Isn’t that crazy? I think it is. Following this painful discovery, those who live in Utah have since decided that in order to have a healthier environment precautions must be taken for the future.

Attorneys Helping You

Once it was activists and youth who declared their desire that new building and real estate endeavors adhere to certain standards, to benefit and preserve nature. Now, businessmen and real estate developers are, themselves, finding ways to be environmentally conscious for the benefit of consumers, wildlife and the environment, because they believe in it and not because they are legally bound. This is a dramatic shift in the attitude towards real estate development, which many health conscious citizens and Utah lawyers are supporting. Many agree that this stems from many factors, including the scientific evidence that has amassed and supported the effects of environmental health on personal health. A larger reason for this shift may be even simpler; the same college-bound, megaphone-yielding, environmental activists of the past ten years are finding themselves as powerful post grads in big businesses. Health conscious shifts are being created by the health conscious minds of many current CEOs and the changes are making an impact; a trend that’s even being seen in law firms in Salt Lake City Utah, as well. Studies now show that simple steps towards economic and environmental harmony create a much larger impact than previously thought and a Utah lawyer must be constantly aware of the environmental laws that now, and will soon, surround real estate development. A real estate lawyer Utah can depend on will have his or her skills put to the test as these legal alterations emerge in the next few years.

When It’s Time for Legal Help

Apart from these environmental benefits of health conscious real estate development, tourism will take a jump, declares many attorneys in law firms in Salt Lake City Utah. More patrons and visitors will flock into the fair city that houses breathtaking landscape, especially if the air won’t take your breath away, says any Utah lawyer. That’s also something that Salt Lake City officials are happily taking under consideration and preparing for as efficiently as possible. For the month of July regulated free passes are being given for individuals who utilize the public transportation through the Salt Lake City area. With public transportation now reaching further than ever before, community will take on a much broader interpretation. A real estate lawyer in Utah can depend on for accurate counsel would say this trend will only continue.

Free Initial Consultation with a Lawyer in Utah

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Getting Divorced Later in Life

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Arnold Schwarzenegger and Maria Shriver announced their separation in May after 25 years together. Tipper and Al Gore separated after being married for four decades. Getting divorced after many years together is becoming more normal as time goes on says long time divorce lawyer Mike Anderson.

These long-wedded political couples are far from alone. A U.S. Census report issued earlier this year found that, over time, fewer first-time-married couples are making it to their 25th, 30th and 35th wedding anniversaries—even as life expectancies have increased.

The data don’t indicate how old the couples were when they broke up, says Bradford Wilcox, director of the National Marriage Project at the University of Virginia. But some divorce attorneys and financial planners say they are seeing a growing number of long-married couples call it quits.

As years go by and they get close to retirement age, where they have to be near one another more, one of them realizes they don’t want to live the rest of their life in this manner. We recently drew up divorce papers for a couple who were married 42 years.

Getting Divorced Later in Life

Divorce When You’ve Been Married Awhile

A long-married couple that has done well financially must figure out how to divide investments, pensions and other retirement savings, vacation homes and businesses started by one spouse during the marriage. They must contend with a crazy quilt of regulations—some federal, some state and some set out by retirement plans themselves.

Pulling apart all the fine threads of this tapestry we’ve created is very tedious says a 60-year-old teacher in Utah who was married for 35+ years before she and her husband separated last year.

But dividing a nest egg in a way that allows both spouses to retire without worry is crucial when there is little work time left to make up any shortfall.

Several of our clients are in their 50s and are getting divorced after three decades or more together, — so here’s the truth – a woman who’s 58 years old who’s been out of the work force for 30 years is going to be very different from what we tell a woman in her 30s.

For older women negotiating a financial settlement, “that money has to last the rest of their lives,” he says. “Even if they are employed, there’s usually a huge disparity in what they’re making.” The timing is different and needs are different.

Dividing Assets After 20+ years of Marriage

Splitting up assets like brokerage and bank accounts and insurance policies is relatively straightforward. But some of the largest family assets can be much trickier. Among them:

  • The house. Large family homes have become an albatross for many couples going through divorce after long marriages, Ms. Maier says.

It used to be easy, when the children were grown, for a couple to sell the house. But in the current market, a house could remain for sale for more than a year, causing one more point to negotiate: Is one spouse willing to take the house itself in the settlement, or share in the ongoing expenses to maintain it, with the hope that the market will turn around in a few years?

  • The retirement plan. A couple’s biggest asset, aside from their house, is often the retirement plan. Dividing it fairly could mean the difference for a nonworking spouse between a secure retirement and a hand-to-mouth existence.

Splitting Retirement Plans and QDROS

Pensions, 401(k) accounts and individual retirement accounts are typically titled in one spouse’s name, but they are still considered marital property if they were earned or acquired during the marriage. In the 41 “equitable distribution” states, spouses have the legal right to claim a share. In the remaining “community property” states, both spouses are considered equal owners.

To divide such accounts, you generally have to get a court-issued “qualified domestic relations order,” or QDRO, which spells out what each partner gets. Be sure the QDRO addresses the specific retirement plan in question, because each plan has its own rules, says Wendy Foster, senior vice president of Fidelity Investments’ defined-benefit unit.

In some cases, a judge approves a QDRO but it doesn’t meet a retirement plan’s qualifications, so the plan administrator must send the couple back to court to fix it. It can be very expensive to go back and forth so, to avoid such issues, Fidelity works with its plans to provide model QDROs for participants to use, she says.

It also is important to distinguish between the two types of plans: “Qualified” plans, including 401(k)s and traditional pensions, fall under federal law and can be divided using a QDRO. But “nonqualified” plans that are typically awarded to executives—along with stock options, restricted stock and deferred compensation—aren’t subject to the same rules and may not be able to be divided using a QDRO. You need to make sure those benefits are addressed separately in a settlement.

People negotiating divorce settlements should consider working with an attorney who has extensive QDRO experience, or who hires a specialist—and be wary of attorneys who play down how tricky QDROs are, Mr. Landers says.

  • The family business. Mid- to late-life divorce can cripple a business started during the marriage and owned by one spouse, because the other spouse is generally entitled to a share, Mr. Landers says. Without careful planning, the business might have to be sold to comply with those terms.

We recommend that couples with a small business—especially those with children—enter into a “post-nuptial” agreement that spells out what happens to the business in the event of death and divorce. Such agreements, which are recognized in most states, are increasingly being used in estate planning, particularly for people in second marriages.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Good and Bad of Prenuptial Agreements

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The truth is, marriage is not only a romantic relationship, but also a sort of business relationship. This dual nature and purpose of marriage has led to the increased acknowledgment that a prenuptial agreement (also called a premarital agreement or prenup, for short) can be useful to protect each spouse’s financial interests. If you’re about to get married, or going to get married for a second time, you should talk to a prenuptial agreement attorney so you don’t get screwed. Let’s take a look at the pros and cons of entering into a valid prenuptial agreement based on your state’s laws.

Good and Bad of Prenuptial Agreements

Pros of Prenups

  • A premarital agreement can protect the inheritance rights of children and grandchildren from a previous marriage.
  • If you have your own business or professional practice, a premarital agreement can protect that interest so that the business or practice is not divided and subject to the control or involvement of your former spouse upon divorce.
  • If one spouse has significantly more debt than the other, a premarital agreement can protect the debt-free spouse from having to assume the obligations of the other.
  • If you plan to give up a lucrative career after the marriage, a premarital agreement can ensure that you will be compensated for that sacrifice if the marriage does not last.
  • A premarital agreement can address more than the financial aspects of marriage, and can cover any of the details of decision-making and responsibility sharing to which the parties agree in advance.
  • A premarital agreement can limit the amount of spousal support that one spouse will have to pay the other upon divorce.
  • A premarital agreement can protect the financial interests of older persons, persons who are entering into second or subsequent marriages, and persons with substantial wealth.

Cons of Prenups

  • The agreement may require you to give up your right to inherit from your spouse’s estate when he or she dies. Under the law, you are entitled to a portion of the estate even if your spouse does not include such a provision in his or her will.
  • If you contribute to the continuing success and growth of your spouse’s business or professional practice by entertaining clients or taking care of the home, you may not be entitled to claim a share of the increase in value if you agree otherwise in a premarital agreement. Under the laws of many states, this increase in value would be considered divisible marital property.
  • Starting a relationship with a contract that sets forth the particulars of what will happen upon death or divorce can engender a sense of lack of trust.
  • It can be difficult to project into the future about how potential issues should be handled, and what may seem like an inconsequential compromise in the romantic premarital period may seem more monumental and burdensome later on.
  • A low- or non-wage-earning spouse may not be able to sustain the lifestyle to which he or she has become accustomed during the marriage if the agreement substantially limits the amount of spousal support to which that spouse is entitled.
  • In the “honeymoon” stage of a relationship, one spouse may agree to terms that are not in his or her best interests because he or she is “too in love” to be concerned about the financial aspects and can’t imagine the union coming to an untimely end.

Free Initial Consultation with Prenup Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

What Does an Executor Do?

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Serving as the executor of someone’s last will and testament can be an honor and the most terrifying experience of your life at the same time. By definition, an executor is entrusted with the large responsibility of making sure a person’s last wishes are granted with regards to the disposition of their property and possessions. When it boils down to essentials, an executor of a will is responsible for making sure that any debts and creditors that the deceased had are paid off, and that any remaining money or property is distributed according to their wishes.

What Does an Executor Do

Although the law does not require an executor to be a lawyer or other legal or financial expert, it does require than every executor fulfill their duties with the utmost honest and diligence. The word for this in the law is a “fiduciary duty,” which holds the executor to act in good faith with regards to a person’s will.

An executor is not entitled to proceeds from the sale of property of the estate. Depending on the particular state, generally, an executor is only entitled to a fee as compensation for administering the will. Most states mandate that this fee be reasonable given the size or complexity of the will.

Personal Representative’s Duties

There are many duties that an executor of a will may have to fulfill, depending upon the complexity of the will and the property to be distributed. These duties normally include:

  • Finding the deceased person’s assets. The executor is also responsible for keeping the assets safe until they can be properly distributed to those named in the will or to creditors. This management of assets can include deciding which and what types of assets to sell as well as what kinds of assets and property to keep.
  • Deciding if probating the last will and testament in court is necessary. Probating a will is the process of getting a court to approve the validity of the will. The decision of whether or not to probate a will can often depend upon the laws of the state that the will is going to be administered in, as well as the value of the property that will pass via the will.
  • Finding and contacting the people that were named in a will who are supposed to inherit money or property. The executor is generally in charge of making sure the property that is named in the will goes to the right people.
  • Making sure the will is filed in the appropriate probate court. This is generally required by law even if the will does not need to be probated.
  • Wrapping up the deceased’s affairs. This can include everything from canceling credit cards that are still open to notify a bank about the death of the individual. In addition, if the deceased person was already collecting Social Security benefits, the Social Security Administration should be contacted.
  • Setting up a bank account for the estate. Executors are generally required to keep the estate’s money separate from their own funds. Setting up a bank account in the name of the estate can make paying off debts to creditors easier.
  • Continuing necessary payments. The funds in the estate’s bank account can be used for making mortgage, insurance and other recurring payments that need to be paid during the administration of the will.
  • Paying off debts and creditors. In general, before any person named in a will can receive any inheritance, the deceased debts and creditors need to be paid off. The executor of the will should notify all creditors of the death of the individual and see how they wish to proceed.
  • Paying final income taxes. As the saying goes, the two things that are definite in life are death and taxes, and they even go together. Generally, the executor of a will is responsible for making sure that the deceased’s income taxes for the last year he or she was alive are paid.
  • Ensuring the property distribution of the deceased’s property. Property that is given through a will should be given as it is recorded. However, if there is other property that is not named in the will, it should pass according to the laws of the state.

Note that if there is no will in place, the person in charge is generally called the administrator and will be in charge of determining state law to see who property will pass to in “intestate succession.”

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

When is Probate Unnecessary?

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Probate gets a lot of negative press. You’ve probably heard stories about how time consuming and expensive it can be. Fortunately, not all property needs to go through this legal process before it passes to your heirs. So, you ask, when is probate not necessary?

When is Probate Unnecessary

The quick rule of thumb is probate is not required when the estate is “small”, or the property is designed to pass outside of probate. It doesn’t matter if you leave a will. Let’s take a closer look at each of these exceptions.

Benefits of a Small Estate

Being small can have its advantages when it comes to probate. Most states recognize the complexity of this legal process is unnecessary for transferring a modest estate. So when the deceased’s remaining property is valued below a state-determined amount, assets can be distributed to beneficiaries without going to court. In California for example, an estate valued at $150,000 or less may not need to go to court. In Nebraska, the threshold is $50,000 or less.

Figuring out if your estate qualifies as “small” only takes a few simple steps.

  1. Total up the value of your “individual” property. This typically includes bank accounts, investment accounts, business interests and real estate. The value of your personal effects, such as electronics and artwork, are also factored in. It’s unlikely more disposable items, such as your shoe collection, will be considered.
  2. Subtract the value of property with a co-owner or designated beneficiary. This topic is reviewed in greater detail in the next section. What you need to know for now is that only assets titled in your name alone, and without a listed beneficiary, go to probate. For example, a life insurance policy with a beneficiary is not included in determining your estate value. Neither does a home held as community property.
  3. Determine your state’s small estate threshold: All 50 states and the District of Columbia have laws governing most aspects of estate planning and probate. This includes setting the value of the estates that must go to probate.

Sometime can be a good idea to open probate even when it’s not required, especially if there are concerns over creditor claims or beneficiary disputes. Before relying on the small estate exemption to probate, it’s important to understand the laws of your state and how your assets are valued. Losing a loved one is a difficult time for family and friends. Don’t leave things to chance.

Property that Transfers Outside of Probate

Not all property needs to go through probate. That’s good news for beneficiaries because property that passes outside of probate is distributed much sooner. Assets that typically don’t go through probate fall into the following three categories:

Jointly Owned Property

With the “right of survivorship” avoids the probate process because ownership transfers immediately to the surviving owner(s) after a co-owner’s death. There are few ways to jointly own property that creates this right of survivorship including:

    • Community Property is the property ownership form held by married couples that has the right of survivorship. Be careful, not all states recognize the forms of joint ownership created by marriage or domestic partnerships.
    • Tenancy by the Entirety is a form of ownership only available to legally recognized couples. It works much the same way as a joint tenancy with a right of survivorship, in that effectively upon the death of one spouse, the living spouse takes the deceased spouse’s portion.
    • Joint Tenancy with right of Survivorship In this form you take property as “joint tenants” and upon the death of a joint tenant, the surviving tenant takes the deceased tenant’s portion.

Designated Beneficiary

The designated beneficiary is the person selected to inherit an asset, such as bank account, or the money from a life insurance policy. When you die, assets with a designated beneficiary will immediately transfer to the named person. Naming a beneficiary to many of your accounts simply requires filling out a short form. Assets that can have a named beneficiary include:

        • Bank Accounts stating a “payable on death” (POD) beneficiary
        • Investment accounts noting a “transfer on death” TOD beneficiary
        • Life insurance naming a beneficiary other than the estate of the deceased
        • Retirement Accounts
        • Cars or boats registered in transfer on death form

    Trusts

Trusts are designed to allow your family, friends and causes you care about to inherit from you without having to go through the long and expensive probate process. There are many different types of trusts serving a variety of purposes, including:

      • Revocable Trusts are created during the lifetime of the person making the trust. The trust can be altered, changed, modified or revoked during the maker’s life.
      • Irrevocable Trusts cannot not be altered, changed or modified once made. There trusts are good for passing larger estates and have tax savings properties.
      • A Charitable Trust is made during the grantor’s lifetime. It is often a financial planning tool, often providing the trustmaker or his designated beneficiary with lifetime income with the remainder going to charity.

 

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Name Changes in Utah

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You may be thinking of changing your name for any number of reasons — perhaps you’re getting married or divorced, or maybe you just want a name that suits you better. Whatever the reason, changing your name is a pretty simple process in most places; you can often do it yourself, without the help of a lawyer.

Why Change Your Name

Every year, thousands of people officially change their names. These are some common situations in which people seek a name change:

Name Changes in Utah

Name changes after marriage, divorce, or annulment

A woman may legally keep her birth name when she marries or she may adopt her husband’s surname — and in some states a man can now take his wife’s name as well. A husband and wife can change their last names to a combination of the two or something altogether different. Upon divorce or annulment, a spouse who has been using the other spouse’s name may revert back to a birth or former name. In states where same-sex marriage or its legal equivalent is available, one partner in a same-sex couple may also change his or her last name to the other partner’s, or the couple may hyphenate their name.

Name changes for unmarried couples

A couple need not be legally married to assume the same last name. For example, some same-sex couples choose to use the same last name as part of demonstrating their commitment to one another. The name may be the last name of one member of the couple, a hyphenated combination of the names, or an altogether different name that the couple shares.

Children’s names.

Often, a divorced parent with sole custody of the children wants to make sure the children have the same last name as the parent. If the custodial parent has changed her name since the marriage, she may want to change the children’s names as well. Sometimes legal guardians prefer a child to have their last name. Other times, mature children have a preference for a certain name.

Immigrant names.

Perhaps your great-grandfather changed his name — or had his name changed for him — when he came to the United States in the 1880s. As Americans rediscover their heritages, some want to change back to their original ancestral names. Of course, there is also the reverse situation — for someone who feels no connection with a heavy six-syllable name, shortening the name or changing it altogether may be an attractive idea.

Lifestyle and convenience.

Why be called Suzie, Jennifer, or Robert when you feel that BlackHawk, Randy, or Jon better expresses the real you? You can be as creative as you want in selecting your name—only a few legal limitations exist on choice of name. (These are discussed below.)

Name changes for transgender people.

If you have changed your sex, you may change your name to go with it, as well as your birth certificate under some circumstances.

Religious and political names.

Some people may wish to change their names to reflect religious or political beliefs. Famous political and religious leaders who have done this include Mother Teresa and Malcolm X.

Restrictions on Changing Your Name

There are some restrictions on what you may choose as your new name. Generally, the limits are as follows:

  • You cannot choose a name with fraudulent intent — meaning you intend to do something illegal. For example, you cannot legally change your name to avoid paying debts, keep from getting sued, or get away with a crime.
  • Your new name cannot interfere with the rights of others, which generally is defined as choosing the name of a famous person with the intent to mislead. For example, most judges will not approve your renaming yourself George Bush or Barack Obama unless you have a convincing reason not related to the famous politicians.
  • You cannot use a name that would be intentionally confusing. This might be a number or punctuation — for example, “10,” “III,” or “?.” (Minnesota’s Supreme Court once ruled that a man who wanted to change his name to the number “1069” could not legally do so, but suggested that “Ten Sixty-Nine” might be acceptable.)
  • You cannot choose a name that is a racial slur.
  • You cannot choose a name that could be considered a “fighting word,” which includes threatening or obscene words, or words likely to incite violence.

How to Change Your Name

In many cases, such as when you are getting married, divorced, or adopting a child, your name change can be easily handled as part of those legal proceedings. For example, if you are getting married and want to take your spouse’s name, you can use a certified copy of your marriage certificate to prove your new name. For name changes obtained during other legal proceedings, you can prove your new name using an order signed by the judge.

If your name change isn’t part of another legal proceeding, how to proceed depends on the rules in your state. Traditionally, most states allowed people to change their names by usage, without going to court. A name change by usage is accomplished by consistently using a new name in all aspects of your personal, social, and business life for a significant period of time. No court action is necessary, and it is free.

Practically speaking, however, you will probably want to get an official court document changing your name. In this day and age, with concerns about identity theft and national security, having a court order will make it much easier to get everyone to accept your new name. In fact, you won’t be able to get certain types of identification – such as a new Social Security card, passport, or (in most states) driver’s license – without a court document.

You can find out what your state requires by contacting your local clerk of court. Many state and county courts have name change information and forms on their websites. Check out the “Courts” or “Judiciary” section of your state’s or county’s home page.

Once you’ve completed your name change, you need to make sure you let all the relevant people and agencies know about your new name.

Your next best step is to talk to a family lawyer because that is who regularly goes to court and get this type of work done.

Free Initial Consultation with a Name Change Lawyer in Utah

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Child Custody and Taxes

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When you and your spouse decide to call it quits, you’re more worried about you’re your children will think than what the IRS will think. That’s only natural — when parents are dealing with custody issues, often the furthest thing from their minds is how it will affect their tax status. When is comes to child custody, you want to make sure you do things right. So, if you want to avoid serious tax penalties, or reap significant tax benefits, it’s better to figure it out sooner than later.

Child Custody and Taxes

Tax Benefits For Claiming a Dependent Child

There are numerous standard tax benefits to claiming a child as a dependent:

  • The exemption for the child;
  • The child tax credit;
  • Head of household filing status;
  • The credit for child and dependent care expenses;
  • The exclusion from income for dependent care benefits; and
  • The earned income credit.

However, the rules are more complicated for divorced or separated parents. If you claim your child as a dependent, you cannot split these benefits with the other parent, even by your own agreement.

Can Both Parents Claim a Dependent Child?

The dependency exemption cannot be split. Generally, the custodial parent is treated as the parent who provided more than half of the child’s support. This parent is usually allowed to claim the exemption for the child if the other exemption tests are met. However, the noncustodial parent may be treated as the parent who provided more than half of the child’s support if certain conditions are met.

The custodial parent can sign a Form 8332 Release of Claim to Exemption for Child of Divorced or Separated Parents, or a substantially similar statement, and provide it to the noncustodial parent who attaches it to his or her return. Please beware that if the custodial parent releases the exception, the custodial parent may not claim the Child Tax Credit.

How Does the IRS Decide Which Parent Gets the Benefits?

To determine which parent can treat the child as a qualifying child in order to claim tax benefits, IRS rules employ the following tiebreakers:

    • If only one of you is the child’s parent, the child is treated as the qualifying child of the parent;
    • If you do not file a joint return together but both of you claim the child as a qualifying child, the IRS will choose the parent with whom the child lived for the longer period of time during the year. If the child lived with both of you for the same amount of time, the IRS will choose the parent who had the higher adjusted gross income (AGI) for the year;
    • If no parent can claim the child as a qualifying child, the child is treated as the qualifying child of the person who had the highest AGI for the year;
    • If a parent can claim the child as a qualifying child but no parent does so claim the child, the child is treated as the qualifying child of the person who had the highest AGI for the year.
    • However, please remember that although the IRS has these standards, a State Court Order can trump who gets to claim the child for tax deduction purposes.  For this reason, you need to speak with a family lawyer before you make a mistake and end up having contempt charges brought against you for violating a court order.

How Do Court Custody Orders Affect Deductions?

IRS Publication 504 covers who may claim a dependency exemption, and how, following a divorce or separation. Regardless of what the custody orders the court has issued, federal law determines your federal tax status. Therefore, the IRS requirements supersede a county or state court order.

More Child Custody Information

It is never easy navigating child custody or tax matters. You might find it valuable to talk with an experienced tax attorney or child custody attorney about your particular case.

Free Consultation with Child Custody Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will aggressively fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Agency Adoptions in Utah

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There are a number of benefits that come with choosing an agency to help with your adoption. For instance, agencies typically are skilled at matching children to families in addition to being familiar with the various legal matters that go along with adoption. In most instances, an adoption agency can help prospective parents with a wide range of services, such as finding the biological parent of the child to organizing and filing the adoption paperwork. In addition, adoption agencies can help with home inspections, getting the necessary consents, and even helping parents understand various state laws that deal with adoptions.

Agency Adoptions in Utah

Private and Public Adoption Agencies

Most adoption agencies can be broken down into two categories—private and public. Each has its advantages and disadvantages, so review your options carefully before deciding.

Private Adoption Agencies

One of the main benefits of a private adoption agency is that it will provide the extensive counseling that normally goes along with adoptions: for adoptive parents, children (if old enough), and even the biological parents of the child. In addition to helping smooth the transition to a new family, counseling has the benefit of protecting the adoptive parent later on in the process. Generally, biological parents who do not receive counseling have a higher probability of not signing the paperwork when it comes time for the adoption to take place.

However, there are also disadvantages to private agencies. Private agencies are often very selective when it comes to the parents that they work with, since there are many parents looking to adopt, so the private agencies can be choosy. In addition, private agencies usually only find infants or pregnant women that do not want their babies. This means that there are generally few non-infant children adopted through private agencies. They use many screening factors to pick and choose which parents they like to work with. Typically, these factors include:

  • Age
  • Marital status
  • Income
  • Health
  • Religion
  • Sexual orientation
  • Personal history
  • Family size

Public Adoption Agencies

Unlike private agencies, public agencies normally have many children that need to be adopted. Many of these children are older, having spent their lives in various group homes and foster families, or have special needs (history of abuse, born to drug-addicted mothers, etc.). We outline the Adoption Process in Utah in other articles as well as explain the costs of adoption here.

Couples looking to adopt a newborn baby or an infant may want to look into private agencies. Additionally, public agencies often don’t have the resources to provide other services, such as counseling, that help the adoption process. But with fewer services, public agencies can charge much less than private adoption agencies. Adopting through a public agency may even be free, or the agency could even provide you with a small stipend during the process, whereas private agencies can cost tens if not hundreds of thousands of dollars.

Parents that use agencies to adopt will generally find the process much easier if they retain the services of an attorney with experience filling out adoption paperwork. Even though there is no requirement for legal counsel during the adoption hearings, it may be useful as hearings often become legally complex. You should look for an attorney who has dealt with a number of adoption proceedings and has some experience with contested adoptions, as well.

Expenses of Agency Adoptions

If you choose a private agency for your adoption, you can expect to pay a high premium for their services. If you have been matched with a pregnant woman through the agency, you may end up paying for the medical and living expenses of the mother during her pregnancy.

How much a private agency will charge for an adoption is determined by their fee structure. Some agencies charge a flat fee for each adoption. This fee can vary, depending on the age of the child. However, according to some sources, an adoption through a private agency can cost anywhere between $5,000 and $40,000.

If you choose to go through a public agency for your adoption, you will probably not be required to pay any fees, as these agencies typically receive their funding through the state.

Finally, aside from adoption agency fees, keep in mind that you may still have to hire and pay an attorney to prepare the adoption paperwork and attend court for your adoption proceedings. Paying an attorney anywhere between $50 and $500 an hour will add to the cost of your adoption.

Waiting Period and Agency Adoptions

Some agencies  require a waiting period before a child can be placed in the home of his new adoptive parents. This waiting period is usually in place to ensure that all the necessary consents have been given and signed and for any other formalities to be taken care of. During this waiting period, the child may be placed in foster care, depending on state law. Many adoptive parents do not want their child to go into foster care and often opt for a “legal risk placement.” This is where the child is placed in the new home despite not having all the consents given. The downside here is that if the birth mother decides not to give her consent, the child will removed from the adoptive home.

Finding the Right Adoption Agency

There are thousands of adoption agencies to choose from across the U.S. If you live in a densely populated state, like California, you will have more options than if you live in a less densely populated state. A good place to start when searching for an agency is the Child Welfare Information Gateway. In addition, if you know anyone that adopted through an agency, it would be good to talk with them to discuss their experience.

If you have found an agency that you think might work for you, be sure to check their reputation as well as accreditation. Your state should have a licensing department for adoption agencies, which you can check to make sure the adoption agency’s license is current and under no conditions.

International Adoptions

There are a number of American adoption agencies specializing in international adoptions. Even though you are allowed to directly adopt from a foreign country, many people choose to go through an agency, as it can be quite difficult and risky to do it yourself. Agencies that specialize in international adoptions will know the relevant immigration laws as well as the laws of the foreign nation that you are adopting from.

According to the immigration laws of the United States, any parents seeking to adopt from another nation must either be married or single and over the age of 25. Additionally, the parents seeking to adopt must file a Orphan Petition form with the United States Citizen and Immigration Service (USCIS) to show that the child’s parents have died, disappeared or abandoned the child, or that the one remaining parent cannot care for the child and consents to the adoption. If the foreign child has two parents, he or she cannot qualify for international adoption.

In addition to the Orphan Petition, there are some other documents that you will need to submit before you can proceed with an international adoption. One of these documents must be a favorable home study report from the adoption agency. If the USCIS approves your petition (and there are no other factors that will stop the adoption), you can proceed to get the child an immigration visa.

One of the advantages of international adoption is that much of the required paperwork can be completed even before you have been matched with a child. Indeed, it is often a good idea to complete the paperwork before you select the child because it can delay the adoption process if you wait to file it.

Finally, some states have their own pre-adoption laws. For instance, some states require the written consent of the birth mother before the state will approve the entry of the child into the state. To this end, some adoption agencies recommend that parents who adopt from another nation also adopt under state laws when the child enters the state. By doing so, the child should also get a birth certificate that is in English.

Free Consultation with an Adoption Lawyer

If you have a question about an adoption or if you need a lawyer in Utah, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506