Saturday, 4 August 2018

Annulments

While a divorce is a legal action that officially ends a marriage, an annulment is an action in which the marriage is considered to have never been valid in the first place. This is the main reason you should talk to an annulment lawyer because an annulment may be much better from you and a divorce. Thus, a couple that has obtained an annulment would be considered to have never been legally married in the eyes of the law. We’ve also talked about annulments here.

Annulments

It is much more difficult to obtain an annulment than a divorce. To get an annulment, you must prove at least one of the following existed:

  • Bigamy: One of the parties was already married to another person at the time the marriage occurred.
  • Lack of consummation: Either party to the marriage was “incurably unable” to have sexual intercourse when the marriage began.
  • Insanity: Either spouse became incurably insane for at least five years after the marriage.
  • Lack of capacity: One of the spouses lacked the ability to understand the consequences, nature or effect of marriage because of his or her mental capacity. This could be due to drug or alcohol use or a mental disability or disorder.
  • Duress: One of the spouses only agreed to the marriage because he or she was forced or otherwise under duress at the time.
  • Fraud: The marriage consent was obtained by some form of fraud that could have reasonably deceived a typically prudent person, and that fraud was material to obtaining consent. This could involve the concealment of a person’s actual identity. This is the most common ground used to obtain annulments.

Selling Your Home in a Divorce

Selling a home in even the best circumstances can be stressful – and selling as part of a divorce settlement can be especially complicated.

One spouse may focus on maximizing profits, for instance, while the other just wants the sale over with. And combative spouses sometimes want to get their last digs in by impeding the sale. Your settlement should detail each party’s rights and responsibilities – plus the consequences of non-cooperation.

Here are a few “Dos and Don’ts” to ease the process:

  • Do specify how maintenance and repair costs – including those called for in the sales contract — are handled. This will help keep the home in good condition and prevent inspection issues from sidetracking a sale.
  • Don’t advertise that the home is part of a divorce settlement. Buyers might assume extra motivation and be willing to pay less – or simply run away from the potential complications.
  • Do keep the home in showing condition and make every effort to make it available for requested showings, if you are the custodial spouse.
  • Don’t do anything to damage the property or otherwise sabotage the sale. At the very least, it’s unfair to buyers, realtors and attorneys who are just trying to do their part. At the extreme, you could be subject to legal and financial ramifications for obstructing the court-ordered sale.
  • Do give a copy of your divorce decree to the settlement agent so the proceeds can be divided at closing.

These Tips Can Help Make for a More Successful Second Marriage

The statistics don’t lie: second and subsequent marriages are far more likely to end in divorce than first marriages. So what can people marrying for the second time do to minimize the likelihood of another divorce?

The following are a few tips from relationship experts:

  • Take it slow: Too many second marriages fail because people rush into the marriage without taking time to spend some time alone and then truly get to know their new partner. Take plenty of time to clearly identify what it is you want out of a partner.
  • Set your expectations realistically: It’s common for people in second marriages to have unrealistic expectations or views of their partner as a person who is truly “the one” who will make up for their failed marriage the first time around. You must be realistic with your expectations of any relationship.
  • Be willing to compromise: It’s easier as we get older to feel as though compromising is actually giving up what we want — or giving control of our lives to another person. In reality, no matter how old you are, compromise is a cornerstone of a strong relationship. You cannot hope to succeed in your second marriage if you do not compromise.
  • Be upfront about your baggage: Your partner should know about all the baggage you are bringing into the new relationship, and there should be realistic expectations related to how you will be able to overcome this baggage together. If both of you are coming from failed first marriages, this is especially important.
  • Don’t let your past marriage dictate your new one: When disagreements or arguments occur, it’s all too easy to react based on things that happened in your previous relationship. Instead, you must react based on present circumstances. Doing otherwise is unfair to your current partner.

Free Initial Consultation with 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
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Friday, 3 August 2018

Chapter 13 Bankruptcy

Chapter 13 Bankruptcy

How do I file for Chapter 13 bankruptcy?

According to Chapter 13 bankruptcy rules, it is necessary for a debtor to attend credit counseling prior to filing for bankruptcy. After the completion of counseling, the debtor must pay a fee and provide the bankruptcy court with information about income, debt, expenses, and creditor holdings of secured and unsecured debt. Once the court receives the appropriate paperwork, a trustee will review the case. The trustee will request information from the debtor, communicate with creditors, and hold a creditors meeting. The debtor is also responsible for filing a repayment plan with the court. Once the bankruptcy court approves the repayment plan, Chapter 13 bankruptcy is complete.

Does filing for Chapter 13 bankruptcy stop creditors from collecting a debt?

Chapter 13 bankruptcy rules state that a creditor may no longer pursue collection activities when a debtor files for bankruptcy. As soon as debtor files the appropriate paperwork and pays the filing fee, an automatic stay takes effect. An automatic stay prohibits creditors from further attempts to collect a debt. This means that any lawsuit proceedings must cease, a creditor may not report the debt to credit reporting agencies, and the debtor’s property and income are safe from seizure. Collection activities may continue for spousal and child support, tax debt, and pension loans, however.

Will a Chapter 13 bankruptcy erase my student loan?

No.

A bankruptcy court will require repayment of your student loan debt. Chapter 13 bankruptcy rules treat student loan debt similar to priority debt–it is payable in full like back taxes and child support payments. Prior to 2005, student loan debt was only dischargeable when funded by a private lender. With the passage of the Bankruptcy Abuse Prevention and Consumer Protection Act, however, privately funded student loans are now treated the same as student loans guaranteed or issued by the federal government. This means that all student loan debt is only dischargeable upon a showing of undue hardship.

Typically, it is difficult to convince a bankruptcy court to discharge student loan debt. A bankruptcy court will consider such factors as poverty, the inability to pay the loan due to a permanent disability, and a debtor’s good-faith effort to repay the loan for a long period. To have a student loan debt dismissed, a debtor must file a separate action in bankruptcy court called a Complaint to Determine Dischargeability of a Debt.

If I miss a scheduled payment under my Chapter 13 repayment plan, can a creditor sue me?

If a debtor misses a scheduled payment, Chapter 13 bankruptcy rules allow the trustee to institute an action for dismissal with the bankruptcy court. Because the debtor agreed to repay creditors according to a court-approved Chapter 13 repayment plan, a trustee may request the dismissal of the case once those creditors are no longer receiving payments. A debtor may be able to prevent the dismissal of a case by establishing their ability to repay the debt under the current plan or by requesting that the court approve a new plan.

If the bankruptcy court dismisses the case, a creditor may reinstitute collection activities against the debtor. Bankruptcy laws that prohibit collection attempts no longer protect the debtor at this point. Consequently, creditors may collect the current amount owed on the debt and any interest on the debt that accrued while the debtor was in bankruptcy.

Changes to the Bankruptcy Law

In 2005, new bankruptcy laws required potential bankruptcy individuals to be involved in courses educating and informing them of their financial options. Before an individual files for a Chapter 13 or Chapter 7 bankruptcy, you must receive credit counseling from an approved agency. Any Chapter 7 Lawyer will tell you that it’s required. In addition, before a bankruptcy is discharged, the individual must attain a personal finance management course known as debtor education.

Do I have to get Credit Counseling?

The purpose of credit counseling is to assist an individual’s evaluate his or her financial options and to determine if he or she can repay debts through a repayment plan without filing bankruptcy. In credit counseling, the individual will usually provide information regarding his or her income, expenses, and debts. The counselor then evaluates the information and proposes a repayment plan.

Personal Financial Management and Debtor Education

Debtor education information is meant to instruct individuals to be responsible with their finances. The education is meant for the individual to learn from his or her mistakes and never be in the postion to file bankruptcy again. A debtor education course will usually provide tips in developing a budget, managing finances, using credit responsibly, and how to deal with financial emergencies.

As part of the new bankruptcy laws, people wishing to file for bankruptcy (under Chapter 7 or Chapter 13) must now complete a credit counseling program before they will be allowed to file a bankruptcy petition. In addition, bankruptcy filers must obtain debt management counseling before being allowed to complete the bankruptcy process. In order to comply with these credit counseling and post-discharge debtor education requirements, filers must work with agencies that have been approved by the U.S. Trustee Program (a branch of the U.S. Department of Justice that is responsible for overseeing bankruptcy cases).

Two lists of agencies that have been approved by the Department of Justice — the first a list of agencies that provide pre-filing credit counseling to those wishing to file for bankruptcy, and the second a list of agencies that offer post-discharge debtor education to people who are completing the bankruptcy process. The third link below includes tips on choosing a credit counselor, from the Federal Trade Commission (FTC).

On April 15, 2013, the Executive Office for U.S. Trustees (EOUST) announced new policies on credit counseling and debtor education requirements. The list below is some notable new rules.

• Quality – The quality of counseling must be consistent whether the debtor takes the course on the Internet, in person, and over the phone. In addition, the counseling must not be generic but individually specific to the debtor.

• Use the Cheapest One – Credit counseling agencies and debtor education information providers must charge a reasonable fee that is $15 or less. An individual’s income that falls 150% below the poverty line is eligible for a fee waiver. We reccomend that you use Debtorcc.org – they are fast and the cheapest one that we could find.

Is credit card debt included in a Chapter 13 bankruptcy plan?

To qualify for Chapter 13 bankruptcy, a debtor must repay all secured creditors and priority debts in full and must repay a portion of the amount owed to unsecured creditors. “Secured debt” is a debt obligation backed by collateral such as a car or real property; “priority debt” includes child support payments and back taxes; and “unsecured debt” are those obligations that are not backed by collateral. Unsecured debt includes money owed on a credit card.

A Chapter 13 bankruptcy places a filer’s debt into a repayment plan. A bankruptcy court will not approve a plan unless the arrangement requires that the debtor repay all priority and secured debt in full. The repayment plan must also require the debtor to repay unsecured creditors in an amount equal in value to the filer’s nonexempt property. Nonexempt property includes any interest held in real property, business assets, and artwork. Once a Chapter 13 repayment plan begins, a trustee will disburse the monthly payment made by the debtor to the creditors each month.

Free Consultation with Bankruptcy Lawyer

If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. Attorneys in our office have filed over a thousand cases. We can help you now. Come in or call in for your free initial consultation.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Estate Planning Terms

Estate Planning Terms

Terminology related to probate law can be confusing and downright archaic. No wonder. The first mentions of estate planning and probate court come from medieval times, dating back to the days when the United States didn’t exist. Our laws go all the way back to England in the year 1000! Following is an explanation of commonly used words and phrases related to estate planning and probate.

AB Trust – A trust designed to make sure the personal estate tax exemption of each spouse (currently $1.5 million) is used to the fullest extent possible, while allowing the surviving spouse to have use of the assets of the deceased spouse during the remainder of the surviving spouse’s lifetime.

Administrator – A court-appointed person who manages the estate of a deceased person who has died without a will.

Attorney-in-Fact – An individual designated in a power of attorney to act as the agent of the person who executed the document.

Basic Will – A will that distributes everything to your spouse, if living, otherwise to your children when they reach the age of majority (18 years old).

Beneficiary – A person who receives funds, property, or other benefits from a will, contract, or insurance policy.

Durable Power of Attorney for Health Care – A written document in which an individual designates another person to make health care and health-related decisions in the event that the individual becomes incapacitated.

Durable Power of Attorney for Property – A written document in which an individual designates another person to make his or her property and property-related decisions in the event that the individual becomes incapacitated and is unable to do so.

Estate – An individual’s property and assets — including real estate, bank accounts, life insurance policies, stocks, and personal property such as automobiles and jewelry.

Estate Tax – A tax that is imposed at a person’s death, on the transfers of some types of property from their estate to heirs and beneficiaries.

Executor – A person named in a will who is authorized to manage the estate of the deceased person. The executor will collect the property, pay off any debts, and distribute property and assets according to the terms of the will.

Fiduciary – A person or institution that is legally responsible for the management, investment, and distribution of funds; i.e. the trustee identified in a trust.

Grantor – A person who transfers assets to another, usually into a trust.

Guardian – An individual with the legal authority to care for another, usually a minor child.

Incapacity – A person’s inability to act on his or her own behalf, i.e. the “sound mind” requirement for drafting a valid will. A court makes a finding of incapacity.

Inter vivos trust – A trust that is created during a person’s lifetime, which holds property for the benefit of another.

Intestate – A term used when a person dies without a will.

Joint Tenancy With Right of Survivorship – A title that is often placed on co-owned property. At the death of one owner, the other owner will be legally entitled to sole possession of the property, regardless of what provisions are made in a will. Spouses often use this form of ownership.

Living Trust – A revocable trust established during a grantor’s lifetime that is used for the placement of some or all of the grantor’s property. In a situation involving a married couple, a basic living trust does not effectively use the personal estate tax exemption of either spouse (the amount of a deceased person’s estate that may pass to his or her heirs without estate taxes, currently $1.5 million). Because of this deficiency of a basic living trust, an AB Trust (discussed above) is often recommended instead to married couples with substantial assets.

Living Will – A binding legal document that sets forth a person’s wishes regarding the use of life-sustaining treatment in the event that he or she becomes terminally ill or permanently unconscious.

Marital Deduction – A federal tax deduction that allows one spouse to pass his or her estate to the other spouse without having to pay estate or gift taxes.

No Will – A decedent dies without a valid will, so that his or her estate passes to heirs based on the laws of descent and distribution of his or her state.

Pour-Over Will – A will that distributes everything to a trust.

Power of Appointment – A legal right given to a person in order to allow him or her to decide how to distribute a deceased person’s property. A “general” power of appointment places no restrictions on the named person, while a “limited” or “special” power of appointment places restrictions on who may receive distributions.

Power of Attorney – A written document that gives one person the legal authority to act on behalf of another person.

Probate – A process whereby a court reviews a will to make sure that it is authentic, and allows others to make legal challenges to the will.

QTIP Trust – A trust designed to permit a spouse to transfer assets to his/her trust while still maintaining control over the ultimate disposition of those assets at the spouse’s death. QTIP Trusts are particularly popular in situations where a person is married for a second time but has children from a first marriage for whom he/she wants to reserve assets.

State Death or Inheritance Taxes – Taxes that may be imposed by the state where a deceased person lived, or where his or her property is located after death.

Trust – A written document providing that property be held by one (the “trustee”) for the benefit of another (the “beneficiary”). A trust may be created during the grantor’s lifetime or after his or her death.

Trustee – A person named in a trust document who will manage property owned by the trust, and distribute the trust income or property according to the terms of the trust document. A trustee may be an individual or a business.

Will – A document that directs how property shall be distributed upon a deceased persons death.

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have an estate plannning or probate law 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
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Thursday, 2 August 2018

Documents to Bring to Divorce Lawyer

Your divorce lawyer is there to help you through the divorce process. To assist you, your attorney needs to obtain a full picture of your situation. Why you want a divorce, what you expect out of one, and a snapshot of your financial situation are key to helping your lawyer understand how best to advise you on moving forward with your divorce. Before you meet with your lawyer, ask yourself some questions and examine your situation.

Documents to Bring to Divorce Lawyer

Your first meeting with your attorney will serve to flesh out your situation. Your lawyer will ask questions to obtain an understanding of your case. You need to express your intentions and answer honestly.

You should bring the following with you to help your lawyer understand and prepare your case:

  • Your contact information, including home and work addresses and phone numbers
  • Certificate of marriage
  • Pay stubs
  • Loan information, including any car loans
  • Tax returns
  • Information on mortgages
  • Any prenuptial agreement
  • Bank account numbers and statements
  • Adoption decrees, if any children are adopted
  • Credit card statements
  • Deeds of properties
  • Pension information
  • Trust information
  • A list of extremely valuable assets, such as art or jewelry

Your lawyer may request you bring other documentation, depending on your circumstances. Gathering this information and providing it to your attorney saves time in preparing your case and is a cost-effective measure.

Does Utah Still Have Lifetime Alimony?

Utah State recently reformed many aspects of its Domestic Relations Law, including rules for permanent alimony. The new law creates an advisory schedule for the duration of permanent alimony based on the length of the marriage:

  • From 0 up to and including 15 years — Alimony may last anywhere from 15 percent to 30 percent of the marriage’s length.
  • More than 15 up to and including 20 years — Alimony may last anywhere from 30 to 40 percent of the marriage’s length.
  • More than 20 years — Alimony may last anywhere from 35 to 50 percent of the marriage’s length.

The court is not required to follow this schedule and may consider other factors, listed elsewhere in the law, as the bases for deciding the alimony amount. A judge who declines to use the schedule must present a written decision citing the factors considered. When setting the duration of alimony, the court must also consider the impact that retirement might have on the available assets and benefits. Alimony of any duration terminates upon the passing of one of the spouses.

The new law seems to favor very short terms of spousal maintenance for marriages of short duration, while setting a maximum recommended term of 10 years. Since the law is new, it’s impossible to say how heavily judges will rely on the new schedule. However, the law does leave open the possibility of lifetime alimony in cases the court finds appropriate.

When Assets Go to Waste in Divorce

Which of these examples would be considered marital waste?

  • Upon being asked for a divorce, a spouse goes on a spending spree, running up the balance on jointly held credit cards.
  • Throughout the marriage, a spouse drinks to excess and gambles away the proceeds of an investment account held by the couple.
  • A couple separates when one spouse learns the other has been having an affair for several years, using marital monies to fund the relationship.

The answer is all of them. The marital estate comprises the possessions, assets, goods and liabilities a couple brings to the table during a divorce. In Utah, property is divided equitably. Reaching an agreement with your spouse during divorce that divides assets fairly benefits you both. Failing to do so means the court will divide your assets.

Sometimes a spouse unfairly uses, loses or wastes value of the marital estate. The court looks at marital waste as wasteful dissipation of marital assets and takes the unjust use of assets into account when making decisions about the division of property.

While some cases of marital waste seem obvious, others are less so. If one spouse takes out a business loan, struggles to make the enterprise work and loses the business in the end, the marital estate is diminished and possibly saddled with debt. Nevertheless, the undertaking was done in good faith with the idea of improving the economic condition of the couple.

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 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
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Adoption Taxpayer Identification Number

The following questions and answers will provide information to taxpayers who need a taxpayer identification number for a child who has been placed in their home pending final adoption.

Adoption Taxpayer Identification Number

Q: What is an Adoption Taxpayer Identification Number?

A: An Adoption Taxpayer Identification Number (ATIN) is issued by the Internal Revenue Service as a temporary taxpayer identification number for the child in a domestic adoption where the adopting taxpayers do not have and/or are unable to obtain the child’s Social Security Number (SSN). The ATIN is to be used by the adopting taxpayers on their Federal Income Tax return to identify the child while final domestic adoption is pending.

Q: Who needs an ATIN?

A: If you are in the process of adopting a child and are able to claim the child as your dependent or are able to claim a child care credit, you may need an ATIN for your adoptive child.

Q: Why do I need an ATIN?

A: Recent tax law changes require that when you list a person’s name on your federal income tax return, you must provide a valid identifying number for that person. During the adoption process, you may not have been able to obtain an existing or a new Social Security Number (SSN) for the child who may already have been placed in your home. If you are eligible to claim the child as your dependent, and you don’t have the child’s SSN, then you will need to request an ATIN in order to claim the child as a dependent and ( if eligible) to claim the child care credit.

Q: How do I know if I should apply for an ATIN?

A: You should apply for an ATIN only if you are in the process of adopting a child and you meet all of the following qualifications:

  1. The adoption is a domestic adoption.
  2. The child is legally placed in your home for adoption by a authorized adoption agency/agent.
  3. The adoption is not yet final, and you are unable to obtain the child’s existing SSN or you are unable to apply for a new SSN for the child pending the finalization of the adoption.
  4. You qualify to claim the child as a dependent.

Q: Can I get an ATIN if I am adopting a child from another country?

A: No. You should apply through the Social Security Administration (SSA) for a valid SSN. When you are adopting a foreign child, upon the child’s entry into the United States you should receive enough documentation from the Immigration and Naturalization Service (INS) to satisfy the Social Security Administration’s requirements for a SSN.

Q: I meet the requirements to apply for an ATIN. What form do I use to apply?

A: The Form W-7A, Application for Taxpayer Identification Number for Pending Adoptions, is used by qualifying taxpayers to obtain an ATIN. To get Form W-7A, you may go to any IRS walk-in site or call 1-800-829-3676. You may also download the form from the IRS website in Adobe PDF format.

Q: How long is the ATIN valid?

A: As soon as the adoption becomes final, the adopting parents should obtain an SSN for the child and notify the IRS of the new SSN. When the IRS is notified of a new SSN for the adopted child, it will deactivate the ATIN. If the adopting parents do not notify the IRS within two years, the ATIN will be automatically deactivated.

Free Consultation with Adoption Lawyer in Utah

If you have a question about a stepchild 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
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Wednesday, 1 August 2018

Divorce and Credit Cards

In some cases, a divorce court may include stipulations stating that one spouse is responsible for paying debt on credit cards that were taken out in their former spouse’s name. Of course, the concern then becomes that the ex-spouse will take advantage of this arrangement and rack up massive bills in the hopes that you will not notice and will be responsible for these new payments, even if you are only legally responsible for paying off existing marital debt.

Divorce and Credit Cards

This can be a difficult issue to navigate, depending on how receptive and helpful the credit card company is. You might, for example, request to have all bills sent directly to you so you can see how much you owe and what is being charged (and when). However, credit card companies do have privacy rules you will need to navigate, and if the cards were taken out in your spouse’s name, it can be hard to get that information. You might also find it hard to close out accounts that aren’t in your name, especially if your former partner is being uncooperative.

What should you do about credit card debt?

Of course, it’s still important that you take the necessary steps to ensure you aren’t paying for anything more than the debts for which you are legally responsible through your divorce decree. The credit card companies don’t care where the money is coming from — they just want to be paid. So your best option is to go back through the court system.

Visit the judge who handed down your divorce decree. Ask the judge to order your former partner to deliver all copies of credit card statements to you immediately. This will provide you with accurate information about charges that were incurred during the course of the marriage and could also pave the way for you to be repaid if you paid anything more than what was necessary.

My Spouse is Disobeying Direct Court Orders — Now What?

Most of the time, you can trust that if a court hands down direct orders to your spouse on a divorce-related issue, that spouse will comply. However, there are plenty of circumstances in which divorcing spouses will either violate court orders or fail to obey them entirely. What do you do if this becomes an issue in your case?

If you let your spouse get away with violating a court order once, there’s nothing stopping them from trying to do it again and again. Therefore, if your spouse violates an order, it’s important to address it immediately. Contact your attorney as soon as you can and have him or her send a letter to your spouse (or your spouse’s attorney) to resolve the issue right away.

Additional steps may be necessary

If the letter route doesn’t work, you are going to have to go to the court to have the order enforced. Your attorney will file a document called a “motion to enforce a court order,” which serves as a written request for the court to intervene in the case. At this point, the judge could proceed in any of several ways:

  • Demanding your spouse follow the order immediately
  • Requiring your spouse to completely fulfill their obligations on overdue payments
  • Holding your spouse in contempt of court for a failure to meet the obligations of the original court order, which could result in fines or jailing (depending on the circumstances)
  • Ordering your spouse to pay you back for any attorney’s fees and other costs you incurred due to bringing the motion

There are some situations in which urgent matters might require immediate court attention, but in most cases, this is how you can expect matters to proceed if you’re dealing with an uncooperative individual.

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 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
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Probate Basics

The legal process of transferring of property upon a person’s death is known as “probate.” Although probate customs and laws have changed over time, the purpose has remained much the same: people formalize their intentions as to the transfer of their property at the time of their death (typically in a will), their property is collected, certain debts are paid from the estate, and the property is distributed.

Probate Basics

Probate Administration

Today the probate process is a court-supervised process that is designed to sort out the transfer of a person’s property at death. Property subject to the probate process is that owned by a person at death, which does not pass to others by designation or ownership (i.e. life insurance policies and “payable on death” bank accounts). A common expression you may have heard is “probating a will.” This describes the process by which a person shows the court that the decedent (the person who died) followed all legal formalities in drafting his or her will. What is often taught about the probate process is how to avoid it.

The movement to avoid probate is primarily motivated by the desire to avoid probate fees. It is, in fact, quite possible to avoid the probate process completely. There are three primary ways to avoid probate and its protections: joint ownership with the right of survivorship, gifts, and revocable trusts. The probate system, however, exists for the protection of all the parties involved and the focus of this article is what occurs in probate.

What Happens in Probate?

The probate process may be contested or uncontested. Most contested issues generally arise in the probate process because a disgruntled heir is seeking a larger share of the decedent’s property than that he or she actually received. Arguments often raised include: the decedent may have been improperly influenced in making gifts, the decedent did not know what they were doing (insufficient mental capacity) at the time the will was executed, and the decedent did not follow the necessary legal formalities in drafting his or her will. The majority of probated estates, however, are uncontested. The basic process of probating an estate includes:

  • Collecting all probate property of the decedent;
  • Paying all debts, claims and taxes owed by the estate;
  • Collecting all rights to income, dividends, etc.;
  • Settling any disputes; and
  • Distributing or transferring the remaining property to the heirs.

Usually, the decedent names a person (executor) to take over the management of his or her affairs upon death. If the decedent fails to name an executor, the court will appoint a personal representative, or administrator, to settle the estate. The administrator will fulfill many of the same duties listed above.

Typically, people may leave property to any person they wish, and may make such designations in their will. However, in certain situations, depending on the relationship to the decedent and the laws of the state, the decedent’s wishes may have to be overridden by the court. For example, in most states, a spouse is entitled to a certain amount of property. Furthermore, creditors may have a claim on the property of the estate. Each jurisdiction usually prescribes how long an estate must be open to give creditors an adequate time frame in which to present claims to the estate. The more complex and sizable the estate, the longer and more time-consuming this process can be.

The probate process itself also carries with it a number of costs that are usually paid out of estate assets. These costs include:

  • Fees of the personal representative;
  • Attorneys’ fees; and
  • Court costs.

Why Do I Need a Will?

A will is simply a formal way of setting forth your wishes regarding how you would like your property distributed upon your death. You should consider a will whether you are single, married, have minor children, or own even a small amount of personal assets or property. In fact, every adult should have a will or other means to control the disposition of their assets. If you have not formalized your intentions, your estate may meet with unnecessary and costly litigation, adding to the grief experienced by your survivors. Avoiding the financial and emotional turmoil of will contests and other legal wrangling starts with choosing an experienced estate planning attorney.

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have a business law 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
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