Mary Carollo: Living Trust Attorney

A living trust can serve a number of purposes. A living trust may also be known as a grantor trust or revocable living trust. The trust can help you avoid the probate process. It can also provide lifetime benefits such as property management in the event of disability or incapacity. There are many considerations in establishing a living trust and a living trust attorney can help determine whether a trust would be right for you. It is important to recognize that a living trust will only control those assets that are transferred into the name of the trust. Assets that remain in the name of a person at death still must be transferred pursuant to a last will or, if none, through intestate administration. A living trust attorney in Utah can guide you through this process.

As noted, one of the benefits of a living trust is to avoid probating a Will. When a person dies and leaves an estate to be administered through a Will, the Utah Surrogate’s Court must receive the original of the Will along with a probate petition and other papers. The validity of the Will cannot be finalized until the court is satisfied that all aspects of probate are complete. One of these aspects is the notification of all of the decedent’s next of kin who are given an opportunity to contest a Will. If a person creates and funds a living trust during life then, upon his death, the provisions of the trust can direct the immediate disposition of the trust assets without any need for a court to validate the document. Also, no notice of the trust disposition is required to be given to the decedent’s heirs. As a result, estate litigation may be avoided. Another benefit of a trust is that there is no need to attempt to identify and locate the decedent’s next of kin. This may be important particularly in cases where the heirs at law may be very distant relatives such as cousins who have had no contact with the trust creator for many decades. Similarly, if a person had been adopted the search for his natural relatives can be very difficult. In a Surrogate’s case when issues arise concerning next of kin, there may be the need to prove kinship which can require the use of genealogists and locating family documents such as birth and death records.

As can be seen, there are advantages to a trust since the transfer of assets at death can take place without complicated court proceedings and in relative privacy without public record filings. However, there may be some negative aspects to a living trust. There is generally no savings on federal estate or state inheritance taxes. Also, setting up a trust may be expensive, and the expense is immediate, not delayed till after the grantor’s death. However, in the long run depending on the circumstances, the expense may be worthwhile if the trust provides the appropriate estate plan for the client.

Types of Advance Directives

Advanced directives include such documents as a Living Will, Health Care Proxy and Power of Attorney. These documents provide a means by which a person can express their health care and property management desires and appoint someone to carry out those wishes. A Utah advance directive lawyer can help draft these instruments on your behalf.

These advance directive examples provide directions and named individuals who can express and advance a person’s desires and intentions for their care and well-being when they are no longer able to make these decisions for themselves.

In Utah, a Living Will is an expression of a person’s intent concerning life prolonging treatment. A person can state that they do not want such treatment or measures to be used if they are considered beyond help such as brain-dead.

Utah law provides for a Health Care Proxy whereby a person can designate a person as an agent to make health care decisions if he or she is unable to do so for themself.

A Utah Durable Power of Attorney allows a person to name an agent who can carry out a number of specifically designated property management powers concerning matters such as real estate transactions, banking transactions and tax matters. An advance directive lawyer can assist Utah residents with creating this document.

In the event a person becomes incapacitated and has not put Advanced Directives in place, it may be necessary to have the Court appoint a Guardian to make health care and property management decisions. Guardianship proceedings can be complex and time consuming and a Guardian may not be fully aware of a person’s health care preferences and other desires.

Guardianship proceedings require that a hearing be held by the Court and that a person be found to be incapacitated. Essentially, Incapacity occurs when a person is unable to handle their personal needs or property management due to some disability and because they do not appreciate or recognize their disability they may suffer harm. Utah Guardianship Attorneys are aware that Article 81 of the Utah Mental Hygiene Law contains the provisions regarding these Court proceedings. The person who commences or files the proceeding is called the Petitioner and the disabled person is referred to as the Alleged Incapacitated Person or AIP. The Court typically will appoint a Court Evaluator to review and investigate the facts and issues and to report the Evaluator’s recommendations.

Free Consultation with a Living Trust Lawyer in Utah

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