Answering Common Estate Planning Questions

What happens if I die without a will?

State law provides a plan for those who die without a will. Basically, the decedent's next of kin will inherit the net estate (after payments to creditors) in a set formula.

If I just want my estate to go to my family, why should I write a will?

A will eliminates uncertainty in who should administer your estate by allowing you to name the person you want to handle your affairs. In most families there are some complications which make writing your own will preferable to leaving everything according to the state's predetermined plan. These circumstances include second marriages, stepchildren, deceased children, foster children, in-laws, survivors of deceased children, siblings, parents or caregivers to whom you may be particularly close, etc. The possible variations are practically limitless.

Will my estate go to probate?

In Utah every estate that either includes an interest in real estate or is valued at over $100,000 will require some form of probate.

If I have a will, does that avoid probate?

Not usually. Estates that include real estate or have significant value go to probate even if there is a will. However, having a will can limit the extent of probate, make it faster and less expensive for your family, as well as letting you make and express your own decisions about your estate.

What is probate?

Probate is an administrative procedure, overseen by the court, to facilitate the distribution of assets from the dead to the living. Probate does not mean that the government takes your money. If you have a valid will, probate includes the judge making sure your wishes and intentions, as expressed in that will, are followed.

How do I avoid probate?

Although not terribly expensive, probate does cost money and take time. It also delays administration of the estate while waiting for court approval. Many people avoid probate by not having a probate estate. This means that when a person dies his estate does not exceed $100,000, nor does it include any real estate. This is often accomplished by creating a living trust (trust created by living persons) which owns the majority of the assets and directs distribution after a person's death, outside of the probate court.

I don't have a lot of money. Do I need a trust?

A trust is helpful to speed up the administration of your estate, avoid the expenses of probate, and keep the administration private. A trust may be recommended if your estate value exceeds $100,000 or includes any real estate. Trusts are useful for regular people who want to plan their affairs and make things easier on their survivors.

Do I lose control of my assets by creating a trust?

No. At least not if it is done correctly. Most living trusts provide that, while you live, you are the beneficiary and trustee of the trust. That means that, although you do not technically own all of the assets — because they now belong to the trust — you own the trust and have complete authority to direct the use of those assets for your own benefit. The trust then makes provisions for management and distribution of trust assets upon your death.

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