Utah Estate Planning Questions & Answers

Q: Power of Attorney Question about an Elderly Person.

1 Answer | Asked in Estate Planning for Utah on
Answered on Feb 1, 2019
Wesley Winsor's answer
There is nothing illegal about it, unless your mom has truly lost her capacity. The fact that it is her legal husband that is doing this will probably hold more weight as well.

If you want to stop this, you will need to file for a guardianship or conservatorship with the Court so that no one else will have the power over her or her estate.

I hope this helps.

Q: What can I expect to pay for an hourly fee for updating a will and trust?

1 Answer | Asked in Estate Planning for Utah on
Answered on Jan 10, 2019
Wesley Winsor's answer
It is hard to say. Most estate planning will do this at a flat rate if they do it all. The reason they may not want to update (meaning drafting an amendment or a codicil) is that they believe that they will be held responsible for the rest of the contents of of the document even if you they are only modifying one provision and they do not want to spend the time necessary to become familiar enough with the 20 page document or it would not be worth it for you to do so. In the end it would be...

Q: My mom is number 2 trustee on my grandpa's and step grandmas will,what say does my mom have in it.

1 Answer | Asked in Estate Planning for Utah on
Answered on Jan 10, 2019
Wesley Winsor's answer
Your mom is a contingent agent to carry out the terms of the trust. Until your step-grandma either resigns, becomes incapacitated or dies, your mom has no authority over the trust property by virtue of the trust agreement.

I hope this helps.

Wes

Q: In my house I have my deceased boyfriend guns in my gun safe can I keep them until I get my stuff he had at his property

1 Answer | Asked in Estate Planning and Probate for Utah on
Answered on Dec 12, 2018
Wesley Winsor's answer
Hi,

I am sorry for the loss of your boyfriend.

The personal representative of your boyfriend's estate has the job of collecting and securing all property of the estate. The guns are part of the estate. In addition, Utah Law (which would be applied and respected in Wyoming) will empower the Personal Representative to compel delivery of the property. In simple terms, the Personal Representative can sue you to get your boyfriend's guns and will most likely be successful....

Q: In Wyoming can a partner or friend be administrator of estate if no will

1 Answer | Asked in Estate Planning and Probate for Utah on
Answered on Dec 10, 2018
Wesley Winsor's answer
According to Wyoming law,

2-4-201

https://law.justia.com/codes/wyoming/2014/title-2/chapter-4/article-2/section-2-4-201/

A competent person has the lowest priority of anyone. So yes, the answer is yes, but if a relative, or creditor, or anyone who has a beneficial interest in the estate wants to, then they will be able to.

I hope this helps.

Wes

Q: is it ethical for lawyer to communicate with court visitor and not share with opposing counsel this was done?

1 Answer | Asked in Estate Planning for Utah on
Answered on May 14, 2018
Wesley Winsor's answer
Hello,

Court visitors are charged with providing an independent assessment. The fact that the Court Visitor met with the attorney is not alarming and even not that unusual. Remember that the attorney is an agent for the person petitioning for the guardianship/conservatorship and the attorney could have been explaining a diagnosis or merely explaining their position.

In the same vein, the proposed ward's counsel could have met with the Court Visitor as well. Upon the Visitor,...

Q: 88 year old father's wife is ill and wants to sell their house (in her name) and put money in a trust, daughter Excec

1 Answer | Asked in Estate Planning for Utah on
Answered on Apr 19, 2018
Wesley Winsor's answer
I am glad that you are concerned about your father. It sounds like they are dealing with some of the common issues that come with aging.

When I hear this, it doesn't make me too concerned. They may be trying to do some sort of Medicaid planning or VA planning. The first questions you need to ask in order to properly evaluate whether or not this is a good plan for your dad is 1) what are the terms of the trust and 2) what kind of trust is it. The terms of the trust will dictate...

Q: Q: My dad passed away and had family heirlooms that were left on his property. Now my aunt thinks they should go to her.

2 Answers | Asked in Estate Planning and Probate for Utah on
Answered on Mar 8, 2018
William Tyler Melling's answer
Assuming all of your father's children are also children of your mother, then the heirlooms are hers unless there is some other Will or instrument governing their ownership. Even if your father had children that weren't your mother's children, it would be divided between your mother and those other children, not to your father's siblings.

Q: How do you administer a small estate?

1 Answer | Asked in Estate Planning for Utah on
Answered on Feb 6, 2018
William Tyler Melling's answer
Usually, if the estate is exempt from probate (no real estate and value under $100k), then you should not need to have a personal representative appointed through the courts. Whoever is the designated personal representative in the decedent's Will (or, if none, the closest living relative) may administer the estate accounts using a small estate affidavit. You can find that form and other information at https://www.utcourts.gov/howto/smallestates/.

Q: My mother passed away 18 years ago. I was supposed to receive my trust money when I turned 33. I’m now 46 and haven’t.

1 Answer | Asked in Estate Planning and Probate for Utah on
Answered on Jan 29, 2018
William Tyler Melling's answer
This really depends on a lot of different factors. If the funds had vested to you (meaning they are not contingent on someone else like your father passing away), then the Trustee is responsible for those funds and was responsible for their appropriate investment. I would suggest contacting an attorney in your area to review the Trust and contact the Trustee regarding any remaining funds. That attorney would be able to advise you as to your rights based on the Trust document and any Trustee...

Q: Do I need to go through probate to sell my home after my husband's death

1 Answer | Asked in Estate Planning, Probate and Real Estate Law for Utah on
Answered on Jan 29, 2018
William Tyler Melling's answer
I'm sorry for your loss.

Probate is probably unavailable at this time, due to the length of time since his passing. Instead, you will need to obtain an order determining heirs. Most probate attorneys in the county where he passed would be qualified to help you with that process.

One potential problem is if his share in the home value exceeds $75k. His children would likely be entitled to half of his share's value that exceeds that amount. Be sure your attorney is aware of that...

Q: Can a home be sold if living will states upon their death to sell home and split into 4s?

2 Answers | Asked in Estate Planning for Utah on
Answered on Jan 29, 2018
Wesley Winsor's answer
The short answer is "yes". Will's are only valid after the testator (the person who makes the will) dies. Up until that point, they lie dormant. A power of attorney creates an agency powers that can be effective immediately. So if your sister's agency powers are effective, then she has the right to sell the home now.

I hope this helps.

Wes

Q: I cannot find my mother's will. I have a brother. He told me to handle things. Will we still go through probate?

2 Answers | Asked in Estate Planning, Tax Law and Probate for Utah on
Answered on Oct 9, 2017
William Tyler Melling's answer
I am sorry for your loss. Usually, if the estate has any real estate that was in her name and not held in a Trust, a probate will be required to transfer the home to the names of her heirs or to give you authority to sell her home. However, if you find that the back taxes owed, medical debts, and other liabilities exceed her net worth, then it may not be worth the cost and time of going through the probate process, in which case you need not do anything. It may be worth consulting a probate...

Q: If a car dealership is to tear down a neighborhood, would the seller be required to disclose before selling?

1 Answer | Asked in Consumer Law, Contracts, Estate Planning and Real Estate Law for Utah on
Answered on Aug 2, 2017
Wesley Winsor's answer
Unfortunately for you, no. Although, sellers will typically provide a "seller's disclosures" they are not legally obligated to do so. If they did provide a "seller's disclosures" and proactively said that they were not aware of any major changes to the neighborhood when if fact they did know about it, then you might have something.

As is, it is an arm's length transaction and discovering items such as this is part of the buyer's due diligence. I don't think that this was the answer...

Q: My mother died 7 years ago my sister has been living in the home now the remaining sisters want to sell how do I remove

1 Answer | Asked in Estate Planning, Family Law and Real Estate Law for Utah on
Answered on Jun 27, 2017
Wesley Winsor's answer
Who has title the house? Is it still in your mom's name? If so then you will need to file an action in probate called a determination of heirs (probably as the normal time to probate an estate has probably lapsed) in order to get a personal representative appointed who will then have the authority to evict her. If there has already been a probate opened, then the personal representative/executor has the authority to evict her, by the normal means.

I hope this helps.

Wes

Q: Curious if I am a Beneficiary and receiving home with small Mortgage through a Trust will I be Responsible for

1 Answer | Asked in Estate Planning for Utah on
Answered on Jun 27, 2017
Wesley Winsor's answer
I am assuming you understand that secured debts are those debts that are not attached to something that the bank/creditor can repossess and unsecured debts are debts such as credit cards, personal loans, etc. where there is nothing physical that the creditor can reclaim if the debt is in default.

Whoever the trustee is will be responsible for paying the debts. If there is enough money left in the estate to satisfy the unsecured debt then the trustee can pay those debts with the other...

Q: I have a Question I am the Beneficiary of a Home with 50k left on Mortgage and it is worth 250 k. Will I be Responsible

1 Answer | Asked in Estate Planning and Elder Law for Utah on
Answered on Jun 27, 2017
Wesley Winsor's answer
Well that depends on your position. Are you the named personal representative? Are you a trustee of the the trust that the home is titled in? Perhaps you are on title with your grandmother as joint tenants with a right of survivorship. Or maybe you are named in the will as the beneficiary of the house. These scenarios all create different answers.

I am assuming that you understand that the mortgage on the home is "secured debt" and that you are asking about credit card debt or...

Q: I just need a simple answer. My roommate and I are going to buy a home. How do we each keep our children from taking

1 Answer | Asked in Elder Law and Estate Planning for Utah on
Answered on Jun 22, 2017
Wesley Winsor's answer
Here are two options:

1. You can set up a trust and both be trustees of the trust and when you purchase the property you purchase it in the name of the trust. If you do this then not only can you plan for the situation of what happens to if something happens to one of you, but it will also answer the question of what happens if something happens to both of you. It will avoid the need for probate.

2. When you purchase the property you take title to it as joint tenants (you do...

Q: How can I get a copy of a will/ probate/ trust, to determine if revocable or not?

1 Answer | Asked in Estate Planning, Probate and Contracts for Utah on
Answered on Apr 28, 2017
Wesley Winsor's answer
Unfortunately, at this point, you do not have standing to demand to see the the trust. You would first need to petition to have a guardianship or a conservatorship over your uncle. Otherwise, if your uncle has capacity he could give you a limited power of attorney to inspect the trust document. I am not sure what MR/DD is but if he is incapacitated then he can't legally consent to give you a power of attorney over him.

Unless you are a beneficiary of the trust and or have a good...

Q: If I am the successor, and someone out of the family gives away my father's belongings how do I get them back?

1 Answer | Asked in Estate Planning for Utah on
Answered on Apr 28, 2017
Wesley Winsor's answer
When you say you are the successor trustee are you saying that the original trustee died and now because you were the successor trustee you are currently the trustee?

If you are the trustee and someone else has given away some of the trust property without authority, then that person has stolen from the trust estate. You as a trustee have a duty to preserve and protect the trust property.

Just as if someone had stolen a car from you, you can contact the police if needed to...

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