Many factors go into creating a good estate plan, probably more than most people realize. Your estate plan should be customized to fit your particular situation, goals and desires. And, it should be reviewed and updated periodically to make sure it still reflects your wishes, as these may change over time.
Surviving Spouse. Most married people want to leave everything to their surviving spouse, trusting that he or she will use what they need and make sure that whatever is leftover is fairly distributed among the children, etc. However, if you have children from a prior relationship you may want to take steps to ensure that those children also benefit from your estate rather than trusting your current spouse to take care of them. Some people try to disinherit their surviving spouses entirely. This usually doesn’t work very well as Utah’s version of the Uniform Probate Code grants to a surviving spouse an “elective” share of essentially one third of the decedent’s “augmented estate.” This makes it very difficult to disinherit one’s spouse without his or her consent. One way get around the surviving spouse’s elective share is by entering into a prenuptial or postnuptial agreement that limits one spouse’s claim to the other spouse’s assets in the event of divorce or death. Prenuptial and postnuptial agreements are discussed at more length in the link to our Family (Divorce) Law page.
Minor Children. A general discussion of what you may want to do to ensure that your minor children are properly cared for, especially in the event that both you and their other parent die before the children are grown, is contained in our Minor Children page, which you can jump to by clicking on the link at the bottom of this page.
Gifts to Charity. Frequently, people desire to leave gifts to one or more charities as part of their estate plan. There can also be tax incentives to do this. Potential gifts to charities also should be considered as part of an estate plan.
Distribution of Assets After Death. Probably the most important part of a comprehensive estate plan is how a person’s assets are to be distributed after his or her death, and who will be appointed to make sure it happens properly. The law generally requires that a person’s debts, including income taxes, be paid out of his or her estate after death, and that the debts related to the person’s last illness and funeral have first priority. Exempt and remaining assets will be distributed those who are entitled to them. Entitlement to remaining assets is determined by the intestacy (no Will) statutes, by the dead person’s Will, by one or more trusts that the dead person established, or by some combination of these, and the possibilities of how to dispose of one’s assets are virtually limitless. The person or person(s) responsible for assembling your assets, paying your debts and distributing the exempt and/or remaining assets to your heirs and beneficiaries are called personal representative(s) (also known as “executor(s)”) and/or trustee(s). Although you may nominate one or more personal representatives to administer your estate, a personal representative can only be appointed by the court. An original or successor trustee, however, does not need to be appointed by the court if the provisions of the trust document are clear on that issue.
Assets that Pass by Contract. Some assets, however, pass by contract instead of under the intestacy statutes, a Will, and/or a trust. For example, real estate, automobiles and financial accounts owned with someone else as “joint tenants,” whether “with rights of survivorship” is stated or implied, all automatically pass by contract to the surviving joint tenant(s). An affidavit regarding the death of the deceased joint tenant, together with a copy of the death certificate, is generally required to remove him or her from the title. Individual Retirement Accounts (IRA’s) also generally have a designated death beneficiary who is entitled to receive the remaining IRA assets in the event of the account owner’s death. Similarly, life insurance policies usually require the designation of a death beneficiary. Bank and investment accounts may also have designated “pay on death” or “transfer on death” beneficiaries. However, if there is no surviving joint tenant or designated beneficiary these assets will be included among the general assets of the deceased and be distributed according to intestacy, a Will and/or a trust.
Estate Taxes. As mentioned in the introductory page, the federal estate tax is no longer an issue for most people now that an individual may now pass $5,000,000.00, and a married couple may now pass $10,000,000.00, to the next generation without incurring federal estate tax. Moreover, there is currently no state estate tax in Utah. However, if you and your spouse together have an estate of $5,000,000.00 or more, you will almost certainly want to make sure that you have a comprehensive estate plan in place that minimizes estate taxes to your heirs.
Incapacity & End-of-Life Issues. As explained more fully in our Incapacity & End-of-Life page, a comprehensive estate plan includes properly authorizing someone to take care of you, and authorizing someone to take care of your assets, in the event that you become incapacitated and can’t do so yourself. You may also want to take steps to ensure that your desires regarding when and how to “pull the plug” are followed by taking that decision out of the hands of your family members and giving advance instructions directly to your medical providers.
The Salt Lake City, Utah-based trust, estate and probate attorneys at J.D. Milliner & Associates, P.C. can help you create a comprehensive estate plan that will help to ensure that your wishes are followed, with the least amount of hassles to your heirs and taxes to your estate. Call us today for a free consultation at 801-505-5600.
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