FAQs – Frequently Asked Questions
Spencer Ball Estate Planning Attorney
7084 South 2300 East, Suite 250
Salt Lake City, Utah 84121
F A Q s
What Is Meant by “My Estate?”
In Estate Planning, your estate is all the property owned by you at the time of your death. Unless plans are made beforehand, there is no way to give, convey or deed any property you own because you will have died, and you cannot therefore sign a deed or other paper which would give the property to someone else.
What Is an Estate Plan?
Your Estate Plan consists of all of the planning done by you to give, convey and distribute all of your property after you die, such as by a Will, a Trust or other document. In a broader sense, an Estate Plan includes all planning not only in the event of your death, but also for your incapacity, or your reaching a point when you cannot made decisions, your appointment of guardians for your children. This includes your medical directive or living will, your power of attorney for others to act in your behalf, and what planning provisions you make for your heirs even far into the future.
What If I Do Not Have an Estate Plan?
If you do not have a will, a trust or any kind of estate planning in place when you die, youare said to die “intestate.” This means that the Court will decide upon who receives the property of your estate according to the directions which the statutes or laws of your state provide.
What is a Will?
Your Will is a document containing your expression of what you direct happens to your estate at your death. Unlike a Trust, a will must be probated in court, which means that the Court must declare whether the will is valid, and then provide for property distribution based on the terms of your will.
What is Probate?
Probate is the action filed in court to determine if a valid will exists, whether any will which is found is in fact valid, and then to provide for the distribution of the property of one’s estate. Probate usually requires a required period of time to enable any Creditor of the deceased to file a claim against the estate, after which the Creditor will be foreclosed from doing so. The Probate Court also appoints an Executor or Personal Representative to act under the direction of the Court in the distribution of the property of the estate. Any disputes among heirs, creditors or other interested parties are resolved in the probate proceeding. As with nearly all court proceedings, probate proceedings are public record, which means that anyone can go to the Court and review the documents filed in a probate proceeding.
What is a Trust?
When you make a Trust, you are making an agreement between you, as the Trustor, and another person known as the Trustee, whereby the Trustee follows your instructions on how to administer the assets you put into the trust in behalf of the Beneficiary or Beneficiaries of the Trust, who are the people you want to benefit from the assets. A Trust provides the greatest flexibility to you as the Trustor to have your assets you place in the Trust to be managed and administered by the Trustee to benefit the beneficiaries of your Trust. When you use a Trust in your estate plan, all of the property which exists in the Trust is administered by the Trustee without having to file any action in the Probate Court. This saves time, money, and keeps the matters of your estate private, away from the public record of the Court.
What is a Trustor of a Trust?
The Trustor of a Trust is the person who makes the Trust Agreement and appoints the Trustee and also the Beneficiaries, and who decides on the terms of the Agreement. The Trustor is the one who places those assets or property in the Trust for the Trustee to manage in behalf of the Beneficiaries. The Trustor is often called the “Settlor.”
What is the Trustee of a Trust?
The Trustee of a Trust is the person whom the Trustor appoints to manage the assets of the Trust in behalf of the Beneficiaries. A Trust can have one person act as a Trustee or several people act as Trustees, or an entity such as a Bank may be appointed as a Trustee. The Trustee has a fiduciary duty to act according to the provisions of the Trust agreement and to act in the best interests of the Beneficiaries of the Trust. A Fiduciary Duty is that duty which requires one to act in the best interests of another. The Beneficiaries can bring an action in court if a Trustee fails to measure up to the terms of the Trust agreement and act in the Beneficiaries’ best interest.
What is the Beneficiary of a Trust?
A Beneficiary is the person whom the Trust is intended to benefit. When you form a Trust for Estate Planning purposes, you typically would be that Trustor who forms the trust and appoints a Trustee to act in behalf of your heirs, or typically your children, whom you would name as the beneficiaries.
What is a Revocable Living Trust?
There are many types of Trusts used in estate planning to accomplish many different purposes. The most common type of Trust used fin estate planning is a Revocable Living Trust. If you made a Revocable Living Trust, you and your spouse typically would be the Trustors, the Trustees and also the Beneficiaries. You would have power to revoke or end the Trust at any time while you are alive. If you or your spouse dies, then the survivor would typically continue to be the Trustee alone and often the sole beneficiary. Once you die, the person you name to act as Trustee would become the Trustee, and your children would become the Beneficiaries. At that point, the Trust becomes irrevocable, meaning that the Trust typically cannot be ended without a Court order, and the Trustee you appointed must act according to the terms of the Trust in behalf of your children.
How Do I Choose a Guardian for my Minor Children if I die?
A Guardian for minor children can be set forth in a Will, or in a separate document naming a legal guardian. This is an important and overlooked aspect of planning which can have grave consequences for your children. Choosing alternate guardians and also temporary guardians are important features to include in a Guardianship document.
What is a Living Will or a Health Care Directive?
A Living Will of Health Care Directive is a document where you can choose the healthcare you will receive when you have become incapacitated and cannot make coherent decisions for yourself. For example, you can choose to be taken off life support or intravenous feeding if chances of your recovery are small or nonexistent.
What happens to my estate If I Become Incapacitated?
You can include a revocable living trust in your estate plan with provisions of what your Trustee is to do in the event that you become incapacitated. A provision identifying precisely how your incapacity is to be determined can be included. A “Durable” Power of Attorney, which is a Power of Attorney which remains effective during your incapacity can also be used, but it is not as strong as a Trust, and in the event of death, it becumes immediately useless.