Publications Archive

You might consider a Christmas gift for your children or grandchildren and enjoy a tax gift. The way to do this is to establish a 529 Educational Plan.

Litigants can never be certain how a case will be decided by a judge. Further, litigants will have to spend time in responding to discovery, depositions, attending hearings, and of course, testifying at trial. All of this can create substantial stress. An alternative to the courtroom is mediation.

At one time or another, most of us have likely encountered or used a power of attorney (POA). This column is intended to highlight some of the issues surrounding the use of a POA.

If you have a trust, you should consider protecting if from your children. Too often substantial assets of trusts are depleted from legal battles between children. The purpose of the trust is to benefit the beneficiaries.

You can do a Will yourself without any witness. When it comes to the law, the tasks are not generally labor intensive. It is not back-breaking work. Rather, it is “know how.” It is knowledge and experience to get it right.

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Unfortunately, our society is plagued with many divorces, by some estimates, 50% of our marriages end in divorce. Recently, an unusual situation where one spouse in a divorce proceeding died, and what I learned was so interesting that I decided to share it with my readers.

Drew Clark, Of Counsel with Kirton McConkie and formerly a senior writer at National Journal’s Technology Daily and a columnist for CongressDaily, addresses the war over broadcast airwaves that has continued to drag on because generations ago, the government handed out valuable frequencies to broadcasters for free while other industries have not been able to buy these desirable frequencies. Broadcasters have used heavy lobbying and political friendships to stave off rivals, bus as the digital age unfolds, change is in the air. Click the  title to read the article.

The subject of this column was chosen because of my experience with several recent lawsuits over wills and trusts. Some believe that having a trust will insulate their estate from probate and lawsuits. Wrong. In fact, I actually see more litigation over trusts that I do for wills.

IRAs and other qualified retirement plans have become pervasive. These plans have enjoyed substantial success because of the tax advantages. Contributions to such plans are made before taxes. This means that taxes on contributions and realized gains in such plans are deferred until withdrawal.

When we can no longer make reasonable decisions about our financial and personal affairs, we have to rely on someone else to make those decisions for us. Sometimes a spouse or a child takes over for us through a durable power of attorney.

If you die without a valid will, you are said to have died intestate. Since the majority of persons die without a will, laws have been developed to deal with these situations; They are known as intestate laws.

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Our State legislature repealed and then passed a new statute to better protect seniors. Bill 25 is primarily aimed at giving authority to Adult Protective Services to protect seniors and certain impaired adults.

Within the Department of Human Services is the Division of Aging and Adult Services, and within the Division is the “long-term care ombudsman program.” The purpose of the program is to promote, advocate and ensure the “adequacy of care received, and the quality of life experienced by elderly residents of long-term care facilities within the state.”

Marriage at any age creates responsibilities and potential liabilities. For older adults, entering into marriage can be financially more risky. When marriage is contemplated, divorce or death is seldom considered, but those events trigger serious financial consequences.

Many of us are retiring at an older age. Full Social Security Benefits are being delayed until a later age and we are living longer. Given these facts, at what age is it appropriate to begin planning for one’s retirement?

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For major gifts, especially to our children, we can give them during our lifetime or wait until after death. That is, we can leave our property and things to our children through a Will, but a common question is, is it better to give while living or through a Will?

Will Substitutes are widely used and while these devices can avoid the need for a Will, they also have inherent shortcomings associated with them.

At some time in our lives, we get serious about planning for our eventual passing and in doing so, we may prepare a Will. Later, we may want to make changes to it.

We are a highly mobile society. As a Nation, some reports show that on average we move every seven years, sometimes leaving behind most of our assets.

For the past dozen years, college tuition has increased at a far faster rate than general inflation, and there is no end in sight. For your children or grandchildren, you should begin now to plan for their educational needs.

Fear mongers often promote trusts by issuing dire warning to avoid probate. Most such promotions are misleading and intended solely for pecuniary gain to the promoter.

Do you have to give your home to Medicaid in order to qualify for long-term care assistance? Or, is your home sacred in Medicaid’s eyes? The short answer is Yes and No.

A “reverse mortgage” is a relatively new financial device. It is somewhat like a regular mortgage. The difference is that no payments are required.

Will my spouse or my children be in charge of my assets? Who will make decisions for me if I can no longer do so? These questions implicate the issues of guardianship and conservatorship.

The 2003 Legislature passed sweeping changes to Utah’s funeral statutes. It is now possible for you to direct the preparation, type and place where your remains will be disposed.

Why should you avoid probate? Does it take too long or is it too costly? Generally the answer is NO! Whether you have a simple or a complex will, your estate can be probated in an “informal” manner.

The surviving spouse is accustomed to having a second name on the deed. However, there are risks and costs when you add your beloved child to your deed.

Family members who provide care for their loved ones carry a heavy burden. As the disease progresses, individuals with Alzheimer’s most often require 24 hour care and a long-term care facility, as well as Medicaid may become an option that otherwise would never be considered.

What happens to the minor children in the event of a tragedy? That is a question parents consider when preparing a Will. They should nominate in advance of such a tragedy a guardian for their minor children.

Young people rarely think that their life may end early. As a consequence, they rarely prepare a Will and related estate documents. My column  is directed to those younger adults who should be preparing for that eventual day when their mortality ends.

There are several advantages of appointing a Conservator. First, you no longer have to say “No” to a certain child, and that responsibility is shifted to another adult child. Second, the responsible child who is serving as your Conservator has the mantle of court-appointed authority.

Providing long-term care of a disabled child can be a challenge. A Special Needs Trust is a mechanism for you to allow limited help to your child. This can be created at any time your child is less than 65 years of age.

It is not my intent in this column to promote any particular insurance company or long-term care insurance policy. Rather, my intent is to motive you, the reader, to investigate this kind of insurance. It may not be right for you. Each person must weigh the benefits and costs for themselves.

Elder Law Attorneys regularly consider issues of incapacity, long-term care, Medicaid and other public assistance possibilities. This article will identify some common defects, or at the very least some shortcoming in trust documents.

If you become incapacitated, a Durable Power of Attorney may protect your interests and provide for your needs. An Institution, financial or medical, may not accept the form of your Power of Attorney. If so, a guardian and/or conservator play an important role.

Most states have enacted at least in part the Uniform Probate code. If you die without a valid will, there is a predetermined method for the distribution of your estate.

In protecting your home, you could simply convey your house by quit claim deed to a child or to your children. Or, you could add a child’s name to the deed, thereby giving half of the house to that child. However there are risks and disadvantages of doing so.

Upon the death of a loved one, there are many tasks to accomplish. Probate is usually the last thing on the mind of the responsible family member. In this column, I will present the dangers of waiting to probate a Will.

When we can no longer make reasonable decisions about our financial and personal affairs, sometimes a spouse or a child takes over for us through a durable power of attorney. Our children or siblings often mean well, but their inability to agree on who ought to make decisions for us may spawn costly litigation.

The term Holographic Will refers to a hand written Will rather than a typed, printed, or computer generated Will. Since these kind of wills are given special treatment under Utah’s probate laws, this column will discuss holographic wills and compare them to typed or printed wills.

Giving a gift during one’s lifetime is termed an inter vivos gift. A gift made after the death of the giver is a testamentary gift. There are several factors to consider before deciding which manner of gift giving is best for you.

Since the number of Wills predominates over trusts, based primarily on costs and convenience, this column addresses amendments to Wills.