Lear & Lear PLLC Law Offices

Have you ever heard of a Personal Representative?  What about the Executor of an estate?  And what about an estates Administrator?This month, we are focusing on the role that a Personal Representative plays in the care and administration of an estate.  The difference between Personal Representatives, Executors, and Administrators.A key function of an estate plan is to designate a person to take care of your belongings and act in your name after youre gone. This person must be responsible for gathering your assets, paying off any valid debts and costs of administering your estate, and distributing the remaining property to your chosen beneficiaries.In general, the person who takes on and oversees these responsibilities is your Personal Representative.   You name a Personal Representative in your Will and, at the end of the probate process, the court official appoints them and creates letters testamentary stating that they have the power to administer your estate.  There is no difference between a Personal Representative or an Executor.  They occupy the same role.  Personal Representative is simply a more modern name.  However, an Administrator is appointed by the probate court to oversee the estate of someone who died without a Will or whos Will is invalid.  We call this intestacy.  The duties of an Administrator are the same as a Personal Representative or an Executor, but their powers are recognized in Letters of Administration.  Duties of Personal Representatives Your Personal Representative is perhaps the most essential person in the process of distributing your assets after death because they oversee their administration. Administration means distributing the assets according to the will of the deceased. This person is required to act in the best interest of the estates beneficiaries. A Personal Representative has four main duties which are to:(1)   collect and inventory the deceased assets;(2)   manage assets during probate and administration;(3)   pay taxes and debts owed by the decedent and the estate; and(4)   distribute remaining assets to beneficiaries.Additionally, a Personal Representative is required to give notice to all interested parties, including known beneficiaries, potential heirs, and creditors. Personal Representatives may also be required to post bond by state law. Posting bond ensures that the beneficiaries are protected from the Personal Representative improperly taking funds from the estate. Who Should I Appoint As My Personal Representative Again, your Personal Representative is one of the most essential tools you have in ensuring that your final wishes are followed. Because they are such an important part of the distribution of assets, choosing someone is a decision that should be made after much consideration.When deciding who you would like to appoint as your Personal Representative, make sure to choose someone you trust and who has the ability to manage your assets with care and particularity.  Anyone over the age of 18 and not under a conservatorship can serve as a Personal Representative.  You can appoint a relative or a beneficiary of your estate. You can appoint a professional, such as an attorney or trust company. You should also name alternate Personal Representatives in the event your first choice is unavailable for some reason. If you would like, can appoint two or more people to serve as Co-Personal Representatives. But, think carefully before you do this because multiple representatives must act in unison. This means one Co-Personal Representative can effectively veto the actions of the other Co-Personal Representatives, which can lead to significant delays in the administration of your estate.If you would like assistance in drafting your estate plan, including advice on who to choose as your Personal Representative, contact us today.385.334.4030email@skvlegal.com skvlegal.com/book-online

Today, we're discussing how to choose between appointing a guardian or conservator. When deciding what kind of protection you need in an aide, there are many things to consider, including:1. What is your personal capacity to care for yourself?2. What areas of life do you need supervision over? Healthcare? Daily maintenance? Or, do you only need help safeguarding finances?3. How extensive is your estate?4. What is the difference between a guardian and a conservator?5. What combination of conservator/guardian would you most benefit from? Guardian only? Conservator only? Or both?Differences Between Guardians and Conservators A guardian is a person (or an institution) who is given authority to act on behalf of a protected person as though they were that person. A guardian can be given a full guardianship over all aspects of your life, or authorities limited to certain areas such as health care, education, or finances. A conservator is given authority only over your finances. Like a guardian, a conservator must be appointed by a court order. However, unlike a guardian, a conservator cannot make personal decisions for you. Conservators DutiesOnce appointed, a conservator becomes the trustee of your estate, which includes income (wages, social security, annuities), real property (a house, other buildings, and land), as well as stocks, bonds, retirement funds, etc. In fact, once appointed, and unless specifically limited, a conservator has all of the authority given by law to conservators, additional authority given to trustees, and the authority of the protected person, except the power to make or change a will. This amounts to a lot of power. Thus, when acting on your behalf, a conservator must act as a prudent investor would. A conservators duties and powers include:Managing your incomeContinuing or participating in the operation of your business or enterprises Making necessary estate paymentsOrganizing and protecting your assetsAppraising and safeguarding your propertyMaking prudent investmentsPaying or contesting any claims against the estateRegularly reporting to the courtThe list above is by no means exhaustive. Because a conservator does have so much power, their authorities and responsibilities are highly regulated. An in depth conversation about these powers is outside of the scope of this blog post, but must be understood and tailored to your specific needs in order to best serve them. Deciding What Is Best For YouIf your are able to care for yourself in every area other than their finances, you might only need a conservator. If you need help in other areas of their life, you probably need a guardian. If your capacity to care for yourself is diminished and you have an extensive estate, you might need both a guardian and a conservator. We understand that deciding how to best plan for your future might seem complicated and daunting. We can help you balance the choices that you have with your needs. Contact us today. 385.334.4030email@skvlegal.com skvlegal.com/book-online

Healthcare Directives are valuable to people in all walks of life. As you read this article, consider obtaining one for yourself.A Healthcare Directive is a tool to designate a health care agent, or someone to make health care decisions on your behalf. It goes into effect upon your inability to make or communicate health care decisions. If you fail to appoint someone to fill this role, the court will appoint a guardian, which may create a costly legal process. If you have Healthcare Directive, you are able to choose the person who will determine what treatments and health care you will receive, including end-of-life or palliative care decisions. Your health care agent makes surrogate decisions, which means that they step in your shoes and make the decisions that you would make on your own if you were able to do so.Ideally, surrogate decisions should be based on your input and the specific preferences you communicated before any loss of decision-making capacity. It should be based on a prior understanding your health care preferences and what you would want under the circumstances. Healthcare Directives are intensely personal documents. When thinking about creating your own, consider:Your values and how they may be reflected in your health care;Your priorities;What life means to you personally; andHow important quality of life is to you.Are there certain conditions that are worse than death to you? Would you undergo a risky procedure if it had a low chance of survival? What if that same procedure had a high chance of survival but would permanently lower your quality of life? How long would you like to be on life support? Its never fun to think about these things, but by selecting a health care agent and informing them of your preferences, you are preparing for the worst-case scenario and ensuring that your wishes will be followed. Clearly, the consequences of having or not having a Healthcare Directive can be huge, which is why we so strongly advocate that everyone, regardless of age or health, have one in their estate plan. Please dont leave your relatives to fumble in the dark if the unthinkable happens and you are unable to make your own health care decisions. Again, while an Healthcare Directive will be helpful to you in the future, you might have an elderly relative who is in need of one right now. So, whether you need one for yourself or for a loved one, contact us today at (385)334-4030 or send an email to info@skvlegal.com to set up your free consultation to determine your specific needs.

One of the most common questions were asked by our estate planning clients is, Where do we start? Our answer is, With your biggest worry. Estate planning can be an overwhelming undertaking. But, we have come to know that finding the right jumping off point is half the battle. Calming your greatest fear, planning for your biggest worry is a great jumping off point.Power to Make Medical DecisionsOne common worry is that our clients wishes wont be followed in a medical emergency. When were made aware of this, we suggest that they start with a Healthcare Directive. In a Healthcare Directive, you name a medical agent to make medical decisions for you when you are unable. You also memorialize what your wishes are so your medical agent knows what decisions to make. You can name what lifesaving measures you would like to be taken on your behalf. You can declare whether youd like to be an organ donor or not. You can leave instructions for your funeral. Knowing that there is a legal document that will become a gameplan in a medical emergency gives our clients a starting point and enables us to alleviate their worry. Leaving Specific GiftsAnother concern is that our clients wont be able to leave a specific item or gift to a specific person. Or, relatedly, some clients also that someone that they dont want to inherit anything will be given some of their estate. When we know this, we recommend a Will or a Trust. In a Will, you can name who you want your beneficiaries to be, which also enables you to disinherit specific individuals. You can do the same in a Trust, and a Trust does not have to be probated to be valid. Knowing which instruments allow them to select who they want to leave their possessions to gives our clients a strong first step in starting their estate plan, while simultaneously giving peace of mind.Power to Make Financial DecisionsA final worry we commonly hear is that our clients finances wont be cared for in their absence. When we hear this, we recommend a Power of Attorney. In a Power of Attorney, you name an Attorney-in-Fact to make financial decisions if you are incapacitated or absent. You also enumerate the scope of power that your Attorney-in-Fact is given as well as the assets that they have control over. You can have one Power of Attorney that covers all of your finances, or a series of them for specific properties or accounts. Knowing the route to take to protect their financial interests is a strong place for our clients their estate plan and gives comfort about the future.We understand how daunting the thought of starting the estate planning process can be. So, tell us your greatest worry, and well work from there.

Funding your revocable trust is just as important as creating it. However, many people dont know what funding a trust means. Funding a trust is accomplished by retitling assets into the trusts name rather than your own. Incorrectly funding a trust can become very problematic. Consequences of not re-titling assets:There are a variety of reasons why we require and help our clients retitle their assets into the trusts name. Here are three reasons that you should retitle your assets: 1. Your assets may be subject to probate if they are not retitled. Probate is the legal process by which assets are distributed after death. It is best to avoid probate because it can be time consuming and expensive. And if your assets are owned by your trust and not you, they do not need to go through this process in order to be dispersed. 2. It makes the administration much simpler. When assets are already owned by the trust by retitling, there is less room for confusion about asset ownership and distribution. 3. Retitling can help protect your assets from lawsuits, creditors, and people you may wish to keep away from your assets. The whole point of creating a trust is to make a plan for how your belongings will be handled. But, if they are not correctly titled in the name of the trust, the plan you so carefully created flies straight out the window. What assets need to be retitled:A revocable living trust protects your assets and determines who your assets will go to once disbursements are made. To begin creating a revocable living trust, think about what assets you have and who you want to leave them to. As weve said, retitling your is a crucial step in creating a trust because it effectively transfers ownership of the asset to the trust. Titling, as a legal term, identifies who owns an asset. When it comes time to disburse the trusts assets the trust has the power to give out the assets it owns. Certain assets must be retitled in order to pass out of your possession and into your trust. These include:Bank accountsRetirement accountsLife insuranceHealth insuranceInvestment accountsReal estate Vehicles We would be happy to help you determine if your assets need to be retitled, because chances are, they do.How to retitle assets:Funding a revocable living trust involves transferring assets from the trustor, or the creator of the trusts individual name to the name of the trust. This means literally changing the names on your assets from your name into the name of the trust. Retitling assets is a straightforward process. However, it does differ from asset to asset.For real estate, retitling involves a deed. For example, if you own a home, the home is currently deeded in your name, even if there is a valid mortgage. In order to change the title of your house, deed it from yourself and into the trust. This can be achieved through a Warranty Deed or a Quitclaim Deed. The deed must then be signed, notarized, and recorded in the county where you live. To retitle a bank/ retirement/ investment/ insurance account, simply contact the bank or institution that holds the asset and request a change in ownership from your name to the trusts name. You can also request that the Trust be designated as the accounts pay on death beneficiary if you would like to retain ownership of said account while you are still living. We should note that the institution that manages your asset may require documentation stating that you are trustee of the trust. Correctly funding your revocable living trust by retitling your assets is the only way to ensure that you are correctly passing ownership and into the ownership of your trust. We want to help you understand how best to protect your assets for smooth and effective administration. Reach out to our team today at 385.334.4030 or email@skvlegal.com.

Lets chat about Powers of Attorney. While the information contained in this post might be applicable to you, it might also be applicable to your elderly relatives, so, read this with them in mind.You may be asking yourself (i) what is a Power of Attorney, and (ii) why would I need it? A Power of Attorney is a document that gives a person authority to act on your behalf, thus becoming your Attorney-in-Fact. The Power of Attorney document can be very specific or very broad. You can give your Attorney-in-Fact the power to handle your bank accounts, sell your real property, run your business or apply for public benefits. Or you can give them the specific power to sell one piece of property.Why do you need one? Because its a simple tool that allows your Attorney-in-Fact to handle your financial matters without entering into more complicated agreements, like a Trust. The Power of Attorney helps eliminate the need for a guardian or conservator. You should pick someone you trust to hold the legal authority to make decisions should you experience an unforeseen event like a stroke or car accident.There are four types of Powers of Attorney: A General Power of Attorney: allows the Attorney-in-Fact to act as you in dealing with financial accounts and managing personal finances. However, it is terminated upon your incapacitation. It can also be revoked. A Durable Power of Attorney: allows the Attorney-in-Fact to act on your behalf and includes a durability clause that keeps the Power of Attorney in place after you become incapacitated. A Special or Limited Power of Attorney: this is when you have given the Attorney-in-Fact very specific powers which limit their authority and responsibility.A Springing Durable Power of Attorney: this only becomes effective upon your incapacitation. In Utah, a Power of Attorney is considered durable unless it expressly states that it terminates upon your incapacitation. As is so whenever you write a legal document, you have choices to make. So, you need to be clear about what you truly want your Power of Attorney to do for you. Some additional important points about Powers of Attorney are:The power must be given, it is not something you can obtain over someone on your own.In order to create one, you must have the legal capacity to understand the authority that you are assigning to someone.The Attorney-in-Fact only has the authority to do those things that are designated in the document.The appointed person must make decisions the way you want. They cannot follow their own desires when representing you.Once again, while you could certainly benefit from a Power of Attorney, there might be someone in your life who needs one right now. Whether you would like to have a Power of Attorney ready for use in the future, or whether you have a loved one who could benefit from one right now, call us today to set up your free consultation.

What do you know about testamentary trusts?A trust protects your assets and determines where those assets will go once you are gone. Three common types of trusts are a revocable trust, an irrevocable trust, and a testamentary trust.Most trusts, like revocable and irrevocable trusts, are made and actively used while the trustor (or the creator of the trust) is still alive. In contrast, a testamentary trust only comes into being after the trustors passing. A testamentary trust is created based on explicit instructions written into a will. In it, a trustee, (or the person who manages the assets on behalf of beneficiaries of the trust) is appointed and given instructions on how to distribute the estate. The trustee can decline the position. If a trustee does decline the position, a court can appoint someone to act as trustee. It is best to select a trustee that is willing and able to administer your estate after you are gone in order to limit the courts involvement. Advantages of testamentary trusts:There are many advantages to creating a testamentary trust. The following are reasons that you may want to consider setting up a testamentary trust.1. A testamentary trust can establish that assets cannot be paid to beneficiaries until certain conditions are met. This is especially helpful for parents who wish to condition the receipt of funds for children. For example, you may condition the disbursement of assets on a child reaching a certain age, graduating from college, or marriage. 2. A will can have more than one testamentary trust, meaning that there is no limit to the number of beneficiaries one can have. This ensures that assets will get distributed according to your desires, depending on the conditions you set. 3. Creating a testamentary trust is inexpensive. A testamentary trust does not come with the same costs as establishing a living trust. This can be beneficial if you cannot afford to establish a trust because the cost of creating a testamentary trust comes out of the estate. 4. There are tax benefits in using a testamentary trust as opposed to another type of trust. Testamentary trusts only require payment of income taxes on the trust as a whole. This means that the beneficiaries are not required to pay taxes on their distributions from the trust.Disadvantages of testamentary trusts:There is one major downside to establishing a testamentary trust: a testamentary trust must go through probate. Probate is the court procedure by which assets are distributed after an individual has passed away. Probate can be extremely expensive and lengthy. Assets cannot be distributed until probate is complete and assets are then transferred into the trust.Knowing what type of trust is right for you can seem confusing and difficult. We are here to help you decide what plan is right for you based on your individual circumstances and needs. If you have any questions about how to plan for your future and the future of your loved ones, contact us today at 385.334.4030 or email@skvlegal.com.