Tag: wills and trusts

Top Secret Estate Plan

Top Secret Estate Plan

 

I am currently involved in a probate case that is going to be more complicated than it needs to be.  I represent the sister of a deceased man who was very careful and most likely has a will or some other plan in place. However, that estate plan is likely in one of several safes in his home.  He and He alone had the combinations.  We are initially proceeding under intestacy (without a will) and may find that we need to make an amendment to the probate if we discover a plan once we get the legal authority to open the safes.

Give your family a copy of your estate plan.  Give them copies of any amendments and updates.  Make sure they know where the originals are kept and have access to them!

Imagine if we find a complex estate plan.  We may have to make a lot of changes in the current probate.  We will also spend a lot of money on locksmiths and others before we can really feel safe proceeding.

Asset Protection Trusts

Asset Protection Trusts

 

Asset Protection Trusts are a relatively new development and they are statutory. Some states offer these; some states do not. The requirements vary from state to state and I’m speaking only of Utah when I describe the asset protection trust concept.

 

A domestic protection trust is one in which a person or persons place assets in an irrevocable trust that meets the specific requirements of Utah law. Some of those requirements are that the grantor or creator of the trust has limited power over the trust after it is created. Often this trust will have more than one trustee.

 

Who should Consider Setting up a Utah Asset Protection Trust(UDAPT)?

You should consider a UDAPT if you are in a high-liability profession, or if you have a high net worth. It is also a good option if you just want to shield some of your hard-earned assets from creditors such as a home, investment accounts, a business, a cabin, a ranch, or other real estate from creditors.

 

UDAPTs are frequently used to protect a nest-egg. They help to ensure that you have enough assets protected to live a comfortable life, especially given the litigious and unpredictable world we live in where lawsuits can be brought against you for any reason or no reason at all.

 

How does a UDAPT Work?

 

Under Utah’s asset protection trust laws, you are allowed to fund a trust with any type of assets you want to protect. You maintain complete control over the investment of the assets in the trust, and you can name yourself, your spouse, and your family as beneficiaries of the trust to receive the assets if you need them in the future, so long as you have a co-trustee who makes distribution decisions.  The statute does not prevent you from naming a trusted friend, family member, or advisor as the co-trustee.

 

For the trust to be effective in shielding your assets against creditors, the trust must have at least one Utah trustee, it must hold some Utah assets (but it can also hold assets in other states), and you must sign an affidavit declaring that you are still solvent (meaning you have more assets than liabilities) after making any contribution to the trust.

 

The trust must be irrevocable, but flexibility can be built into the trust to allow for the removal and replacement of trustees and to change the ultimate distribution of the assets upon your death.  Once you have appropriately moved assets into your UDAPT, those assets are immediately protected against future involuntary creditors.

 

Existing creditors are limited to bringing a fraudulent conveyance claim within the later of two years after the property is transferred to the trust, or one year after the creditor reasonably could have discovered the transfer.  This period can be reduced to 120 days by sending notice to known creditors, and by publishing notice for unknown creditors.

 

Often, it is good to establish a trust protector to assist in the management and oversight of trustees other than yourself.

Solutions are our Focus!

We Focus on Solutions!!

I had an experience lately. A client paid a large Salt Lake firm more than $20,000 on a case that was valued at less than $3000 if he won the whole case.  Can you imagine that?  I was stunned and wondered how this happened. Then, I think I figured it out.  His attorneys were focused on the process, following the rules, instead of finding solutions to his problem.  There are these things in the law that most people, including attorneys, are clueless about called the Rules of Civil Procedure.  Here is a link to the Utah Rules: https://www.utcourts.gov/resources/rules/urcp/

What are The Rules of Civil Procedure?

The Rules of Civil Procedure are the rules that say how to do things in court.  There are over 100 of them in Utah.  Crazy!  These rules set deadlines for many things.  They say that no matter what you must do this and you must do that.  Some of the most costly ones are the rules governing discovery.

What is discovery?

Discovery is the process where people in a lawsuit exchange required information about the case with everyone else in the case.  This is the process that cost my friend above so much money.  Did circumstances require that much discovery in his case?  The strict reading of the rules says that you have to do it.  But, was it in his best interest to do it?  I do not think so.

We approach cases looking for solutions

Here at our firm we approach cases with a greater focus on the solution to our client’s problem over focusing on doing all the discovery we can in every case.  Some cases will require it; there is no getting around it.  Often we are able to talk to the other attorney and decide what information is absolutely vital and focus on getting that information exchanged and then we dive into finding solutions.

How is this different?

This is a different way of approaching a case than a lot of firms. It is faster, less painful, and usually results in a faster, less expensive and better outcome for our client.  For my friend I reviewed the contract that gave rise to his problem and in a couple of yours found a solution that could save him an additional $30,000 on the contract that this firm had not seen in $20,000 plus in attorney fees.

Call us! We can help!

So, if you want to hire a firm that is going to pay attention to finding the solution, you need please give us a call.  We can help! We can find solutions!

Special Needs Trusts

Special Needs Trusts

Special needs trusts are set up to allow people with special needs to qualify for or maintain “needs based” government benefits such as Medicaid and Supplemental Security Income (“SSI”). In general, eligibility for these programs require that a persons assets held in a special needs trust will not be seen as “countable” for Medicaid and SSI eligibility. However, those assets held in the trust can still be used to supplement needs based government benefits and provide many of the good things in life such as electronics, companionship, vacations, hair care, dental, education, etc…

Two Types

Self settled is when a person sets up their own special needs trust for their own benefit.

Third party is when someone sets up a special needs trust for someone else.

Basic Rules

There are specific requirements for each of the types of special needs trusts, however they should follow the following rules.

  • Trustee shall only supplement government benefits and never displace government benefits.
  • The Trustee shall not distribute cash or property directly to the beneficiary
  • The beneficiary may not demand payment or that assets be distributed to the trust.
  • Never give the disabled beneficiary a general or limited power of appointment.
  • Trustee shall not make any distributions that would disqualify the beneficiary from needs based government benefits
  • Trust assets are not available to the beneficiary
  • Trustee shall not allow beneficiary to co-mingle funds with the trust assets.
  • The trustee shall not reimburse the beneficiary directly for purchases he or she makes.
  • The Trustee may pay directly for services, provided the Primary Beneficiary does not receive any assets as a result of such expenditure that can be converted to cash.
  • The Trustee may distribute a gift certificate directly to the Primary Beneficiary if the certificate is nontransferable and nonrefundable and cannot be converted to cash.

If you have a situation where you think a special needs trust would benefit you please contact us at 435-674-2564 and ask for Travis Christiansen.

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