When is Probate Unnecessary?

Probate gets a lot of negative press. You’ve probably heard stories about how time consuming and expensive it can be. Fortunately, not all property needs to go through this legal process before it passes to your heirs. So, you ask, when is probate not necessary?

When is Probate Unnecessary

The quick rule of thumb is probate is not required when the estate is “small”, or the property is designed to pass outside of probate. It doesn’t matter if you leave a will. Let’s take a closer look at each of these exceptions.

Benefits of a Small Estate

Being small can have its advantages when it comes to probate. Most states recognize the complexity of this legal process is unnecessary for transferring a modest estate. So when the deceased’s remaining property is valued below a state-determined amount, assets can be distributed to beneficiaries without going to court. In California for example, an estate valued at $150,000 or less may not need to go to court. In Nebraska, the threshold is $50,000 or less.

Figuring out if your estate qualifies as “small” only takes a few simple steps.

  1. Total up the value of your “individual” property. This typically includes bank accounts, investment accounts, business interests and real estate. The value of your personal effects, such as electronics and artwork, are also factored in. It’s unlikely more disposable items, such as your shoe collection, will be considered.
  2. Subtract the value of property with a co-owner or designated beneficiary. This topic is reviewed in greater detail in the next section. What you need to know for now is that only assets titled in your name alone, and without a listed beneficiary, go to probate. For example, a life insurance policy with a beneficiary is not included in determining your estate value. Neither does a home held as community property.
  3. Determine your state’s small estate threshold: All 50 states and the District of Columbia have laws governing most aspects of estate planning and probate. This includes setting the value of the estates that must go to probate.

Sometime can be a good idea to open probate even when it’s not required, especially if there are concerns over creditor claims or beneficiary disputes. Before relying on the small estate exemption to probate, it’s important to understand the laws of your state and how your assets are valued. Losing a loved one is a difficult time for family and friends. Don’t leave things to chance.

Property that Transfers Outside of Probate

Not all property needs to go through probate. That’s good news for beneficiaries because property that passes outside of probate is distributed much sooner. Assets that typically don’t go through probate fall into the following three categories:

Jointly Owned Property

With the “right of survivorship” avoids the probate process because ownership transfers immediately to the surviving owner(s) after a co-owner’s death. There are few ways to jointly own property that creates this right of survivorship including:

    • Community Property is the property ownership form held by married couples that has the right of survivorship. Be careful, not all states recognize the forms of joint ownership created by marriage or domestic partnerships.
    • Tenancy by the Entirety is a form of ownership only available to legally recognized couples. It works much the same way as a joint tenancy with a right of survivorship, in that effectively upon the death of one spouse, the living spouse takes the deceased spouse’s portion.
    • Joint Tenancy with right of Survivorship In this form you take property as “joint tenants” and upon the death of a joint tenant, the surviving tenant takes the deceased tenant’s portion.

Designated Beneficiary

The designated beneficiary is the person selected to inherit an asset, such as bank account, or the money from a life insurance policy. When you die, assets with a designated beneficiary will immediately transfer to the named person. Naming a beneficiary to many of your accounts simply requires filling out a short form. Assets that can have a named beneficiary include:

        • Bank Accounts stating a “payable on death” (POD) beneficiary
        • Investment accounts noting a “transfer on death” TOD beneficiary
        • Life insurance naming a beneficiary other than the estate of the deceased
        • Retirement Accounts
        • Cars or boats registered in transfer on death form

    Trusts

Trusts are designed to allow your family, friends and causes you care about to inherit from you without having to go through the long and expensive probate process. There are many different types of trusts serving a variety of purposes, including:

      • Revocable Trusts are created during the lifetime of the person making the trust. The trust can be altered, changed, modified or revoked during the maker’s life.
      • Irrevocable Trusts cannot not be altered, changed or modified once made. There trusts are good for passing larger estates and have tax savings properties.
      • A Charitable Trust is made during the grantor’s lifetime. It is often a financial planning tool, often providing the trustmaker or his designated beneficiary with lifetime income with the remainder going to charity.

 

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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from Michael Anderson https://www.ascentlawfirm.com/when-is-probate-unnecessary/

from Best Utah Attorneys https://bestutahattorneys.wordpress.com/2018/07/10/when-is-probate-unnecessary/

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Name Changes in Utah

You may be thinking of changing your name for any number of reasons — perhaps you’re getting married or divorced, or maybe you just want a name that suits you better. Whatever the reason, changing your name is a pretty simple process in most places; you can often do it yourself, without the help of a lawyer.

Why Change Your Name

Every year, thousands of people officially change their names. These are some common situations in which people seek a name change:

Name Changes in Utah

Name changes after marriage, divorce, or annulment

A woman may legally keep her birth name when she marries or she may adopt her husband’s surname — and in some states a man can now take his wife’s name as well. A husband and wife can change their last names to a combination of the two or something altogether different. Upon divorce or annulment, a spouse who has been using the other spouse’s name may revert back to a birth or former name. In states where same-sex marriage or its legal equivalent is available, one partner in a same-sex couple may also change his or her last name to the other partner’s, or the couple may hyphenate their name.

Name changes for unmarried couples

A couple need not be legally married to assume the same last name. For example, some same-sex couples choose to use the same last name as part of demonstrating their commitment to one another. The name may be the last name of one member of the couple, a hyphenated combination of the names, or an altogether different name that the couple shares.

Children’s names.

Often, a divorced parent with sole custody of the children wants to make sure the children have the same last name as the parent. If the custodial parent has changed her name since the marriage, she may want to change the children’s names as well. Sometimes legal guardians prefer a child to have their last name. Other times, mature children have a preference for a certain name.

Immigrant names.

Perhaps your great-grandfather changed his name — or had his name changed for him — when he came to the United States in the 1880s. As Americans rediscover their heritages, some want to change back to their original ancestral names. Of course, there is also the reverse situation — for someone who feels no connection with a heavy six-syllable name, shortening the name or changing it altogether may be an attractive idea.

Lifestyle and convenience.

Why be called Suzie, Jennifer, or Robert when you feel that BlackHawk, Randy, or Jon better expresses the real you? You can be as creative as you want in selecting your name—only a few legal limitations exist on choice of name. (These are discussed below.)

Name changes for transgender people.

If you have changed your sex, you may change your name to go with it, as well as your birth certificate under some circumstances.

Religious and political names.

Some people may wish to change their names to reflect religious or political beliefs. Famous political and religious leaders who have done this include Mother Teresa and Malcolm X.

Restrictions on Changing Your Name

There are some restrictions on what you may choose as your new name. Generally, the limits are as follows:

  • You cannot choose a name with fraudulent intent — meaning you intend to do something illegal. For example, you cannot legally change your name to avoid paying debts, keep from getting sued, or get away with a crime.
  • Your new name cannot interfere with the rights of others, which generally is defined as choosing the name of a famous person with the intent to mislead. For example, most judges will not approve your renaming yourself George Bush or Barack Obama unless you have a convincing reason not related to the famous politicians.
  • You cannot use a name that would be intentionally confusing. This might be a number or punctuation — for example, “10,” “III,” or “?.” (Minnesota’s Supreme Court once ruled that a man who wanted to change his name to the number “1069” could not legally do so, but suggested that “Ten Sixty-Nine” might be acceptable.)
  • You cannot choose a name that is a racial slur.
  • You cannot choose a name that could be considered a “fighting word,” which includes threatening or obscene words, or words likely to incite violence.

How to Change Your Name

In many cases, such as when you are getting married, divorced, or adopting a child, your name change can be easily handled as part of those legal proceedings. For example, if you are getting married and want to take your spouse’s name, you can use a certified copy of your marriage certificate to prove your new name. For name changes obtained during other legal proceedings, you can prove your new name using an order signed by the judge.

If your name change isn’t part of another legal proceeding, how to proceed depends on the rules in your state. Traditionally, most states allowed people to change their names by usage, without going to court. A name change by usage is accomplished by consistently using a new name in all aspects of your personal, social, and business life for a significant period of time. No court action is necessary, and it is free.

Practically speaking, however, you will probably want to get an official court document changing your name. In this day and age, with concerns about identity theft and national security, having a court order will make it much easier to get everyone to accept your new name. In fact, you won’t be able to get certain types of identification – such as a new Social Security card, passport, or (in most states) driver’s license – without a court document.

You can find out what your state requires by contacting your local clerk of court. Many state and county courts have name change information and forms on their websites. Check out the “Courts” or “Judiciary” section of your state’s or county’s home page.

Once you’ve completed your name change, you need to make sure you let all the relevant people and agencies know about your new name.

Your next best step is to talk to a family lawyer because that is who regularly goes to court and get this type of work done.

Free Initial Consultation with a Name Change Lawyer in Utah

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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from Michael Anderson https://www.ascentlawfirm.com/name-changes-in-utah/

from Best Utah Attorneys https://bestutahattorneys.wordpress.com/2018/07/09/name-changes-in-utah/

Child Custody and Taxes

When you and your spouse decide to call it quits, you’re more worried about you’re your children will think than what the IRS will think. That’s only natural — when parents are dealing with custody issues, often the furthest thing from their minds is how it will affect their tax status. When is comes to child custody, you want to make sure you do things right. So, if you want to avoid serious tax penalties, or reap significant tax benefits, it’s better to figure it out sooner than later.

Child Custody and Taxes

Tax Benefits For Claiming a Dependent Child

There are numerous standard tax benefits to claiming a child as a dependent:

  • The exemption for the child;
  • The child tax credit;
  • Head of household filing status;
  • The credit for child and dependent care expenses;
  • The exclusion from income for dependent care benefits; and
  • The earned income credit.

However, the rules are more complicated for divorced or separated parents. If you claim your child as a dependent, you cannot split these benefits with the other parent, even by your own agreement.

Can Both Parents Claim a Dependent Child?

The dependency exemption cannot be split. Generally, the custodial parent is treated as the parent who provided more than half of the child’s support. This parent is usually allowed to claim the exemption for the child if the other exemption tests are met. However, the noncustodial parent may be treated as the parent who provided more than half of the child’s support if certain conditions are met.

The custodial parent can sign a Form 8332 Release of Claim to Exemption for Child of Divorced or Separated Parents, or a substantially similar statement, and provide it to the noncustodial parent who attaches it to his or her return. Please beware that if the custodial parent releases the exception, the custodial parent may not claim the Child Tax Credit.

How Does the IRS Decide Which Parent Gets the Benefits?

To determine which parent can treat the child as a qualifying child in order to claim tax benefits, IRS rules employ the following tiebreakers:

    • If only one of you is the child’s parent, the child is treated as the qualifying child of the parent;
    • If you do not file a joint return together but both of you claim the child as a qualifying child, the IRS will choose the parent with whom the child lived for the longer period of time during the year. If the child lived with both of you for the same amount of time, the IRS will choose the parent who had the higher adjusted gross income (AGI) for the year;
    • If no parent can claim the child as a qualifying child, the child is treated as the qualifying child of the person who had the highest AGI for the year;
    • If a parent can claim the child as a qualifying child but no parent does so claim the child, the child is treated as the qualifying child of the person who had the highest AGI for the year.
    • However, please remember that although the IRS has these standards, a State Court Order can trump who gets to claim the child for tax deduction purposes.  For this reason, you need to speak with a family lawyer before you make a mistake and end up having contempt charges brought against you for violating a court order.

How Do Court Custody Orders Affect Deductions?

IRS Publication 504 covers who may claim a dependency exemption, and how, following a divorce or separation. Regardless of what the custody orders the court has issued, federal law determines your federal tax status. Therefore, the IRS requirements supersede a county or state court order.

More Child Custody Information

It is never easy navigating child custody or tax matters. You might find it valuable to talk with an experienced tax attorney or child custody attorney about your particular case.

Free Consultation with Child Custody Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will aggressively fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Agency Adoptions in Utah

There are a number of benefits that come with choosing an agency to help with your adoption. For instance, agencies typically are skilled at matching children to families in addition to being familiar with the various legal matters that go along with adoption. In most instances, an adoption agency can help prospective parents with a wide range of services, such as finding the biological parent of the child to organizing and filing the adoption paperwork. In addition, adoption agencies can help with home inspections, getting the necessary consents, and even helping parents understand various state laws that deal with adoptions.

Agency Adoptions in Utah

Private and Public Adoption Agencies

Most adoption agencies can be broken down into two categories—private and public. Each has its advantages and disadvantages, so review your options carefully before deciding.

Private Adoption Agencies

One of the main benefits of a private adoption agency is that it will provide the extensive counseling that normally goes along with adoptions: for adoptive parents, children (if old enough), and even the biological parents of the child. In addition to helping smooth the transition to a new family, counseling has the benefit of protecting the adoptive parent later on in the process. Generally, biological parents who do not receive counseling have a higher probability of not signing the paperwork when it comes time for the adoption to take place.

However, there are also disadvantages to private agencies. Private agencies are often very selective when it comes to the parents that they work with, since there are many parents looking to adopt, so the private agencies can be choosy. In addition, private agencies usually only find infants or pregnant women that do not want their babies. This means that there are generally few non-infant children adopted through private agencies. They use many screening factors to pick and choose which parents they like to work with. Typically, these factors include:

  • Age
  • Marital status
  • Income
  • Health
  • Religion
  • Sexual orientation
  • Personal history
  • Family size

Public Adoption Agencies

Unlike private agencies, public agencies normally have many children that need to be adopted. Many of these children are older, having spent their lives in various group homes and foster families, or have special needs (history of abuse, born to drug-addicted mothers, etc.). We outline the Adoption Process in Utah in other articles as well as explain the costs of adoption here.

Couples looking to adopt a newborn baby or an infant may want to look into private agencies. Additionally, public agencies often don’t have the resources to provide other services, such as counseling, that help the adoption process. But with fewer services, public agencies can charge much less than private adoption agencies. Adopting through a public agency may even be free, or the agency could even provide you with a small stipend during the process, whereas private agencies can cost tens if not hundreds of thousands of dollars.

Parents that use agencies to adopt will generally find the process much easier if they retain the services of an attorney with experience filling out adoption paperwork. Even though there is no requirement for legal counsel during the adoption hearings, it may be useful as hearings often become legally complex. You should look for an attorney who has dealt with a number of adoption proceedings and has some experience with contested adoptions, as well.

Expenses of Agency Adoptions

If you choose a private agency for your adoption, you can expect to pay a high premium for their services. If you have been matched with a pregnant woman through the agency, you may end up paying for the medical and living expenses of the mother during her pregnancy.

How much a private agency will charge for an adoption is determined by their fee structure. Some agencies charge a flat fee for each adoption. This fee can vary, depending on the age of the child. However, according to some sources, an adoption through a private agency can cost anywhere between $5,000 and $40,000.

If you choose to go through a public agency for your adoption, you will probably not be required to pay any fees, as these agencies typically receive their funding through the state.

Finally, aside from adoption agency fees, keep in mind that you may still have to hire and pay an attorney to prepare the adoption paperwork and attend court for your adoption proceedings. Paying an attorney anywhere between $50 and $500 an hour will add to the cost of your adoption.

Waiting Period and Agency Adoptions

Some agencies  require a waiting period before a child can be placed in the home of his new adoptive parents. This waiting period is usually in place to ensure that all the necessary consents have been given and signed and for any other formalities to be taken care of. During this waiting period, the child may be placed in foster care, depending on state law. Many adoptive parents do not want their child to go into foster care and often opt for a “legal risk placement.” This is where the child is placed in the new home despite not having all the consents given. The downside here is that if the birth mother decides not to give her consent, the child will removed from the adoptive home.

Finding the Right Adoption Agency

There are thousands of adoption agencies to choose from across the U.S. If you live in a densely populated state, like California, you will have more options than if you live in a less densely populated state. A good place to start when searching for an agency is the Child Welfare Information Gateway. In addition, if you know anyone that adopted through an agency, it would be good to talk with them to discuss their experience.

If you have found an agency that you think might work for you, be sure to check their reputation as well as accreditation. Your state should have a licensing department for adoption agencies, which you can check to make sure the adoption agency’s license is current and under no conditions.

International Adoptions

There are a number of American adoption agencies specializing in international adoptions. Even though you are allowed to directly adopt from a foreign country, many people choose to go through an agency, as it can be quite difficult and risky to do it yourself. Agencies that specialize in international adoptions will know the relevant immigration laws as well as the laws of the foreign nation that you are adopting from.

According to the immigration laws of the United States, any parents seeking to adopt from another nation must either be married or single and over the age of 25. Additionally, the parents seeking to adopt must file a Orphan Petition form with the United States Citizen and Immigration Service (USCIS) to show that the child’s parents have died, disappeared or abandoned the child, or that the one remaining parent cannot care for the child and consents to the adoption. If the foreign child has two parents, he or she cannot qualify for international adoption.

In addition to the Orphan Petition, there are some other documents that you will need to submit before you can proceed with an international adoption. One of these documents must be a favorable home study report from the adoption agency. If the USCIS approves your petition (and there are no other factors that will stop the adoption), you can proceed to get the child an immigration visa.

One of the advantages of international adoption is that much of the required paperwork can be completed even before you have been matched with a child. Indeed, it is often a good idea to complete the paperwork before you select the child because it can delay the adoption process if you wait to file it.

Finally, some states have their own pre-adoption laws. For instance, some states require the written consent of the birth mother before the state will approve the entry of the child into the state. To this end, some adoption agencies recommend that parents who adopt from another nation also adopt under state laws when the child enters the state. By doing so, the child should also get a birth certificate that is in English.

Free Consultation with an Adoption Lawyer

If you have a question about an adoption or if you need a lawyer in Utah, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Funeral Planning

As part of our series on Estate Planning, I wanted to make sure that we talked about funerals and planning for them. You might be surprised at what your family knows, or more likely doesn’t know, about your funeral wishes. Furthermore, it can be a very emotional decision to make if you leave it to your family, which can cause tremendous problems between family members with different views. Save your family the grief of having to make these decisions for you, and put your wishes in writing.

Funeral Planning

A second major reason for setting your wishes down in writing is cost. Planning ahead of time to secure funeral services is often far less expensive than arrangements made after a person’s death.

What happens if I don’t leave written instructions for my funeral?

If you don’t write down your funeral wishes, state law will determine who gets to make the decision for you. This alone can cause a lot of unnecessary grief, but here is the typical order that most states will follow:

  • Spouse
  • Children
  • Parents
  • Next of kin
  • Public administrator designated by a court

To many, this may seem like the right order, so why bother to write it down? Consider what happens if you have more than one child, your spouse predeceases you, and the children don’t agree. The dispute will likely go to court and cause serious discord within the family. Never rely on the state designating the right people; set your wishes down in writing and take the burden off of your family.

Shouldn’t I put my funeral wishes in my WILL?

No. Your WILL often won’t be read or accessible until several weeks, sometimes months, after your death. Wills should never be used to express desires and decisions that need to be dealt with soon after your death. Wills are more properly used for things like property distribution that can wait and aren’t time sensitive.

Where should I leave my written funeral instructions if I don’t do it in my estate plan?

The most common place people leave their funeral instructions is with the executor of their estate (also called Personal Representative), the person who is caring for you, and/or their attorney, with a copy sent to loved ones. It is crucial that even if you leave the official copies with an executor or attorney that you inform your loved ones to reduce the chances of a dispute arising if a loved one is sure you wanted something different. If your plans change over time, be sure to update those same people immediately.

What should I write in my funeral plan?

Most people’s funeral plans are guided by their ethnic, religious and cultural affiliations, but here are some ideas to consider when writing down your funeral plan:

  • Whether you wish to be cremated, buried and/or embalmed
  • The facility where you wish to be buried or cremated
  • The type of container you wish to be buried or cremated in
  • How your remains will be transported to the facility you select
  • Whether you wish to have any ceremony accompany your funeral
  • The details of any such ceremony
  • Whether you wish any pallbearers and who they will be
  • Whether you wish any sort of marker, such as a tombstone

What services are available from a mortuary?

Mortuaries and funeral homes typically handle almost all the details involving the disposal of a person’s remains, such as:

  • Retrieving and transporting the body from the place of death to the facility
  • Storing the body
  • Preparing the body for the funeral
  • Making any necessary funeral arrangements
  • Conducting the funeral ceremony

I want my funeral to be modest, what can I do to keep it cost-effective?

Funerals can be surprisingly expensive, and planning ahead can save you and your loved ones a lot of money. Determine during your life where you want to be buried, and consider paying for the services in advance if the facility will let you. This will involve quite a bit of shopping around to ensure that you are getting a good deal.

Another option that many people choose is funeral societies. The services offered by each society differ, but these societies offer valuable information on reputable funeral homes, explanation of legal rules and advice on how to make final arrangements. Generally, the society will let you predetermine what services you want at a set price. This allows you to be certain about how much your funeral will cost well in advance and plan accordingly.

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have an estate issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Draper Bankruptcy Lawyer

The truth is, if you qualify, you can file for either a Chapter 7 bankruptcy or a Chapter 13 bankruptcy. While a Chapter 13 bankruptcy reorganizes debt into a repayment plan, a Chapter 7 bankruptcy, will eliminate all of your debt (with a few exceptions). Chapter 7 bankruptcy rules determine who qualifies, how to file, and what debt is eligible for discharge.  To know if you qualify and if all of your debt will be erased, you need to speak with a bankruptcy lawyer in Utah who can help you.

Draper Bankruptcy Lawyer

Qualifying for Chapter 7 Bankruptcy

Income criteria established by bankruptcy law determine which debtors may file for Chapter 7 bankruptcy. In order to qualify under income guidelines, a filer’s income must be equal to or fall below the median income in the filer’s state. Every state has different income guidelines. A filer that falls within a state’s income criteria may file for Chapter 7.

However, if the filer’s income is above the state’s median, the bankruptcy court will require the filer to take a “means test” in order to establish eligibility for Chapter 7. The means test prevents filers with the ability to repay creditors from discharging debt. The means test assesses the filer’s debt and income from the preceding six months. If the debtor has a certain amount of income leftover every month after paying creditors, the debtor will fail the means test. Although the debtor is ineligible for Chapter 7, Chapter 13 is an option. A Chapter 13 bankruptcy allows the debtor to repay creditors in a five-year repayment plan.

Who is Ineligible for Chapter 7 Bankruptcy

Under Chapter 7 bankruptcy rules, a debtor is ineligible under the following circumstances:

  • A previous debt was discharged within the past eight years under Chapter 7;
  • A previous debt was discharged within the past six years under Chapter 13;
  • Their income, expenses and debt would allow for a Chapter 13 filing;
  • The debtor attempted to defraud creditors or the bankruptcy court; or
  • The debtor failed to attend credit counseling.

How to File for Chapter 7

A debtor must attend credit counseling prior to filing for Chapter 7. Upon completion of credit-counseling with an agency approved by the United States Trustee, the debtor can file for bankruptcy with a local bankruptcy court. There is a cost associated with filing. Check with the Trustee’s Office to learn the exact amount. A debtor is required to provide information about income, debt, expenditures, creditor holdings of secured and unsecured debt, the sale of prior property, and a list of exempt property. Exempt property is property that Chapter 7 bankruptcy rules allow a debtor to keep. Each state has its own guidelines, but exempt property typically includes clothing, furniture, and cars.

The Bankruptcy Automatic Stay

Once a debtor files for bankruptcy, the bankruptcy court will issue an automatic stay, or an “Order for Relief.” An automatic stay protects a debtor from a creditor’s attempt to collect on a debt during the bankruptcy process. In effect, all collection activities, including any pending lawsuits, must cease. An automatic stay will prevent wage garnishment, filing of liens, and the seizure of a debtor’s property such as a house, a car, or a bank account. If the bankruptcy court dismisses a case, the automatic stay also terminates and the creditor may commence collection activities.

What Does the Trustee Do?

The bankruptcy court appoints a trustee for each bankruptcy case. The trustee is responsible for overseeing the case to ensure that the debtor files the appropriate documents. The trustee must also determine whether the sale of nonexempt property will produce enough income to pay creditors. If property is unlikely to generate substantial compensation in comparison with the time and effort needed to sell the property, the trustee will likely allow the debtor to keep the nonexempt property.

The 341 First Meeting of Creditors

After a debtor has completed and filed all of the necessary paperwork for a Chapter 7 bankruptcy, the trustee will schedule a creditors meeting. At the meeting, the trustee will review the paperwork and gather any other necessary information. If a debtor fails to attend the meeting, the trustee may make a motion to dismiss the debtor’s case. Other reasons for dismissal by the trustee may include the debtor’s failure to provide a copy of income tax returns at least seven days before the creditors meeting or the failure to file a current income tax return.

In most cases, this creditors meeting is the only time the debtor will have to go to the courthouse.

If the trustee determines that you are in possession of nonexempt property, you may have to either give up the property or supply the trustee with money in the amount of the property’s value. Sometimes, though, if the property doesn’t have much value or would be too difficult for the trustee to sell, trustees will occasionally “abandon” the property, essentially allowing you to keep it despite the fact that it is nonexempt.

Getting a Discharge of Debt in Chapter 7

A few months after the creditors meeting, the bankruptcy court will hold a discharge hearing. A debtor’s unsecured debt, debt that is unsecured by property, is discharged. Secured debt, such as a car loan or a mortgage, receives different treatment. At the beginning of the bankruptcy process, the debtor selected to do one of the following: pay the creditor for the replacement value of the property, return the property to the creditor, or “reaffirm” or agree to new contract terms with the creditor.

Under Chapter 7 bankruptcy rules, the debtor must repay some debt. The following debt remains after a bankruptcy discharge:

  • Child support
  • Tax debt, unless a debtor meets the criteria to discharge federal tax debt
  • Student loans, unless a bankruptcy court determines that undue hardship exists
  • Debt created by fraudulent means

Once a discharge of debt occurs, the creditor can no longer attempt to collect the expunged debt.

Generally speaking, creditors would rather work out a viable payment plan with their debtors than initiate legal action, which not only costs money, but can prolong the collections process. Nevertheless, it is possible to be sued for debt, especially if you fail to communicate with your creditor and miss multiple payments. You may be sued by a creditor even if you have offered to make small payments on your balance, but creditors typically do not sue debtors who are at least making a good faith effort to repay a debt.

What Should you Do If You’ve Been Sued?

Usually, the first indication that you are being sued comes when a constable or a process server hands you a summons and a complaint. The complaint describes the nature and dollar amount of the claims against you for unpaid debt, while the summons is a written notification that you are required to appear in court on a given date if you wish to defend yourself against the claim. If you simply ignore the complaint by not replying with a formal answer, your inaction may result in a default judgment against you.

We always advise people to speak with a lawyer right away and have them review the summons and complaint before you do anything else.

So, if you wish to defend against a creditor’s legal claim against you — even if you agree with the claim, but would rather work out a settlement — you should generally answer the complaint.

You and/or the cosigner of your loan or account will be listed as the defendant(s). The complaint will describe why the creditor is suing and how much money it is seeking in damages (typically the amount owed, plus interest and any applicable penalties). You will have about 20 days to answer the complaint, depending on the state in which the claim was filed. You may have to pay a filing fee to the court when submitting your answer to the complaint, but low income defendants may qualify for a waiver.

Whatever you don, don’t go it alone.  It’s like doing brain surgery on yourself.  The outcome will not likely be very good.

Your answer typically will include an admission or denial of the claim, any legal defenses, potential counterclaims, and your signature. If you have income that is exempt from garnishment, such as Social Security payments, it may be included in the answer, as well.

Defenses to a Lawsuit

If you plan to defend a claim against you, an attorney can help you decide which defenses make the most sense. Since many consumer contracts include a provision for settling disputes through arbitration, the lawsuit may not even be valid. Also, the claim must be filed within the statute of limitations in your state (usually two or three years, but as long as six years in some states). Additionally, some states have different statutes of limitations for debt-related lawsuits.

A creditor suing you for an unpaid debt also must be able to document ownership of the debt. Creditors frequently sell debts to other entities, which are then considered “debt collectors” for legal purposes. They must be able to produce documentation of the debt in order to sue you, a requirement that does not apply to the original creditor. Therefore, you should request verification of the debt in writing once you are contacted by a debt collector (which may be another financial institution). If it cannot provide written verification, it may not collect from you.

Also, creditors are required by law to attach a copy of the account or written contract to the complaint, or else explain in the complaint why it is not attached. If the creditor or collector cannot produce the proper documentation, you may ask the court to dismiss the lawsuit.

Free Consultation with Bankruptcy Lawyer

If you have a bankruptcy question, or need to file a bankruptcy case, call Ascent Law now at (801) 676-5506. Attorneys in our office have filed over a thousand cases. We can help you now. Come in or call in for your free initial consultation.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

FINRA Fines Deutsche Bank Securities

The Financial Industry Regulatory Authority (FINRA) announced it has fined Deutsche Bank Securities Inc. $6 million for failing to provide complete and accurate trade data in an automated format in a timely manner when requested by FINRA and the Securities and Exchange Commission (SEC). As part of the settlement, Deutsche Bank has agreed to retain an independent consultant to improve its policies, systems and procedures related to blue sheet submissions.

FINRA Fines Deutsche Bank Securities

FINRA and the SEC regularly request certain trade data, also known as “blue sheets,” to assist in the investigation of market manipulation and insider trading. Federal securities laws and FINRA rules require firms to provide this information to FINRA and other regulators electronically upon request. Blue sheets provide regulators with critical detailed information about securities transactions, including the security, trade date, price, share quantity, customer name, and whether it was a buy, sale or short sale. This information is essential to regulators’ ability to discharge their enforcement and regulatory mandates.

Cameron Funkhouser, Executive Vice President and Head of FINRA’s Office of Fraud Detection and Market Intelligence, said, “Firms are expected to provide complete, accurate and timely blue sheet data in response to regulatory requests. Incomplete and inaccurate blue sheet data compromises our ability to identify individuals engaging in insider trading schemes and other fraudulent activity. Firms must invest the resources necessary to ensure that they are providing complete and accurate blue sheet data whenever requested – without exception.”

Utah Securities Lawyer

FINRA found that from at least 2008 through at least 2015, Deutsche Bank experienced significant failures with its blue sheet systems used to compile and produce blue sheet data, including programming errors in system logic and the firm’s failure to implement enhancements to meet regulatory reporting requirements. These failures caused the firm to submit thousands of blue sheets to regulators that misreported or omitted critical information on over 1 million trades.

Additionally, FINRA found a significant number of Deutsche Bank’s blue sheet submissions did not meet regulatory deadlines. Firms typically have 10 business days to respond to a blue sheet request. Between January 2014 and August 2015, approximately 40 percent of Deutsche Bank’s blue sheets were filed past the regulatory deadline; and likewise, from July to August 2015, more than 90 percent of Deutsche Bank’s blue sheets were not submitted to FINRA on a timely basis.

In settling this matter, Deutsche Bank neither admitted nor denied the charges, but consented to the entry of FINRA’s findings.

FINRA’s investigation was conducted by the Office of Fraud Detection and Market Intelligence, and the Department of Enforcement.

SEC: CITIGROUP PROVIDED INCOMPLETE BLUE SHEET DATA FOR 15 YEARS

The Securities and Exchange Commission announced that Citigroup Global Markets has agreed to pay a $7 million penalty and admit wrongdoing to settle charges that a computer coding error caused the firm to provide the agency with incomplete “blue sheet” information about trades it executed.

According to the SEC’s order instituting a settled administrative proceeding, the coding error occurred in the software that Citigroup used from May 1999 to April 2014 to process SEC requests for blue sheet data, including the time of trades, types of trades, volume traded, prices, and other customer identifying information.  During that 15-year period, Citigroup consequently omitted 26,810 securities transactions from its responses to more than 2,300 blue sheet requests.  After discovering the coding error, Citigroup failed to report the incident to the SEC or take any steps to produce the omitted data until nine months later.

“Broker-dealers have a core responsibility to promptly provide the SEC with accurate and complete trading data for us to analyze during enforcement investigations,” said Robert A. Cohen, Co-Chief of the SEC Enforcement Division’s Market Abuse Unit.  “Citigroup did not live up to that responsibility for an inexcusably long period of time, and it must pay the largest penalty to date for blue sheet violations.”

 KURT GOTTSCHALL NAMED ASSOCIATE REGIONAL DIRECTOR IN THE SEC’S DENVER REGIONAL OFFICE

The Securities and Exchange Commission announced that Kurt L. Gottschall has been named the Associate Regional Director for enforcement in the Denver office.

Mr. Gottschall began working as a staff attorney in the Denver office’s Division of Enforcement in 2000, before becoming a Branch Chief in 2003, and an Assistant Regional Director in 2010. Since 2012, he worked in the Asset Management Unit, which focuses on misconduct by investment advisers and investment companies. During his career with the SEC, Mr. Gottschall has investigated or supervised dozens of enforcement matters involving a variety of securities law violations, including:

  • Charges against an alternative fund manager for overcharging management fees and misleading investors about how it valued certain assetsthat ordered more than $6.4 million in monetary relief
  • An enforcement action against an Omaha investment adviser for failing to seek the most favorable mutual fund share classes in three funds that it managed
  • Fraud charges and an emergency asset freeze against the promoters of a $30 million Ponzi scheme
  • A financial fraud case against six executives of a Kansas-based insurance agency franchisor and lender

“Kurt’s deep knowledge of the securities laws, creative thinking, and extensive experience will be significant assets in his new role,” said Andrew J. Ceresney, Director of the SEC’s Enforcement Division. “The Denver office’s enforcement efforts have been immensely productive and I am sure Kurt’s leadership will only enhance their success.”

Julie Lutz, Director of the SEC’s Denver Regional Office, added, “Kurt is respected throughout the Denver Regional Office for his outstanding track record in producing significant enforcement cases, and he has been instrumental in developing the office’s Asset Management Unit into a strong vehicle for collaboration with exam staff and national unit personnel. He brings extraordinary judgment and analytical skill to leading the DRO’s talented enforcement staff.”

Mr. Gottschall said, “For the past 16 years, it has been a privilege to work with the talented, experienced, and dedicated staff of the Denver Regional Office. I am looking forward to leading the enforcement team in Denver as we continue our important mission of investor protection.”

Free Initial Consultation with a Securities Lawyer in Utah

If you need help from a Utah Securities Attorney, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Charitable Trust

You don’t need to be a millionaire to support causes that are important to you. By including a charitable trust in your estate plan, you create a legacy of good will. This trust can even allow you to support your beneficiaries and your favorite charity from the same pool of money.

Charitable Trust

A trust is a legal structure, like a mini corporation, with a trustee who holds money or property for the benefit of someone else, called a beneficiary. A charitable trust is a type of trust created for a charitable purpose. Once formed, it can’t be terminated. This means you need to be certain about your decision because you can’t regain control of your money. This article is aimed at helping you decide if a charitable trust is right for you.

Benefits of Charitable Trusts

The benefits of a charitable trust are not just for the extremely rich and famous. It can be an important part of any estate planning program. Consider the following:

  • Share the Joy of Giving: Establishing a charitable trust can be a family activity where you foster the importance of giving in younger generations.
  • Tax Benefits: There are several tax advantages you may receive depending on your financial situation. After funding your charitable trust, you are can take an income tax deduction and spread it over five years for the value of your gift to charity. Next, the property will not be included in your estate for the purposes of determining your estate tax. Finally, you can avoid capital gains tax on sale of assets such as stock or real estate.
  • Receive Income from the Trust: When you set up a charitable trust, you or a beneficiary can receive an income from the trust. Generally, you choose between receiving a fixed dollar amount each year, or a percentage of the current value of the trust.
  • Diversify Investments: A charitable trust allows you to turn property that isn’t producing income into cash, and then reinvest it all without paying a tax on any profits gained. For example, if you have $200,000 in stock that has appreciated from $10 a share to $100 a share, you can transfer it into a charitable trust and sell it without incurring capital gains tax. Then you can reinvest the money into other income-producing opportunities.

Types of Charitable Trusts

Charitable trusts are frequently referred to as “split-interest trusts” because these trusts typically have two beneficiaries—one charitable and one non-charitable. To understand this better, let’s look at the two forms a split-interest trusts can take:

Charitable Lead Trust (CLT)

With a CLT, the charity benefits first by receiving income for a pre-determined number of years or for someone’s lifetime. After this period, the remaining assets go to a non-charitable beneficiary. For example, you can direct annual payment to your favorite charity for 20 years, and then have you grandchildren receive the remainder. When the assets are transferred, you will receive an immediate charitable deduction for the IRS-determined value of the gift.

Charitable Remainder Trust (CRT)

A CRT is the most popular form of charitable trust. This trust first makes payments to one or more non-charitable beneficiaries. This can be you or someone you select. The charity will serve as the trustee and will be responsible for investing, protecting and managing the trust funds. The charity will pay the income for the beneficiary’s lifetime, or a pre-determined number of years. At the end of the term, the charity receives the trust’s remaining assets.

Charitable Trust Lawyer

First, you need to select the type of trust that best matches your goals and decide how much you can afford to transfer. You can fund the trust with cash, stock, real estate, business interests, art or other valuable assets.

Next, you will set up the trust with a financial institution, such as a bank or investment firm. You will provide detailed instructions on how payment amounts are to be calculated and the frequency payments will be made.

At this point, you will designate the charity or causes you would like to benefit from the trust. The charity must be an IRS approved charity. Remember in a charitable remainder trust, the charity acts as the trustee and manages the trust to produce income for you or your designated beneficiary.

Free Consultation with a Utah Charitable Trust Lawyer

When you need help with the formation or the administration of a charitable trust, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Parent’s Rights, Custody and Liability

Parent's Rights, Custody and Liability

There are many facets of parenting. Two of these are the rights that parents hold regarding the ability to see and raise their children and the responsibilities they have for supporting their children and their children’s actions. Not every family is the same, so determining these rights and responsibilities can be difficult. However, there are legal processes for both the creation and termination of parental privileges and obligations. Child Custody isn’t the only right you have as a parent. As you’ll discover in this article, you could be liable for what your child does.

In this section, you’ll find information on parents’ liability for the acts of their children, the termination of parental rights, and more. Whether you need to learn the basics about parental liability, need to know how parents’ rights can be formally ended, need resources to help children deal with issues such as divorce or adoption, or just want to know the basics on child related tax deductions, use the resources below to learn more. This is why you should talk to a Divorce Lawyer in Salt Lake City Utah about what’s going on in your situation.

Parental Rights

The legal concept of parental rights generally refers to a parent’s right to make decisions regarding a child’s education, health care, and religion, among other things. If parents are separated or divorce, these rights can extend to custody and visitation. While these rights can be automatic in certain family structures, such as with married parents at the birth of the child, it may be necessary for a parent to petition a court for the rights, as in cases of disputed paternity.

Parental rights can also be terminated, either explicitly or implicitly. A father who never claims paternity, or against whom paternity is never established, has no parental rights. A father can also voluntarily relinquish parental rights. A court can also terminate rights for either parent, against his or her wishes, in cases of abuse, neglect, and abandonment, or if a parent has a long-term mental illness, alcohol or drug impairment, or incarceration period.

Parental Liability

Parents can also be legally responsible for their children’s behavior. State laws can vary, but from the time a child is around 8 years old and until he or she reaches the age of majority (18 in most states), parents could be subject to civil lawsuits or even criminal sanctions for the negligent or criminal acts of a child. In civil cases, if a child’s negligence causes an injury to another, his or her parents may be ordered to pay damages or restitution. In the criminal sense, parents could be punished for their children’s delinquency or absence from school, gun crimes, or Internet crimes.

Like parental responsibility, parental liability can also be terminated. Normally, this occurs automatically when a child reaches the age of majority and is considered an adult in the eyes of the law. However, if a parent’s legal rights are terminated for any reason, their legal liability is normally terminated as well.

Legal Help for Parents

Navigating the legal rights and responsibilities of parents can be emotionally and legally challenging, especially if a parent is trying to establish rights or terminate liability. An experienced family law attorney can help you understand the relevant law or help guide you through the legal paperwork and procedures.

Free Consultation with a Custody Lawyer in Utah

If you have a question about family law or if you need to start or defend against a divorce or custody case in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Living Trust

A trust is an arrangement whereby property is managed by one person, called “the trustee”, for the benefit of another person, called “the beneficiary”. The trustee holds legal title to the property, and owes a fiduciary duty to the trustee. The trust is created by the grantor, who entrusts his or her property to the trustee for the benefit of the beneficiary of his or her choice. The grantor does not have to designate someone else to be the trustee, but may choose to be the trustee himself. Because the grantor may revoke the trust at any time, it is often referred to as a “revocable trust.”

A living trust, or “inter vivos” trust, is a trust that is created by the grantor during the grantor’s lifetime, rather than upon the grantor’s death.

Living Trust

What are the terms and conditions of a living trust?

All of the terms of the trust are set out in the trust document itself. This usually takes the form of a deed, called a “Declaration of Trust,” and is governed by local law, so be sure to consult the laws of your own state. The trustee has the legal obligation to administer the trust according to the terms of the trust and in compliance with local law. If the trustee does not administer the trust properly, he or she can be held personally liable for certain issues that arise. For example, where the trustee does not properly invest to expand the trust fund, many courts have found that trustee liable for the lost income.

Why do people create living trusts?

Living trusts are designed to avoid probate proceedings. Probate simply refers to the court-administered process of paying debts and distributing property to heirs upon one’s death. This is a very timely and costly process. Heirs can often expect to wait months before receiving anything, and by the time they do, the assets have been diminished significantly by court costs and attorney’s fees.

Other common reasons to create a living trust include reducing taxes, ensuring financial privacy, and regulating the use of assets (in case the owner becomes incapacitated).

How does a living trust avoid probate?

Probate is the process that courts use when a property owner has not designated who the property should go to after her death. All of the property transferred according to the living trust avoids probate, however. Upon the grantor’s death, the trustee transfers ownership of the property to the beneficiary, as designated in the trust document. This usually only takes a few weeks, compared to probate which can take months. There are no lawyer’s fees or court costs to pay for settling a trust, so it saves money. Once ownership of all of the property in the trust fund has been transferred to the beneficiary per the terms of the trust document, the trust ceases to exist.

What are the costs involved in creating a living trust?

Like a will, a trust is not too complicated for a person to create without a lawyer. There are many self-help books providing living trust information and computer programs that walk people through how to create a Declaration of Trust — the document that creates the trust. Of course, it is always a good idea to consult an attorney regarding questions that may arise.

There may be filing fees for filing the living trust or for transferring property deeds into a trust, but because no court proceedings are involved, like in probate, court costs are avoided. These filing fees vary per state, so be sure to check your own state’s filing fees. Some states, like Utah, even vary the amount of the fee based on how large the estate is.

The trustee is entitled to compensation for any work done to administer the living trust, and may legally take any reasonable amount from the trust fund. The trustee does have the option of waiving this fee.

How hard is it to keep a living trust?

There is quite a bit of paperwork involved. After the initial creation of the Declaration of Trust, the grantor must create and sign new deeds each time she adds an asset to the trust. For example, if the grantor decides to leave her own house to a beneficiary in the trust, the grantor must sign a deed, specifying that she owns the house as trustee of her living trust. This paperwork may seem burdensome; however, the process is much more efficient today because living trusts have grown to be so common.

Is a living trust document ever made public, like a will?

No. All documents that go through probate, including wills, become public record. Remember, though, that living trusts do not go through probate. Therefore, living trusts are never made a matter of public record.

Is property in a living trust protected from creditors?

No. Both during life and after the grantor’s death, all his assets held in the living trust are subject to lawful debts. For example, if your home is held in trust and passes to your children at your death, a creditor could demand that your children pay the debt up to the value of the home. Because of title laws, real estate ownership is always a matter of public record. This is the way in which creditors can find who inherited the real estate. Tracking down these heirs is more difficult in a trust verses a will, because a will is automatically a matter of public record. When the real estate passes to heirs via a living trust, however, the creditor must go through the process of title searching, which can be a long, tedious process and may not be worth the creditor’s time.

Probate can protect heirs from creditors who fail to file claims within the given window of time, though. During probate, known creditors must be notified of the debtor’s death. Once notified, those creditors have a deadline before which to file against the assets. If they miss the deadline, all of their claims cease to exist.

Should I still make a last will and testament if I have a living trust?

Yes. A will often contains a clause that names the recipient of all property not specifically left to a beneficiary. For example, if someone obtains ownership of a car shortly before death, and does not include the car in his last will and testament, that person may not have had the title of the car transferred to his trust, either. If he did not have a will, that car would fall to probate. However, if he had a will containing the above-mentioned clause, the car would go to the recipient named in the will.

Some jurisdictions recognize what is called a “pour-over will.” This is a type of decree that orders all of the grantor’s property to “pour” into her trust, at the time of her death. That way, all of her assets would be distributed to the beneficiaries named in the trust, and none of her assets would fall into probate. Not all states recognize this; so, be sure to check your state’s laws.

Without a last will and testament, any property that is not transferred by a living trust will be distributed to the closest relatives. This distribution will be determined by the courts according to state law. Each state has devised distribution laws, according to how a reasonable person would want their assets distributed. Even so, courts may not distribute your property the way you would want. It is best to create a will to specify how you want your property distributed after your death.

Will a living trust reduce estate taxes?

Some can. A simple living trust does not affect taxes, whatsoever. However, more complicated living trusts, which include numerous valuable assets, can substantially reduce estate taxes.

An AB trust (also referred to as “credit shelter trust”, “exemption trust,” “marital life estate trust,” and “marital bypass trust”) is designed specifically for married couples with children. Each spouse leaves the other spouse property in trust, for life, and then to the children. For example, if Husband and Wife create an AB trust, and Husband dies, Wife receives all of the property of the trust. Then, when Wife dies, her interest in all of that property passes to their children. This AB trust can potentially save up to hundreds of thousands of dollars in estate taxes.

Free Consultation with a Utah Living Trust Lawyer

When you need a living trust in Utah, call Ascent Law for your free consultation (801) 676-5506. Our living trust lawyers want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506