Wills and Trusts
Proper estate planning with an experienced attorney ensures your estate is administered efficiently according to your wishes. Another key goal of estate planning is to minimize taxes and other expenses, thereby preserving the property intended for your beneficiaries. Failing to create a quality estate plan will likely expose your loved ones to avoidable conflict, expense, and delay. Importantly, an estate plan will reduce the risk your loved ones will be tempted to contend over the details and property of your estate.
A comprehensive estate plan generally includes a revocable (“living”) trust, last will and testament, power of attorney, health care directive, and property transfer documents. Many inquire about the difference between a will and a trust. Both are methods of ensuring organized estate administration, but the documents function in different ways. A revocable trust has become a widely used tool because it is a highly flexible document that grants authority to govern an estate with minimal oversight from courts and other third parties. In addition, a trust can help minimize taxes and protect your family’s privacy during the estate administration process. A primary reason for using a trust is to guarantee that only those you trust have control over how your wishes are implemented. As with most other estate planning documents, revocable trusts can be amended even after they have been signed. As your family situation changes over the years, it is vital to touch base with your estate planning attorney to confirm your documents continue to reflect your estate planning goals.
An estate plan that incorporates a revocable trust is typically more complex than one relying on a simple will. Therefore, families who would like to take advantage of the benefits of a trust must work closely with an attorney who can guide them through each step of the process, from planning and drafting to execution, funding, and administration.
Last Will and Testament
A last will and testament (“will”) is one of the most basic documents used to govern the administration of an estate. A will directs how an estate is to be distributed upon death and who should be left in charge of the estate. Eric M. Swinyard commonly recommends using a “pour-over will,” which is a type of will that transfers money or property to a trust. The trust, in this structure, would then act as the primary estate administration document. Eric usually advises that clients use both a will and a trust to secure and manage their assets.
Power of Attorney
A power of attorney is created to grant your named agent the power to deal with your assets (including business interests), usually in the event of your incapacity. The power of attorney grants your agent broad powers to manage your affairs, including the disposal, sale, and conveyance of property. In some situations individuals may need a power of attorney that immediately grants their agent powers regardless of the health or capacity of the principal. In Utah, powers of attorney can be effective in a variety of circumstances, the implications of which should be discussed with an attorney beforehand.
Health Care Directive
An advance health care directive ensures your medical wishes are honored even if you are unable to communicate those wishes to health care providers. This document gives your named agent authority to make major medical decisions on your behalf if you become incapacitated. The health care directive can include the power to sign consent forms or releases with health care providers. The directive also functions as a “living will” for end-of-life decisions.
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Special Needs Trust
Physically or mentally disabled persons often depend on important government-funded programs, such as Medicaid and Supplemental Security Income. These and other benefit programs, including programs funded by the State of Utah, often consider an applicant’s assets and/or income when determining eligibility. A proper estate plan will ensure your beneficiaries receive as much of your estate as possible without jeopardizing their eligibility for these benefit programs. Eric M. Swinyard is familiar with the complexities of creating an estate plan that protects the interests of beneficiaries enrolled in such programs. By creating a special needs trust (also known as a “supplemental needs trust”), Eric will enable you to leave assets to your beneficiary in a way that supplements – rather than replaces – the benefits he or she receives from other sources.
Blended Family Estate Plans
Eric M. Swinyard understands that each family situation is unique and provides its own opportunities as well as risks. Second marriages require careful estate planning in order to maintain family harmony after the death of the parents. An estate plan for a blended family requires consideration of the needs of both parents as well as their children – children from the present marriage in addition to those from previous relationships. If the parents of a blended family die without an estate plan in place there is no guarantee the children will receive the share of the estate to which they are entitled. Hiring an attorney to prepare an estate plan can help avoid potential complicating factors that often arise with blended family estate plans.
Asset Protection Trusts
The Utah legislature has enacted a statute that outlines the requirements and benefits of asset protection trusts. Asset protection trusts are especially beneficial for high net worth individuals or those vulnerable to lawsuits. Professionals such as physicians and dentists often have a greater need for asset protection trusts and other asset protection strategies. Unlike standard revocable trusts, asset protection trusts are primarily designed to protect assets from creditors and judgments. Of course, this assumes that the trust is created and maintained in compliance with Utah’s extensive asset protection trust laws.
Many people assume that their pet will be taken care of without proper estate planning. Casual agreements with friends or family members to care for pets are rarely enforceable and do not provide the certainty that comes with an estate plan. Eric will work with you to ensure that your pet’s needs – including veterinary care, exercise, and boarding – are provided for after you pass away.
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