Friday, 31 August 2018

Real Estate Investment Company in Utah

Real Estate Investment Company in Utah

A new client asked us:

Are there any special requirements for a Utah real estate investment company – either a corporation or an LLC that owns real estate compared with other LLCs or companies or corporations?

Are there any formation for compliance requirements that I need to be aware of?

Lawyer for Real Estate in Utah Responses

Answer from one of the lawyers in our office:

Typically speaking, no. The requirements would be the same as any other LLC, company or corporation, depending on what you set up.

A full real estate consultation would be necessary to necessary to properly advise you. I am a real estate agent in addition to being an attorney in Utah.

Answer for another attorney in our firm:

The requirements for organizing a corporation or LLC that owns and operates real estate are no different than those for corporations or LLCs engaging in any other businesses.

Another response from a real estate lawyer:

No, there are no special requirements for a Utah limited liability company which owns real estate. The requirements are the same.

Oh and this lawyer provided this disclaimer: The foregoing discussion does not establish an attorney-client relationship, is qualified by the limited facts presented above, and should not be relied upon as legal advice. To obtain definitive legal advice upon which one can rely necessitates retaining an attorney who is qualified in this particular area of the law. That’s good advice right. You should call us if you have any additional questions or concerns.

Free Initial Consultation with a Real Estate Investment 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
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What to Do if Your Spouse Delays the Divorce Process

What to Do if Your Spouse Delays the Divorce Process

Divorce can be a long and stressful process, especially if your former partner seems to be trying to delay it as much as possible. If this is happening to you, it’s important to understand that there are strategies available to fight back against the delay tactics and keep the case proceeding as smoothly and efficiently as possible.

Steps to take to prevent delays

In some cases, individuals attempt to delay a divorce in hopes of repairing the relationship. They could ask the court for extensions, or simply refuse to respond to any filings you have made in court.

As soon as the deadline for responding to the paperwork has passed, you are able to seek a default judgment, in which a judge gives you exactly what you are seeking in your divorce petition. Because your spouse did not respond, the court could assume that he or she agrees to the terms you have set. You will still need to show the court you provided your spouse with proper notice, but the chances of a positive result are good.

What’s more frustrating is when your spouse does respond, but takes as long as possible to do so. There are situations in which individuals will request extensions, regularly cancel depositions and refuse to agree to mediation times. You might have to take stronger action to get your former spouse to cooperate in these situations. For example, if the individual continually cancels depositions, you may file a formal motion to have the court take action.

Fraudulent Marriages

Many individuals are happy to be married once. Many individuals are happy when that first marriage ends and would never think of marrying again. However, one woman, in the Bronx, was so enamored with the idea of being married that she didn’t stop with one marriage, or even two. She was married ten times, and at one time was married to eight men at the same time.
In fact, Liana Barrientos was not, it would seem, marrying for love. Rather, she was part of a larger scheme to assist men in entering this country while avoiding ICE detection. She has been charged with filing a false instrument, her application for a marriage license and the signed marriage license itself. Additionally, she is being investigated by homeland security for her actions.

While this situation is not very common and has therefore grabbed the attention of the media, there are situations where an individual may have been previously married and abandoned their first spouse only to start a new life with a new “spouse”. If both parties are happy it would seem that this situation should not be a problem. However, where a spouse disappears and “re-marries” both the old spouse and new spouse may suffer.

In the State of Utah property acquired during a marriage, with limited exceptions, will be considered joint property. If a prior spouse is abandoned, all of their acquired wealth is subject to equitable distribution should a prior spouse re-enter that spouse’s life. This prevents a spouse from pursuing their own happiness as they are constantly in danger of having their property “equitably distributed” between themselves and a spouse who has been absent and holding themselves out as married to another person.

With respect to a second, or third or fourth, spouse, they will not be entitled to any equitable distribution of their “spouse’s” assets. As there is no valid marriage, there would be no equitable distribution and therefore, if the parties were to divorce, the “new spouse” would be prevented from obtaining a share of the martial assets, as there would not, in fact, be any marital assets.

Free Initial Consultation with Lawyer

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
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Thursday, 30 August 2018

Is a Living Trust Necessary?

Is a Living Trust Necessary

Living trusts are a great way to leave your loved ones property without having to go through the expensive hassle of probate. Probate refers to the process of a special court distributing one’s property to heirs after death. This can be a very lengthy and expensive process, especially with larger estates. There are a number of ways to avoid probate, including pay-on-death bank accounts, holding joint tenancy with your partner, life insurance policies, gifting assets before death, and naming beneficiaries on your retirement accounts. All of these are limited to certain types of property. A living trust has no such limitations. Living trusts allow you to avoid probate, work within the broad planning flexibility a will offers, and gift pretty much all of the property of your estate to trusts.

However, a living trust still may not be necessary in your case, depending on your age, size of your estate, and marital status. As wonderful and beneficial as they are, living trusts do have drawbacks. Setting up a living trust takes longer to establish, involves more routine upkeep and maintenance, and is harder to alter, compared to a last will and testament. It is best to use a lawyer when setting up a living trust, but this can cost more than $1,000. Even after setting up a living trust, you still should create a last will and testament, as a back-up. The benefits of a living trust can still outweigh the drawbacks, however, if setting up a living trust is right for your situation.

Consider the following factors and decide if you should set up a living trust.

Your Age May Be a Reason Not to Create a Trust

Because of the cost and energy of maintaining it, setting up a living trust may not be right for you if you are under the age of 55 and relatively healthy. A living trust serves you no benefit during your lifetime. A young, healthy person will probably not have to worry about the costs of probate for years to come. Until then, creating a will that is easier to create and maintain will suffice in transferring your property should something happen to you unexpectedly. Furthermore, recent techniques in avoiding probate are becoming more and more accepted. As you get older, these techniques will more than likely become even more common, mooting the need for you to worry about living trusts.

Do You Have a Small Estate?

The bigger your estate, the more assets you have at risk of losing in probate. Therefore, the wealthier you are, the more you can potentially save by avoiding probate. The types of assets also make a difference. If you own something, like a business that would be harmed if tied up in probate proceedings, going forward with creating a living trust might be sensible. Even if you are young and healthy, it would be smart to avoid risking your executor having to report on your business to a judge for a long length of time.

What is your Marital status?

Married couples who plan on leaving their property to each other have less of an interest in setting up a living trust, especially if you own your large assets jointly. Probate is not necessary for those types of assets. For property that is not owned jointly, most probate procedures are pretty good at speeding up the process for surviving spouses, which also makes it cheaper.

Not Sure If You Should Set Up a Living Trust? Call an Estate Lawyer

There are numerous reasons you might want to set up a living trust. Talk to an experienced trust attorney to find out if a living trust is right for your particular situation.

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
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Can I Divorce My Spouse If He or She Is In Jail?

Can I Divorce My Spouse If He or She Is In Jail

The short answer is yes.  Yes, you can divorce your spouse if they are in jail.  According to Domestic Relations Laws in Utah, incarceration in prison does not preclude an individual from filing for divorce against a spouse or having divorce filed against him or her by a spouse. In fact, imprisonment for three continuous years or longer is acceptable grounds for divorce in Utah.

There are two options for divorcing a spouse who is imprisoned:

  • If the sentence is for three years or longer and at least three years have been served, the non-incarcerated spouse can file for fault-based divorces on grounds of imprisonment.
  • If the sentence is for less than three years or if less than three years have passed, the imprisonment grounds are not yet valid. But either spouse can file on no-fault grounds, citing irretrievable breakdown of the marriage (or the non-incarcerated spouse can wait the full three years before filing).

Additionally, the non-incarcerated spouse has up to five years following his or her spouse’s release from prison during which the incarceration grounds remain valid, if at least three continuous years of the sentence were served.

How do I initiate divorce from my incarcerated spouse?

First and foremost, in order to obtain a divorce from an incarcerated husband or wife, you must meet residency requirements in Utah. As the spouse filing for fault-based divorce, you’ll have to serve your incarcerated spouse with the appropriate documents — a Summons, a Complaint and an Affidavit of Service — all of which your attorney can help you prepare.

Filing for divorce while incarcerated

If you are in prison and wish to divorce your non-incarcerated spouse, you can do so by citing irretrievable breakdown, or, if you have reason to believe that fault-based grounds such as adultery occurred, you can cite that. It should be noted that you are entitled to a court-assigned divorce attorney if you cannot afford representation on your own.

Understanding Your Children’s Legal Rights

Minor children under the age of 18 years old are afforded certain rights to protect their best interests as they grow up. It is important that divorcing parents understand the legal rights of their children so that they can report any violations to their attorney or local authorities. The following are several key legal rights of kids:

  • Right to proper care: The state of Utah has laws in place that protect the fundamental needs of children. When an individual becomes a parent, they are responsible for providing proper shelter, food, clothing and health care to their child. Parents who do not provide these necessities for their children may have parental rights taken away.
  • Right to education: All children have a right to attend school. In the case of disabled children, schools must provide special education for the child whenever possible. Divorced parents are responsible for ensuring that the child is properly enrolled in school and facilitating all necessary transportation and financial support needed to secure an education.
  • Right to legal representation: If you fear your child may be abused or neglected while in the other parent’s care, you may enlist the support of an attorney who can help you modify custody orders with the help of a judge. The court places the best interests of children as a top priority in all custody and child support proceedings.
  • Right to court-ordered visitation: When a judge grants a noncustodial parent visitation rights, it means that the child is legally permitted to spend time building a relationship with the parent. Parents with custody cannot interfere with visitation schedules or attempt to restrict the child’s access to the noncustodial parent.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will 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
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Wednesday, 29 August 2018

Estate Administration

Estate Administration

Any probate lawyer will tell you that wills are the most common way for people to state their preferences about how their property should be handled after their death. A will is similar to an instruction booklet for the probate court, the court that oversees estate administration and disputes over the will itself. The will provides the court with guidance as to how to distribute the deceased person’s assets in accordance with his or her wishes.

In and Out of Probate

Wills have been referred to as “tickets to probate court.” In large estates, the only way to legally transfer assets in accordance with the will is through the probate process. However, wills only control probate assets, that is, those assets that can be transferred by the probate court. Some assets do not have to be probated and generally are not controlled by a will. These assets include:

  • Life insurance proceeds, which are paid to the beneficiaries designated in the policy.
  • Property held in joint tenancy, which provides that, upon the death of one joint tenant, the deceased person’s interest automatically passes to the surviving joint tenant(s).
  • Property held in living trusts.

Because these assets are transferred by means other than the probate process, a will generally does not control how they are distributed.

Example: A person names her spouse in a beneficiary designation to receive her life insurance proceeds on her death. In her will, she names her sister to receive those same proceeds. Because the proceeds are paid directly to the spouse, they never become part of the deceased person’s estate. Therefore, her will, which only controls her estate, cannot override the beneficiary designation.

Will Validity

A will must meet certain formal requirements in order to be valid, otherwise it may be challenged during the probate process. These requirements vary from state to state. Generally, the person making the will (the “testator”) must be an adult of sound mind, meaning that the testator must be able to understand the full meaning of the document. Wills must be written in most circumstances. Some states allow a will to be in the testator’s own handwriting, but a better and more enforceable option is to have a typed or pre-printed document.

A testator must sign his or her own will, unless he or she is unable to do so, in which case the testator must direct another person to sign the will in the presence of witnesses, and the signature must be witnessed and/or notarized. A valid will remains in force until revoked or superseded by a subsequent valid will. Some changes may be made by amendment (a “codicil”) without requiring a complete re-write.

Limitations of a Last Will and Testament

Some legal restrictions prevent a testator from giving full effect to his or her wishes. Some laws prohibit disinheritance of spouses or dependent children. A married person cannot completely disinherit a spouse without the spouse’s consent, usually in a prenuptial agreement. In most jurisdictions, a surviving spouse has a right of election, which allows the spouse to take a legally determined percentage (up to one-half) of the estate when he or she is dissatisfied with the will. Non-dependent children may be disinherited, but this preference should be clearly stated in the will in order to avoid confusion and possible legal challenges.

Will Executor or Personal Rep

A will usually appoints an executor or personal representative to perform the specific wishes of the testator after he or she dies. The personal representative consolidates and manages the testator’s assets, collects any debts owed to the testator at death, sells property necessary to pay estate taxes or expenses, and files all necessary court and tax documents for the estate.

Dying Without a Valid Will is called Intestacy

While wills may be “tickets” to go through the probate process, not having a will forces the probate court to distribute the property without guidance from the testator. Dying without a will leaves an estate intestate, and a probate court must step in to divide up the estate using legal defaults in order to give property to surviving relatives. A personal representative must still be appointed, but the court must choose someone rather than following the deceased person’s wishes.

The court pays any unpaid debts and death expenses first, and then follows the legal guidelines. The rules vary depending on whether the deceased was married and had children, and whether the spouse and children are alive. If the intestate individual has no surviving spouse, children or grandchildren the estate is divided between various other relatives. Therefore, intestacy means that people who would never have been chosen to receive property may do so. Additionally, state intestacy laws only recognize relatives, so close friends or charities that the deceased favored do not receive anything.

If no relatives are found, the estate goes to the government in its entirety. Intestacy also poses a heavy tax burden on estate assets. When made aware of the consequences of intestacy, most people prefer to leave instructions rather than subject their survivors and property to mandated division.

Probate isn’t Necessary in Every Case

Where some small estates are concerned, a will may not have to be probated. If the value of the assets in the estate is below a threshold established by state law, a short estate proceeding may avoid the probate process entirely.

Free Consultation with a Utah Estate and Probate Attorney

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
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Financial Fear During Divorce

Financial Fear During Divorce

Fear of a compromised financial future is common during divorce. Understanding the fear—and knowing what to do about it—is essential.

Because of the requirement to divide debt and assets during divorce, couples of all ages are concerned about getting their fair share. For individuals closer to retirement, the need is more urgent with fewer years remaining to rebuild a nest egg.

With longer term marriages, a significant disparity may exist between the earning potential of spouses. For a less-monied spouse who has been out of the workforce, financial worries can include:

  • An incomplete picture of the assets and income of the household
  • Lack of knowledge about household debt load, leading to unfortunate surprises when the true financial condition becomes known
  • A poor understanding of the household budget and lifestyle costs
  • Insufficient individual credit history
  • Financial and other threats made by a partner in hopes of securing unfair agreements, unfair child custody or financial arrangements

Each of these fears is realistic but can be addressed with assiduous homework and by retaining skilled legal counsel. Consider these tips to fight financial fear during your divorce process:

  • Become informed: Review and copy bank, tax, investment and other statements. Review the checkbook and credit card statements to understand what you need to move forward.
  • Check your credit: Order a credit report. Review and close unneeded or joint accounts. An unused home equity loan can lower your credit score and leave you financially vulnerable. Apply for credit in your own name if you have not already done so.
  • Retain legal counsel: Work with experienced, aggressive legal counsel to protect your rights, finances and future.

When Does a Spouse Have Rights to a Revocable Trust?

For numerous reasons, individuals or couples may choose to place property in revocable trusts. These trusts hold the property during the grantor’s lifetime and then pass that wealth onto heirs when the grantor dies. When a trust is revocable, the grantor can change the terms, including the named beneficiary, at any time. The question for couples going through a divorce is whether a grantor spouse can amend the trust to remove the other spouse as beneficiary. The answer depends on the original terms of the trust, the timing of its formation, and the source of the assets that funded the trust.

If both spouses are named as grantors, the court will operate under the presumption that the trust funds are marital property and should be divided equitably. But if only one spouse established the trust, it is possible that the trust is separate property, and the grantor spouse might be free to amend its terms.

However, the signature on the trust might simply be a formality. What’s more important is when the trust was established and where the funds came from. If a grantor formed the trust before the marriage and only added the spouse as beneficiary in consideration of marriage or after the wedding, the court could treat the trust and its funds as separate property. If the grantor formed the trust during the marriage, he or she would have to show that only separate property funded the trust. If the grantor used joint assets at any time to fund the trust, the court will consider it marital property and divide it equitably.

Finally, the court can use trust income as a factor in determining child support and alimony.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will 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
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Tuesday, 28 August 2018

FLP for Asset Protection in Utah

We’ve previously talked about family savings trusts and compared an FLP and LLC here and here.

If you’re wondering whether an FLP (Family Limited Partnership) will really work for asset protection, then you really must first first understand what Asset Protection is. In the most basic sense, Asset Protection is any action that dissuades or disallows any unwanted and unauthorized person or entity from reaching your assets. That’s really it.

FLP for Asset Protection in Utah

In that sense, Asset Protection could include:

  • Giving your assets away to a charity or person.
  • Losing your assets in Utah.
  • Investing your assets in a copper mine in South America, which turns out to have no value.
  • Placing your assets in an unreachable location, like a treasure chest dropped to the bottom of the sea, or
  • Piling all your assets up and making s’mores over a roaring bon fire.

In each of the above cases, the assets would be difficult, if not impossible, to reach for anyone! The problem, of course, is that anyone includes you. In practical terms, what Asset Protection has come to be known as is slightly different than these methods mentioned above.

Legal Asset Protection is the use of legal entities and tools that place a legal barrier between an unauthorized creditor and your assets, while leaving you in the position of being able to control, use and enjoy those assets.

From this perspective all of the above options are out. What’s in is the Family Limited Partnership and its cousins like the far more powerful Asset Protection Trust. So how does the FLP really work to protect your assets?

The properly utilized FLP is a legal entity drafted under the laws of a state that statutorily does not allow a creditor to reach the underlying assets of one of the FLP members. It does this with one very special feature – The Charging Order.

A Charging Order Against an FLP

The Charging Order is a legal concept and in the words of the Statute itself:

“A charging order constitutes a lien on the judgment debtor’s transferable interest in the partnership.”

The key concept here is lien. If all things go well, a creditor would not be able to force a distribution of the partnership assets and would be left sitting there with just a lien. This has the effect of placing the barrier we want between the assets and a creditor who is after them.

What the charging order, and the FLP in general, does NOT do is completely remove the creditor; rather it just makes them wait. The net effect is that a creditor holding a charging order is likely to come back to the negotiating table and accept an offer of settlement that is far more favorable to you than it would have been had the creditor been able to directly reach your assets.

Is this Asset Protection? Yes, it does accomplish the goal of placing a barrier, while still allowing you to control, use and enjoy those assets, at least to a point. However, it is not an ultimate barrier. If the creditor is not motivated to settle, and is willing to wait it out, they are in line to receive any eventual distributions from the partnership. In the meantime, you are deprived of your use and enjoyment of those assets. It basically creates a face-off.

So when is an FLP enough? Basically that depends on the level of protection you desire and the level of assets you are trying to protect. Our experience has shown that if your asset level is below $250,000 the FLP alone is a good strategy. When your assets begin to climb higher than that, and definitely when the reach the $500,000 mark, we have found that the deterrent effect of the FLP alone is just not enough.

The reason is obvious, the more the money, the more incentive a plaintiffs’ attorney has to either wait it out, or worse yet, attempt to break open the FLP. The later can and does happen and anyone familiar with a courtroom will tell you that judges are highly adept at finding ways around the very rules and statutes they are meant to uphold. Why? Because there are always 2 sides to every story and more than one way to read the statutory intent of a law.

For these reasons 90% of the time I do not rely solely on the FLP for real Asset Protection. While it remains a valuable entity, particularly for the consolidation and management of all the assets, when it comes to real deterrence and protection I rely on the far more powerful 
Asset Protection Trust, which is the key to a great estate and asset protection plan.

Free Initial Consultation with Lawyer

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
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Contested and Uncontested Divorce Lawyer

Contested and Uncontested Divorce Lawyer

If you and your spouse fight, or disagree constantly, it may be time to for a divorce. You may have heard of uncontested and contested divorce. What are they and what is the difference between them?

Uncontested divorce

This is the way that most Americans dissolve their marriages. Uncontested divorces are inexpensive and relatively painless. However, they are dependent on a couple being able to cooperate without the assistance of the court. Couples should always attempt to settle their differences through uncontested divorce, if possible. However, even if you believe your marriage will end through an uncontested divorce, you must retain an experienced attorney. Divorces are unpredictable and problems can arise at any moment.

One of the biggest advantages of an uncontested divorce is that it allows a couple to move on with their lives as quickly as possible and without the need for a trial or litigation.

Contested divorce

When people hear the phrase contested divorce they often picture drawn-out courtroom battles where spouses bicker with each other and point fingers. Such situations certainly do occur.

Marriages that end through contested divorce require the assistance of the court to settle disputes about issues like alimony, child custody, visitation rights, and distribution of property and assets. Contested divorces can last weeks, and sometimes even months, and are often fueled by high financial stakes. As a result, it is of the utmost importance that you retain counsel that is both experienced and aggressive.

You’ve got to stop — When Divorce Becomes a Lifestyle

She was a registered nurse and now runs a coupon website. They divorced, and he currently works as a waiter. It should be a short story, but it is not.

Jon and Kate Gosselin have created headlines for the last several years — first as the well-intentioned parents of twins and sextuplets, then as rising television personalities on their own reality television show about their life with eight children. Along the way the paychecks got larger and the strain on their marriage became greater.

In 2009, their decision to split was announced on their television show, and it was followed by divorce and acrimonious claims and accusations that kept the couple in the spotlight. In August 2013, Kate filed a lawsuit in federal court against her ex-husband, making the following claims:

  • Jon illegally obtained emails and other information from Kate by hacking into her computer.
  • A hard drive was stolen from Kate that was used by Jon in the writing of a book about her.
  • The book, cowritten by Jon, was retrieved from publication due to questions concerning the information it contained.

Kate seeks monetary damages due to damage to her reputation. In his response, Jon denies and explains the allegations.

The couple has repeatedly tangled over accusations in the years following their divorce. While Jon states he currently lives without the Internet and television, Kate continues to work to remain relevant in media circles.

It takes two people to marry, but only one to make an unpleasant divorce. And in some cases, both parties keep disputes running long after their divorce is granted.

US Divorce Statistics Show a 35-Year Low

A number of recent studies indicate that divorce rates in the United States are lower than they have been in 35 years. Researchers from the Natural Center for Family and Marriage Research at Bowling Green State University have different theories as to what is causing the rate to decline by so much over the last few years.

The following are some of the most prominent theories:

  • Fewer marriages: Some studies have shown that Millennials (people born between 1984 and 2000) are not getting married at the same rates as previous generations — or at least are waiting to get married until they turn older.
  • Marrying older: By waiting to marry until they are older, Millennials may be in a better place in life to have a steady marriage than previous generations, who tended to marry when they were much younger.
  • Changing gender roles: Generally, women today are no longer expected to be homemakers. Men and women now often share the responsibility of earning salaries to support their homes. This could have an impact on how people see their marriages as well, as there may be less of a financial power dynamic in relationships.
  • More cohabitation: More people are choosing to live with their romantic partners, either instead of getting married at all or leading up to their marriages. People who live with their partners before getting married could find themselves better prepared for what married life has in store for them.

Free Consultation with Uncontested and Contested Divorce Lawyer

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will 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
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Monday, 27 August 2018

Irrevocable Living Trust

You don’t need to have deep pockets to benefit from a living trust, just a desire to provide for the people and causes you care about. Maybe you want to guarantee income for a family member with special needs, or you want to pay for your grandchildren’s a college education. There are countless reasons to create a living trust and dozens of types of trust to select from.

Irrevocable Living Trust

Generally, when people talk about living trusts, they’re referring to revocable living trusts. With a revocable trust, the person creating the trust retains control of the trust property and frequently serves as the trustee. In contrast, irrevocable living trusts can’t be terminated and the grantor gives up complete control over the trust property.

So why would you want to give up complete control of your property to an irrevocable living trust? These trusts have tax advantages that revocable trusts just don’t provide. Irrevocable trusts also shield assets from creditors, and help provide for family members who benefit from not receiving a single, large gift.

Understanding Irrevocable Living Trusts

Creating an irrevocable trust is a serious decision. Even though you’ll give up control over the trust property, you do have control over the rules that govern the trust and you can determine the uses of the trust assets. You determine who serves as trustee and name the beneficiaries. You can even retain the right to change beneficiaries.

The key features of irrevocable trusts are reflected below:

  • No Modifications: Once you create the trust, it can’t be changed or modified.
  • Personal Tax Benefits: When appreciated assets, such as stock and real estate, are transferred into the trust, the grantor will save on capital gains taxes. An irrevocable trust doesn’t avoid taxes entirely.
  • Property Ownership: Once you place property into an irrevocable trust, it no longer belongs to you.
  • Asset Protection: Property placed in a trust is generally shielded from outside creditors, liens and even divorcing spouse.
  • Long-Term Care: Moving assets to an irrevocable trust allows the grantor to obtain Medicaid benefits if he moves into a nursing home: By placing assets into an irrevocable trust five years ahead of the actual need, the grantor has secured his assets for the benefit of named beneficiaries.
  • Trustees: Unlike a revocable trust, the grantor cannot serve as the trustee of an irrevocable trust.
  • Estate Tax Savings: Since the grantor no longer owns the property, it’s not included in tax calculations of the total value of property at the time of death.

Types of Irrevocable Living Trusts

There are many reasons to create an irrevocable living trust, ranging from the long-term care of a disable beneficiary to shielding a home from estate taxes. A few of the more common irrevocable trusts are described below:

Bypass Trust

Also referred to as a family trust. It’s designed to help a family save on estate taxes and can be used to provide income to your spouse or other family members during the surviving spouse’s lifetime. You and your spouse will each have provisions in your wills directing personal assets, not community property, be used to fund the trust. Examples of assets used to fund these trusts include assets already in a revocable living trust, or proceeds of a life insurance policy or retirement account that names the bypass trust as beneficiary.

Irrevocable Life Insurance Trust

This is one of the most frequently used estate planning tools because of the tax savings benefit. The tax rules are complicated but by excluding the life insurance assets from the insured’s estate, this trust can more than double the amount of policy proceeds payable to heirs.

Special Needs Trust

Typically, people with disabilities qualify for government assistance such as Supplemental Security Income (SSI), Medicaid, vocational rehabilitation, and subsidized housing. If these beneficiaries were to receive an outright gift, it could jeopardize their government benefits. Income from the trust can be used to pay for housing, assisted-living arrangement, education, training, vacations, professional services, as well as vacations and hobbies.

Qualified Person Residence Trust

Also known as a QPRT, the grantor transfers title to their home to the trustee of the trust but keeps the right to live in the home rent-free for a term of years called for by the trust. The grantor continues to pay all the ordinary expenses. At the end of the term, if the grantor is still living, the residence passes to the beneficiaries, usually the grantor’s children.

Spendthrift Trust

This estate planning tool is designed to protect a beneficiary from wasteful spending that may rapidly exhaust their assets. The assets are generally creditor judgments or any attempts to attach or lien against the beneficiary’s trust interest.

Charitable Remainder Trust

This trust provides for distributions to at least one non-charitable income recipient for a set number of years, with the remainder paid to at least one charitable beneficiary. It allows you to donate generously while receiving tax benefits.

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
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How to Be the Personal Representative of an Estate

How to Be the Personal Representative of an Estate

Probate Law in Utah is a vast subject and your will has an important function beyond providing instructions for the distribution of your property. It also names the person who will serve as the executor your estate. The executor has the job of paying your final bills, and distributing any remaining assets. We’ve brushed up against this topic before here.

When someone dies without a will, it’s called dying “intestate.” In these situations, no one may have legal authority to close the deceased’s estate. Probate court can step in to select someone to perform these duties or a loved-one can volunteer to fill the vacancy. This court-appointed representative is known as an administrator. The duties performed by an administrator are essentially the same as an executor.

These basic steps will show you how to file for executor of an estate without a will:

Determine Your Priority for Appointment

Probate rules are established by your state and include identifying who can serve as an administrator and the priority of appointment. A surviving spouse usually is given first choice at filling this role. If they decline, the deceased’s children are next in line. When there is no spouse or children, a family members may be selected. If more than one person with priority wants to serve as administrator, and the heirs can’t agree, then the court will choose.

Many states have laws prohibiting certain classes of people from serving as an administrator / executor. In Texas, for example, a person who is a non-resident can’t be appointed. Neither can someone found guilty of a felony, even if it occurred 30 years prior. In some states, when no family member has come forward to administer the estate, then a creditor of the deceased may serve as administrator.

Receive Written Waivers From Other Candidates

You need to receive a written waiver from other candidates for administrator that have higher priority. For example, if you are the brother of the deceased, you may need to get a written waiver from the deceased’s spouse and children before you can be appointed administrator.

Contact Court in the County Where Deceased Resided

In most states, probate will occur in the county where the deceased had residence. You need to contact that court to understand their filing requirements and timelines. Frequently you will need to file a Petition for Probate along with the Notice of Petition to Administer Estate.

File the Petition for Administration

The Petition will require you to supply a certified copy of the decedent’s death certificate, an estimate of the gross value of the estate, and the names and addresses of the decedent’s heirs. You will pay a fee to petition for administration.

Attend the Probate Hearing

Many states do not require a formal hearing unless there is a contest to select the administrator, or the administrator in not next of kin. Administrators and executors are commonly given an oath recognizing their fiduciary duties to the estate and the court.

Secure a Probate Bond

It is common court practice to require a bond to protect the interest of the deceased’s estate, its heirs and creditors. The bond also protects the administrator to ensure they fulfill their duties and responsibilities.

Free Consultation with a Utah Probate Lawyer

If you are here, you probably have a business law 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
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Sunday, 26 August 2018

How Divorce Affects Social Security

How Divorce Affects Social Security

Getting divorced is generally acknowledged as a difficult endeavor emotionally, but its impact of your finances can also present challenges, especially in the often-overlooked area of retirement benefits such as Social Security.

To protect yourself, you’ll want to become well versed in the following ways that divorce can impact your Social Security benefits:

  • Get to know the decade factor. If you’ve been married at least 10 years, and divorced for at least two, you can usually qualify for spousal benefits. That means you can choose your ex-spouse’s benefit if it is higher than your own claim.
  • Decide to double up. If you qualify for a spousal benefit, the good news is that you can still claim that benefit and wait to claim your own benefit at a later date. This means you may ultimately obtain a higher benefit since you’re waiting until you reach full retirement age (currently age 70).
  • Beware of early benefits. If you decide to take early benefits (between age 62 and 70) you will be required to take the higher of spousal or personal benefits. If you end up working, your benefits may be reduced because of earnings limits.
  • Understand the repercussions of remarriage. If you get remarried you typically will lose the benefit you received from your ex-spouse. However, after a year of marriage you will be eligible for spousal benefits based on your new partner’s record. If you meet the 10-year threshold for more than one marriage, you can claim the higher of the two benefits.  If neither former spouse remarries, they can both claim spousal benefits on your record.

In any case, you do not have to wait until your ex-spouse files for benefits before you file a spousal claim, as long as you are both at least 62 years old.

How Should Divorcing Couples Divide Rental Properties?

During the course of their marriage, many couples decide to invest in real estate, purchasing rental properties and earning incomes off of them. But these real estate holdings can make the property division process more difficult if these couples decide to get divorce.

The following are some of the key considerations to make when dividing shared rental properties between divorcing spouses:

  • Valuation: One of the first steps you should take is to value your real estate, including the land and the building itself. To do this, a real estate broker must analyze sales of nearby and comparable properties. If the rental property has positive cash flow, it will add to its value.
  • Potential sales: In many situations, the couple may choose to sell the property. If it sells for less than the mortgage balance, the owners may need to liquidate other shared assets to pay the rest of it off. If there is a profit from the sale, both spouses will usually divide it evenly.
  • Tax issues: Location and state tax laws can have a significant impact on the value of a piece of real estate. In addition, selling a rental property may have negative tax consequences for one or both parties, so it’s important to speak with a lawyer before moving ahead with any transactions.

Free Consultation with a Utah Divorce Attorney

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

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Negotiating Divorce in Utah

There are some situations in which only one spouse will take part in the divorce proceedings. This could be for a variety of reasons — one spouse may live in a different state, for example, or simply be resistant to the divorce occurring. When only one spouse participates in court, the process is called an ex parte divorce. The divorce will still be valid, so long as you meet certain requirements.

Negotiating Divorce in Utah

First, you must meet the residency requirements of a divorce. You must file your divorce within the state or county that you permanently live, or where you have been present for a certain period of time according to state law. This time period could be anywhere from six weeks to a full year.

Under an ex parte divorce, you have an exception to the normal rule of jurisdiction. This means that the divorce court can have power over a person’s legal rights even if they lack a relationship with the state in question.

Next, you must give notice to your spouse of your intent to file divorce. A person working as a “process server,” typically a local law enforcement officer, delivers this notice. If you do not know where your spouse is currently located, you may have to look into other options to ensure that they get notice of the divorce action.

Once the process has been completed, courts are required to honor divorces that were obtained even in another state.

How to Negotiate a Fair Alimony Arrangement

Like any other aspect of your divorce, you can negotiate an alimony arrangement outside of the courtroom. Doing so allows you to have more control over your future, while also avoiding the expensive, time-consuming process associated with litigation.

Each spouse in a divorce must provide certain financial disclosures at the outset of the divorce, even if it’s obvious which spouse will be making the alimony payments. To determine an appropriate amount of alimony, you will need to consider the following:

  • Separate assets your spouse owns: You are entitled to know the value of any assets your spouse owns independently of you. This includes any assets gained before the marriage.
  • General income and expense reports: A detailed income and expense report will give you a clear picture of how your spouse is spending money. Major disparities in spending and income must be addressed in alimony discussions, especially if one spouse has a lot of money to spend on luxury items.
  • Bonuses and benefits: Additional income is available from overtime and bonuses. This may be unpredictable, but should still be included when calculating alimony. Know if your spouse receives certain work-related benefits such as sick pay, unused vacation pay, health insurance benefits, vehicles paid for by the company or any similar benefits.
  • The needs of the person receiving alimony: The purpose of alimony is to provide the spouse receiving payments with the support he or she needs to maintain a reasonably decent standard of living. Just because there is a large disparity of income does not mean the recipient is going to get large sums of money each month.

Free Consultation with Divorce Lawyer in Utah

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