Effect Of Failure Of Action Not On MeritsIf any action is commenced within due time and a judgment thereon for the plaintiff is reversed, or if the plaintiff fails in such action or upon a cause of action otherwise than upon the merits, and the time limited either by law or contract for commencing the same shall have expired, the plaintiff, or if he dies and the cause of action survives, his representatives, may commence a new action within one year after the reversal or failure. Trials vs. AppealsA trial and an appeal have a few similarities, but also many important differences. An appeal is a more scholarly proceeding than a trial. Whereas the litigator must be an active strategist in the courtroom, calling witnesses, cross-examining, and making motions or objections, the appellate lawyer builds his or her case in the brief, before the appeal is heard. Appeals often include a short period for oral argument, but the judges often consume this period with questions for the attorney, prompted by the briefs. After Appealing a Court DecisionThe party that loses in a state or federal appeals court may appeal to the state Supreme Court or the U.S. Supreme Court. (Most states call their highest court “Supreme Court,” though Maryland and New York call theirs the “Court of Appeals.”) Review in these courts, however, is discretionary with the court. Because these courts receive many more requests for review than they can handle, they typically grant review only to cases involving unsettled questions of law. Also, the U.S. Supreme Court can only review cases that raise some federal or constitutional issue; cases that concern state law exclusively are beyond its jurisdiction. At this point, the parties have already had the case reviewed once, reducing their tendency to see the decisions as biased or contrary to law. \ Reverse and RemandSome cases will result in a reversal and remand. This means that the Court of Appeals found an error and the case is remanded, or sent back, to the same trial judge to re-decide the case. Many times issues can only result in a remand back to the same trial judge. So it must be factored in whether a successful appeal means the case is going to the same judge who committed error in the first place. Many times a trial judge may simply follow what the Court of Appeal stated and reach the same decision as before if there is some flexibility given by the Court of Appeals. However other times the remand language from the Court of Appeals is so specific that the judge must decide the case differently. It is all dependent on the direction of the Court of Appeals in its opinion. Reverse and RenderPerhaps the best result is a reverse and render. In this case the trial court really is ordered to take only one action as directed by the Court of Appeals. So essentially there is not much left for the trial judge to do other than enter the Court of Appeals’ judgment. For the person appealing, this is the best and most desirable result. It is very good to evaluate the appeal issues and determine if they might result in a reverse and remand, and require new hearings or new trial in front of the same trial judge that made the error (and more spending on litigation), or might they result in a reverse and render which means that the case will just be simply sent back to the trial judge to enter the new judgment directed by the Court of Appeals. If you are planning to sue another person or entity, or if you have been sued, you should learn about the key steps in the legal process. The specific procedures may vary depending on your state, but civil lawsuits follow a certain basic trajectory from the initial complaint until the trial. The party bringing the case is known as the plaintiff, while the party being sued is known as the defendant. You should be aware that most cases end with a settlement before trial, which is a more efficient, less risky option than entrusting the outcome to a judge or jury. Before you sue, you may want to think about sending a demand letter to the potential defendant. This can help you save the costs of litigation and solve the issue without the stress of a formal dispute. Read more here about how to craft a strong demand letter. Complaints and AnswersThe first step in a lawsuit is filing the complaint and serving it on the defendant. The plaintiff will outline their version of events in the complaint and describe how the defendant’s actions harmed them. They will ask for monetary compensation or another remedy, such as an injunction. The plaintiff will arrange for service of process by an officer of the court, which involves providing the defendant with the complaint and a summons. The summons offers a basic description of the case and informs the defendant of their deadline to respond. The defendant then will have an opportunity to respond to the complaint with an answer. They must file their answer within the required time period, or the court will enter a default judgment against them. The answer will provide the defendant’s version of events, admitting any statements by the plaintiff that is true and denying all of the plaintiff’s statements that are not true. It also can raise any applicable counterclaims against the plaintiff. Read more here about complaints and answers. DiscoveryThe process of gathering evidence in a lawsuit is known as discovery. This allows each side to get a better understanding of their position and develop strategies for the litigation. It also can promote the settlement process by revealing the strengths and weaknesses of the case. Discovery often involves depositions, which are interviews in which a party or a witness answers questions about the case under oath. It also may involve interrogatories, which are written sets of questions provided by one party to the other party or to someone else with knowledge of the facts in the case. Other discovery tools include requests for admissions and requests for production. Each party can send requests for admissions to the other party to narrow the issues in the dispute. If the opponent admits that a fact is true or that a document is genuine, these points no longer need to be litigated. Requests for production allow a party to get access to tangible evidence that is relevant to the case. Read more here about the discovery process. MotionsAt any point before a case reaches trial, either party or both parties can try to end the case by filing a motion with the court. Most often, the defendant files this type of motion, and the plaintiff opposes it. If the defendant believes that the plaintiff does not have a valid case, they can bring a motion for judgment on the pleadings at the very outset of the case. Similarly, the defendant can bring a motion to dismiss if they identify a procedural problem with the case, such as an issue involving the court’s jurisdiction or the statute of limitations. A motion for summary judgment can be brought later in the process if either party feels that there are no material facts in dispute, and they are entitled to judgment as a matter of law. Sometimes the losing party in a trial will bring a post-trial motion to correct an apparent error. They might file a motion for a new trial based on a material problem with the proceedings. Or they might file a motion for judgment notwithstanding the verdict if the jury’s verdict was clearly not based on the evidence. However, both types of motions are challenging to win. Read more here about motions before and after trial. TrialsYou may have come across many trials in television or literature, but they rarely happen in reality. If the defendant cannot get the case dismissed, the parties usually will settle rather than taking their dispute all the way to trial. Each party has a right to a jury trial in most cases if the plaintiff is seeking monetary compensation, although the parties can agree to waive this right. Jury selection is a complex process that involves asking jurors questions to identify their likely biases. The parties also can exclude a limited number of jurors for reasons other than bias, within the limits provided by the Constitution. A trial begins with opening statements by each side and proceeds through the presentation of evidence, including witness testimony. Each side can cross-examine the other side’s witnesses, and then the party that called the witness can conduct a re-direct examination. The plaintiff presents their case first, and then the defendant may ask for a directed verdict if they believe that the plaintiff has not made an adequate case. If this motion is denied, the defendant will present their case. Finally, each side will make closing arguments and propose jury instructions to the judge. Once the jury instructions have been determined, the judge will provide them to the jury, which will deliberate and return a verdict. If the losing party in a trial is unsatisfied with the outcome, they can consider appealing it to a higher court. An appeal usually will need to identify a specific legal error and show how it resulted in the outcome. An appellate court will not reverse a jury’s decision unless there was a reversible error. This means that the outcome would have been different if the error had not occurred. An appellate court usually will not reverse the decision of a judge in a lower court unless they abused their discretion. A losing party can appeal not only a trial verdict but also any other final judgment that ends the case. If the court granted a defendant’s motion to dismiss or motion for summary judgment, for example, the plaintiff can appeal that ruling. The appeals court would review the record in its entirety in this situation, including the facts as well as the law. Read more here about the appeals process. Only final judgments may be appealed. A final judgment disposes completely of the case, leaving no further issues for the court to decide. A judgment does not have to result from a jury verdict to qualify as a final judgment. Cases which are resolved through motions for summary judgment or motions to dismiss are also considered final judgments. A court may allow interlocutory appeals under some circumstances, such as the denial of a preliminary injunction. All losing parties in civil matters and all criminal defendants have a right to appeal a judge or jury’s verdict against them. The prosecution in a criminal matter, however, may not appeal a verdict in favor of the defendant. To appeal a verdict of “not guilty” would violate the Double Jeopardy clause of the United States Constitution. Which Courts Hear Appeals?State and federal appeals courts review the decisions of lower trial courts. If a party loses in an appeals court, they may appeal to the state supreme court or to the United States Supreme Court. Review of appeals in these courts is discretionary and is limited to a small percentage of cases. Additionally, the United States Supreme Court is authorized only to hear cases that involve a federal or Constitutional issue. While a single judge presides over a trial, an appeal is typically heard by a panel of three judges. State Supreme Courts generally have panels of more than five justices, while the Supreme Court of the United States seats a total of nine justices. Free Initial Consultation with LawyerIt’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!
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
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Estate Planning Attorney Draper Utah Revocable Vs Irrevocable Trusts Stop Foreclosure With Bankruptcy And Save Your Home Asset Protection Trust Requirements What Do I Do If I’m In A Business Dispute? Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Michael Anderson https://www.ascentlawfirm.com/utah-code-78-12-40/
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Being responsible for your family includes planning for their care if something were to happen to you, whether it is a debilitating injury or death. This is even more important for those in the military who face the ever-looming prospect of overseas deployments, combat or even risky training environments that can include jumping out of perfectly good airplanes. The military profession is one that is rife with hazards to life and limb, making it that much more important for service members to have an estate plan in place to protect their families. Fortunately, the military provides free legal services to those in its ranks and their family members, which includes estate planning assistance. This article will provide an overview of military estate planning services as well as their limitations. What Does the Military Offer?The military provides a variety of estate planning services which can include legal advice as well as the actual preparation of legal documents. Typically, you can expect a military lawyer to provide support with: Limitations of the Military Estate PlanThere are likely two ways in which you’ll encounter military estate planning services. You’ll either set up an appointment with your local legal assistance office or you’ll be rushing through a series of stations as part of the pre-mobilization or pre-deployment process. The round robin routine will usually include a legal station which provides estate planning support, although at a quick pace. Military lawyers, particularly those involved in preparing service members for mobilization or deployment, have limited time and resources, making it difficult to prepare more complex estate plans. Setting up TrustsWhile you can expect competent legal counsel from a military law attorney, if you have a more complex financial or family situation, using military estate planning services may not be the best solution. For example, if your assets would approach the lifetime gift tax exemption (the amount you can gift in your lifetime without having to pay taxes, which is 5.43 million as of 2015), or if you have family members with special needs, you would likely require the creation of one or more trusts to help you: While a military lawyer may be able to create simple trusts, he or she may not have the time or resources to create the trusts needed to address a complex financial or family situation, like those listed above. Also, given their time and resource limitations, a military lawyer would not likely be able to fund your trust by preparing the instruments needed to transfer assets out of your name and into your trust. These would include such things as: • Property deeds and any accompanying change of ownership forms to avoid reassessments • Forms to change account titles on bank accounts or investment accounts • Forms to re-issue stock certificates so they are titled in your trust and not your name Other Options to Avoid ProbateIf your goal is to avoid probate and you have some investments or real property, you could have a military lawyer prepare your estate plan without a trust and simply change title to your assets in a way that would avoid the probate process. For example, real property held as “joint tenancy” normally will not trigger probate as the property automatically passes to the remaining joint tenant at your death. Also, accounts that are titled as “payable on death” normally have the same effect. You can ask your military lawyer to see whether these options would work for you. No matter the time of year, it is always a good opportunity for members of the military and their loved ones to consider setting up or revising an existing estate plan. Military families need to consider special estate-planning issues that others do not. This is particularly true when one or more family members are deployed overseas. Beyond this, members of the military have access to special benefits and resources. This can become complicated and, for this reason, it is important to seek special help if you are a military family. Whether you are just starting your service in the military or have been serving for some time, consider the following common factors that may be important in your estate planning. Factors to ConsiderEstate plans should be customized to each person’s particular circumstances. In your estate planning, you should consider whether: Estate Planning NecessitiesThere are many benefits offered to military families that can help with estate planning. These include: WillA will is a crucial document outlining to whom and how you want your property distributed at your death. It also allows you to name who will administer your estate and specify who will care for minor or special needs children. TrustA trust is a separate legal entity that can hold property and assets for the benefit of one or more people or entities. Similar to a will, a trust allows you to dictate who will receive your property at your death and how it is to be administered. The added benefit of a trust is that it also provides instructions on how to handle the assets during any period of your incapacity. For most families, a trust-centered estate plan is a better fit, but a will can work for some families. Other benefits for survivorsSurvivor benefit plans (SBP) are pension-type plans in the form of an annuity that will pay your surviving spouse and children a monthly benefit at your death. Likewise, dependency and indemnity compensation (D&IC) provides a monthly benefit to eligible survivors of service members or veterans who die while on active duty, whose death is due to a service-related disease or injury, or who are receiving or entitled to receive VA compensation for a service-related disability and are totally disabled. When you are examining any financial service or insurance product, it’s a good idea to work with an estate planning attorney to make sure any beneficiary designations work the way you expect and provide the maximum benefit to your family. You Need Special HelpMembers of the military often experience frequent moves, have access to several forms of government benefits after service, and can be subject to some unusual tax rules. For these reasons, estate planning for military families is more complicated than most. You can expect an estate planning professional to assist you in planning for the following: • Powers of attorney for financial matters, as well as health care decisions (they are very helpful when a spouse is deployed); • Funeral and burial arrangements; • Wills and living wills; • Organ donation; • Family care plans; • Life insurance; • Trusts; • Estate taxes; • Survivor benefits; and • Estate administration and/or probate. Here is a brief explanation of a few different estate-planning tools. Life InsuranceLife insurance is a tax-advantaged asset that provides the family with the financial means of maintaining their standard of living after the death of a loved one. Various types of life insurance plans are available to meet the needs of many different financial obligations that are present after death. Take a look at the military specific providers of life insurance that have designed plans around the unique needs of military members. There are a number of websites, which provide information on insurance. An excellent non-affiliated resource is the LIFE Foundation. The Life and Health Insurance Foundation for Education (LIFE) is a nonprofit organization dedicated to helping consumers make smart insurance decisions to safeguard their families’ financial futures. This is an excellent option to learn more about the different types of available life insurance plans and which type of plan would be best for you. Military Estate Planning TrustsTrusts are vehicles that allow you to control your assets during your lifetime and have those assets distributed upon your death according to your stated wishes. Trusts can allow for a quick transfer of assets, reduce probate costs, provide privacy in distributing your estate, and possibly reduce estate taxes. An estate planner should be contacted to help you set up a trust that best meets your needs. Even with a trust, you still need a will to cover issues such as child guardianship and distribution of any property that was not placed in a trust. Military Estate Planning WillsA will is a legal document that, at the time of your death, allows you to distribute any property that is not within a trust. Wills also allow you to designate guardians of minor children or other legally incompetent dependents and can create trusts to protect the interests of your beneficiaries. Your will should be reviewed periodically to ensure that it still covers all of your wishes and that changes in tax laws will not adversely affect your estate. Keep in mind that if you die without a will (called intestate), your property will not be distributed based on your wishes but rather under state law by a probate court. Military Estate Planning Power of AttorneyA Power of Attorney allows a person of your choice to act on your behalf in handling financial matters. You can design a power of attorney to allow the other person limited or complete control over your assets. A power of attorney can be very helpful in the event you are overseas and unable to handle your financial affairs or if you become incapacitated due to illness. An estate planner can help you design a power of attorney that can best meet your needs. Take the time to review your current estate planning documents and make sure that you have everything in place to protect your family. What Happens If a Person Dies Without a Last Will and Testament?Those who die without completing a last will and testament are said to have died intestate and the laws of the service member’s home state dictate how the estate is to be handled. This may or may not be in accordance with the servicemember’s wishes, and it may or may not be in the best interests of the family members left behind. In no case should a service member deploy without completing a will; it is not necessarily to the family’s benefit otherwise. In fact, it may deprive your loved ones of much needed funds to deal with the immediate aftermath of the service member’s death. Remember, state law may dictate how a military member’s estate is divided even if the death occurred overseas or outside the state; the servicemember’s current state of residence may have jurisdiction, or the servicemember’s home of record as reflected in military paperwork depending on circumstances. Free Initial Consultation with LawyerIt’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!
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
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Stop Wage Garnishments With Bankruptcy Estate Planning Attorney Draper Utah How Long Does It Take To Get Divorced? Stop Foreclosure With Bankruptcy And Save Your Home Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Michael Anderson https://www.ascentlawfirm.com/military-estate-planning/ When many people hear the word bankruptcy, the first thing they think of is fear and despair. While the aftermath of bankruptcy will result in a period of change, it doesn’t have to be synonymous with fear. Filing for bankruptcy in certain situations can just as easily be seen as a path to a fresh start. Whether it’s a mortgage, car payment, student loan or credit card, most of us live with some form of debt all the time. Debts can become untenable for a variety of different reasons such as a lost job, divorce or medical disability. Strategically filing bankruptcy can provide you and your family with a way to be released from these debts and have a chance to start over. Who Can File for Bankruptcy?Both individuals and companies can file for bankruptcy protection, depending upon their particular circumstances. Individual’s income and asset records must be evaluated in order to determine if they are eligible to file for bankruptcy. The requirements necessary to be eligible vary according to the type of bankruptcy protection you are pursuing. How Bankruptcy Stops ForeclosureThe two most common types of bankruptcy for individuals are Chapter 7 and Chapter 13. Chapter 7 results in the sale of the debtor’s assets in order to pay debts that they can’t afford. In Chapter 13 bankruptcy, the debtor must have sufficient income to cover the debts, which are reorganized as part of a single payment plan. What Happens After Filing Bankruptcy?Unsecured debts such as credit card debt are often discharged upon filing for bankruptcy protection. Once an individual has filed for bankruptcy with the court, all collection efforts on behalf of credits must immediately cease, and all issues relating to either the sale of assets or Chapter 13 payments are handled by a bankruptcy trustee appointed by the court. Debts that are court-mandated, such as alimony and child-support payments, and debts that are owed to the federal government such as tax liabilities and student loans are not eligible for discharge in bankruptcy cases. If you are overwhelmed by debt, under constant harassment from creditors, and looking for a way out of a seemingly hopeless situation, the first thing you should do is consult with a trusted bankruptcy law office. Bankruptcy Strategies to Prevent ForeclosureIf you have an underwater mortgage and are struggling to overcome your mountain of debt, the threat of losing your home to foreclosure is a terrifying reality. Both you and your family could have to deal with the consequences. Fortunately, meeting with a bankruptcy attorney can provide you with the expertise to delay or even avoid foreclosure altogether. A bankruptcy attorney has a plethora of tools and strategies, all designed to help you get back on track with your mortgage payments. How Bankruptcy Can Stall or Prevent ForeclosureEssentially, when you’re behind on your mortgage payments and aren’t able to catch up, your lender tries to get the remaining payments through other means. Typically, your lender will start by auctioning off your home. Fortunately, the foreclosure process takes a long time, so if you’re having problems with your mortgage and foresee a foreclosure in the future, you may still have time to act. Filing for bankruptcy is one measure that you can take. Meeting with a bankruptcy attorney about your mortgage can help you understand your available options. Some options include: Strategic Default and Strategic ForeclosureStrategic default commonly refers to the practice of “walking away” from a mortgage. In this sense, borrowers simply stop paying, pack up, and move out, leaving the bank to foreclose on the home. Strategic foreclosure is the practice of getting the bank to take back your home as full satisfaction of your debt. Regardless of what you may read on the Internet, strategic default is a bad idea for 99.9% of borrowers. In addition to the damage it will do to your credit, homeowners who simply “walk away” may be liable for a deficiency judgment against them. That deficiency is the difference between the value of the loan and what the property sold for at foreclosure. Since most people engaging in strategic default are also underwater on their mortgages, this is probably a hefty sum of money. In a strategic foreclosure, an underwater homeowner attempts to return the property to the bank this is commonly done in two ways: a deed-in-lieu of foreclosure and a consent foreclosure. A deed-in-lieu of foreclosure is used before foreclosure is filed. The bank agrees to take the property and to not pursue a deficiency judgment against the borrower. Some banks will want you to list the home for ninety days before they will accept a deed-in-lieu. If you have a second mortgage, it is unlikely that you will be able to obtain a deed-in-lieu. A consent foreclosure is done after the bank has filed a foreclosure action. This is basically the same as a deed-in-lieu, except that you are consenting to a judgment of foreclosure and sale being entered against you. This can impact your credit score, but you are also protected against a deficiency judgment. Either option is best done by a qualified attorney, but can be pursued on your own. Can I File an Emergency Bankruptcy Petition to Stop a Foreclosure Sale?Yes, yes you can. If your mortgage lender is about to foreclose, filing an emergency bankruptcy petition (also called a bare-bones or skeleton petition) can delay or stop the foreclosure process. It could give you more time to negotiate with the bank. Keep in mind that while Chapter 7 will stop a foreclosure, it will be temporary. If you’d like to keep your home, Chapter 13 will likely be the better option. Emergency Bankruptcy PetitionWhen you don’t have time to complete all required bankruptcy forms, you can take advantage of the automatic stay by filing an emergency bankruptcy petition. An emergency petition lets you file for bankruptcy by filling out a few forms and taking a credit counseling course. You then have 14 days to complete the rest of the required paperwork and file it with the court. An Emergency Petition Can Stop a Foreclosure SaleMany people want to stop a foreclosure on the eve of bankruptcy. An emergency petition can do just that. If you have more time, it’s a good idea to find out when you’ll need to file your bankruptcy petition. How quickly a lender can foreclose on your home depends on state law. If you received a foreclosure notice from the bank, you’d want to read it carefully to determine the date of your foreclosure (or trustee) sale. In most states, your lender must give you ample notice of your default and wait a certain statutory period before setting a foreclosure sale date. The moment you file for bankruptcy relief (including an emergency petition) an automatic stay goes into effect that prohibits your lender from going forward with the foreclosure sale. Bankruptcy can delay or stop the foreclosure process as long as the home hasn’t been sold. But once the lender sells your home, you no longer own it, and bankruptcy can’t help you. How to File an Emergency Bankruptcy PetitionIn most cases, you can file an emergency bankruptcy petition by completing the following forms: Some courts might require additional forms. You’ll want to check with your local bankruptcy court to learn the requirements in your district. You can find it using the Federal Court Finder. The official bankruptcy forms are on the U.S. Courts bankruptcy form webpage. Again, after filing the emergency petition, you have 14 days to file the rest of the required bankruptcy forms and schedules. Failure to do so will typically result in the dismissal of your case without prejudice (you can file again right away). Of course you should call us to help you. You shouldn’t go it alone. You shouldn’t do this if you don’t know what your doing and have never done it before. You should call Ascent Law LLC and get the best benefit you can. First let’s take a look at some of the problems homeowners face when they decide to go through a strategic foreclosure: • The number one problem that homeowners face when going through a strategic foreclosure is that mortgage lenders usually choose to pursue them relentlessly for payment. The fact is that mortgage lenders have the legal right to pursue the homeowner for the balance of the mortgage even after foreclosure and even if the home is valued for less than the mortgage, which is often the case. • The second problem is that homeowners going through a strategic foreclosure often still have assets that they are trying to protect. But using the legal system, mortgage lenders can get access to those assets by winning a judgment against the debtor. Filing bankruptcy will help the homeowner discharge the balance of the mortgage after foreclosure and protect their assets. Strategic foreclosure is not about getting away without paying your creditors; it is about realizing that you are up against the wall financially before you lose all of your assets; that is why they call it strategic. By getting out of the mortgage early, you are better positioned to protect critical assets and get a better financial fresh start after foreclosure and/or bankruptcy. Many people fall behind on their mortgage payments. Some lenders and mortgage companies may be willing to work out deals with the homeowners, such as a short sale or loan modification. Most lenders are not. In that case, the lender will most likely begin the foreclosure process, as set out in the mortgage contract. The foreclosure process involves the creditor repossessing and usually selling the house at a public auction. The proceeds from that auction are used to repay the mortgage and any legal costs. The foreclosure process takes time. Most creditors do not begin foreclosing until the homeowner is two to three months behind on their mortgage payments. This gives the homeowner some time to consider alternatives to foreclosure, such as a loan forbearance, short sale, or deed in lieu of foreclosure. Should all of these alternatives fail, bankruptcy may help in several different ways. How to Delay Foreclosure with an Automatic StayBankruptcy and foreclosure are both words that the average person dreads hearing. If you are facing foreclosure, however, bankruptcy can become a tool to help you keep your house. Once you file bankruptcy, either Chapter 13 or Chapter 7, the court automatically issues an Order for Relief. This order grants you an “automatic stay”, that directs your creditors to immediately cease their collection attempts, no matter what. So, if a foreclosure sale has been scheduled for your home, it will be postponed, by law, until the bankruptcy is finalized. This usually takes about three to four months. There are two exceptions to this buying time rule• If the Lender Files a Motion to Lift the Stay: Unfortunately, the lender can file a motion to lift the stay, which asks permission from the bankruptcy court to continue with the foreclosure sale. If this is granted, you may not receive the extra three to four months of time. However, bankruptcy normally still postpones the sale by about two months or more, or even longer if the lender does not act fast in filing the motion to lift the stay. • If the Foreclosure Notice has Already Been Filed: Most states have laws that require lenders to give homeowners a certain amount of notice before selling their property. A bankruptcy’s automatic stay will not stop the clock on this advance notice. Call us today to determine how to Use Chapter 13 Bankruptcy to Help You now. Free Initial Consultation with LawyerIt’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!
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
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Selling Assets Before Divorce IN Utah Stop Wage Garnishments With Bankruptcy Salt Lake City Estate Planning Lawyers Estate Planning Attorney Draper Utah Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Michael Anderson https://www.ascentlawfirm.com/stop-foreclosure-with-bankruptcy-and-save-your-home/ An estate planning attorney is a person who understands the legal processes of getting financial affairs in order when you’re preparing for an incapacitating event or your eventual passing. They have years of mentoring, continuing legal education, and experience in estate and inheritance law. Estate planning doesn’t begin and end with a last will and testament. An attorney practicing in this field drafts living trusts and develops plans to mitigate or avoid estate taxes. They work to ensure that your life’s savings and assets are safe from beneficiaries’ creditors when you pass on. Certain types of trusts and clauses within them can protect your estate from creditors and other vultures that try to swoop in on an inheritance. Estate planning lawyers can prepare powers of attorney and health care directives that arrange for someone to take care of your affairs if you should ever become mentally incapacitated. Powers of attorney give someone you trust the ability to sign in your name if you become unable to. You can make a health care directive to assign an agent to conduct your health care wishes if you’re incapacitated. They can help you avoid guardianship or conservatorship issues if you need someone else to look after your affairs. You can appoint guardians (to handle personal issues for your kids) or conservators (to handle your kids’ finances) to look after your children and finances if you pass away before they reach an appropriate age be on their own and handle their inheritance. Estate Planning Attorney QualitiesA general law practitioner may not have the experience and specialized knowledge to assist you with your unique family and financial situations. Look for an estate planning attorney who: Finding an Estate Planning AttorneyThere are multiple ways to find an estate planning attorney you can comfortably work with and trust. Start by asking someone who already knows you, such as your financial adviser or accountant. Your local or state bar association is another source of reputable referrals. You can ask the local probate court and consult other attorneys as well. Before committing, it may be possible to interview a few briefly by phone to help determine your ability to communicate effectively with them. Be prepared to pay to have your estate plan created, maintained, and updated by someone specializing in this area of practice. You’re paying for the attorney’s expertise and knowledge of estate laws, and to have a plan that will hold up in court. Your estate might stand to lose far more money in the long run than it costs to pay a qualified attorney. A flat fee may cover the preparation of essential documents and initial consultation. If an attorney wants to charge you by the hour, try to negotiate a flat price for all the work you expect is needed. Some experienced attorneys will agree because they have a good sense of how much time goes into a specific task. If your estate incurs taxes that could have been avoided, or if a contentious probate process drags out after you pass on, your loved ones may wish that you had spent the money to plan instead. It is worth paying for the planning, so that you know things will go exactly as you intended because you had the help of an experienced estate planning attorney. Take the time to find and hire a professional and respected attorney in your area. In the long run, you and your family will be glad you did. A professional estate planning lawyer will bring years of experience in managing estate planning matters in accordance with Utah estate law. Hiring the right help to plan your property and finances can ensure the safety of your finances so that your family will be able to take full advantage of them. Although estate planning lawyers can help you with a variety of issues, their main goal is to provide the best possible assistance in order to prepare your financial legacy. This way, you can have peace of mind knowing that you have prepared for your family and that they will not have to struggle with estate-related issues when you are gone. A reliable estate planning lawyer can help you to write your will and testament as well as set up a trust if required. They can also make sure that the estate and inheritance taxes are kept to a minimum by avoiding any delays in submitting documents. Even after your passing, your lawyer can continue to help by ensuring the executor of your last will transfers your assets to the correct beneficiaries. An estate planning lawyer can also supervise the probate process to prevent any issues or mistakes. Planning an estate can be an emotionally stressful process, making it difficult to make logical decisions. Therefore, an estate planning lawyer must be responsible and trustworthy to help you with drawing up a living will, assigning the power of attorney, or preparing any type of advance directive. Your lawyer should be your legal guide to help ease the process and make you feel comfortable. Choosing the Right Estate Planning AttorneyIt is recommended to get a referral from the State Bar of Utah to find the best lawyer for planning your estate. You can also consult with your financial advisor or seek the help of your friends and family members to shortlist the best estate planning lawyers in Utah. Note that lawyers who specialize in estate planning might not have any specific certification or letter to distinguish them from a personal injury lawyer or a car accident lawyer. Instead, they would usually refer to themselves as estate planning professionals. You may want to seek out attorneys whose primary practice experience is in handling estate planning matters. There are some certifications though, which even financial advisors or accountants can attain to practice estate law. These may include: • Chartered Trust and Estate Planner – This certification is awarded by the American Academy of Financial Management. To get this accreditation, the individual should have a degree in finance, tax, financial services, accounting, or law. Apart from that, individuals with an MBA, Ph.D., CPA, MS, or JD from an accredited school or US organization can also attain the certification. Moreover, the individual should have completed a minimum of 5 approved related courses, a certification training course, and annual continuing education to be certified to practice estate law. • Certified Trust and Financial Advisor – This designation is awarded by the American Bankers Association in cooperation with the Institute of Certified Bankers. To attain the certification, the individual should have at least 3 years of experience in finance management, should have completed an approved wealth management training program, and should have completed at least 45 hours of ongoing education within 3 years. They should also have a letter of recommendation and a signed ethics statement to get CTFA-certified. Estate LawEstate law is the body of law that concerns a person’s physical and personal property. Estate law involves planning for a person’s finances and property both during their lifetime and after. It’s a body of law that includes taking care of people and property. It can involve both transactional law and litigation. Estate law is all of the laws that impact how a person makes decisions and issues directives about their personal affairs. There are several different types of law that make up estate law. These types of law often intertwine. Estate law may involve any of the following types of law: WillsA will is a document that states what a person wants to happen to their property when they die. Each person has the right to decide who to give their property to when they pass away. They must deduct their debts from the value of their estate before they can total up their remaining assets to give to the people they choose. The state law where the person lives says what the rules are for creating a will. When a person dies without a will it’s called dying intestate. Each state has rules for what happens when a person dies without a will. An estate lawyer may help their client handle the estate or contest the distribution of an estate when a person dies without estate planning. TrustA trust is a legal instrument that allows someone to hold property that someone else owns for the other person’s benefit. A client might use a trust in order to minimize estate taxes and minimize the hassles that can go along with estate distribution. In other cases, a trust is helpful to manage assets for a minor or a person with disabilities. Attorneys help their clients determine if a trust is the right vehicle for them to reach their estate planning goals. Powers of attorney and advance directivesPowers of attorney and advance directives give guidance on what a person wants to happen in the event that they’re unable to care for themselves. A power of attorney allows a client to give someone else the right to make decisions for them and manage their finances if they’re unable to express their own wishes. Many people use advance directives in order to advise if they want life-saving efforts like hydration and CPR if they face severe medical difficulties. GuardianshipsWhen a person is unable to manage their own affairs because of a physical or mental disability, they may need a guardianship. Adults need a guardianship when they’re unable to handle their own affairs. Children need guardianships when their parents are unable to care for them. Through a guardianship petition, a court can give another person the legal power to make binding decisions for someone else. Attorneys who practice estate law may practice transactional law as well as litigation. When estate lawyers prepare documents and help clients plan for the future, they’re transactional lawyers. There are no court appearances involved in making a will or preparing a trust, for example. If there’s a will contest, an estate lawyer is a litigator. An estate attorney may attend court and present evidence at a contested hearing. Nearly all estate lawyers practice transactional law, but most are also prepared for when they need to be litigators in order to represent the best interests of their clients. Some practice of law is simply reactive. For example, a criminal defense lawyer helps a client react when they’re facing a criminal charge. Likewise, most civil litigation cases involve a dispute over something that’s already occurred. Attorneys sometimes help their clients react to something that’s already occurred. Other times, attorneys help their clients plan for the future. For example, they help their clients create a contract or they advise their clients on what behavior complies with the law and avoids civil penalties. Estate law is both proactive and reactive. Estate lawyers help clients prepare documents that spell out exactly what’s going to happen in the future. The hope is that with advance planning, the client can have their wishes carried out as smoothly as possible. On the other hand, estate law is reactive in that estate attorneys help their clients with estate administration and will contests. Most estate law is state law. State laws determine what needs to be in a will in order to make it valid. There are federal estate taxes that may apply to an estate. Clients with multi-million dollar estates must be careful to structure their estates in a way that contemplates federal estate taxes. To properly serve clients, an attorney must know what state and federal laws apply to their client’s situation. Attorneys must also be mindful that when a client moves to a new state, they may need to update their estate planning in order to continue to have the desired effect from their estate planning. Free Initial Consultation with Draper Estate Planning LawyerIt’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!
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
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Selling Assets Before Divorce In Utah Stop Wage Garnishments With Bankruptcy Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Michael Anderson https://www.ascentlawfirm.com/estate-planning-attorney-draper-utah/ If you owe debts you can’t repay, you are probably facing debt collection efforts from creditors. You may be the target of phone calls and letters from collection agencies, or even lawsuits filed by creditors to whom you owe money. Of all the consequences of owing money, however, one of the most significant is wage garnishment: a court order that directs your employer to take money right out of your paycheck and send it to a creditor. For those who are struggling to get by, wage garnishments lead to deeper financial problems. In fact, a wage garnishment can be the final straw that pushes a debtor into bankruptcy. Once a debtor files for bankruptcy, however, there’s some good news: A legal protection called the automatic stay goes into effect immediately, which stops most wage garnishments and prevents creditors from seeking new garnishments while the bankruptcy case is proceeding. A wage garnishment is a court order requiring an employer to withhold a set amount of an employee’s pay and send it to the person or institution named in the order. Garnishments for certain types of debts are issued automatically. For example, since 1988, all child support orders include an automatic wage withholding order. If you owe back taxes, the IRS can garnish your wages. Student loan defaults may also result in a wage garnishment by the Department of Education or any agency trying to collect the loan on its behalf. Unless you owe child support, back taxes, or defaulted student loans, however, a creditor must file and win a lawsuit against you and get a court order requiring you to pay the debt. With this court order in hand, the creditor can seek a wage garnishment. Those who file for Chapter 7 bankruptcy can get these debts discharged at the end of their case; Chapter 13 filers can include these debts in their repayment plan, rather than facing wage garnishments. However, not all debts may be discharged. For some of these debts, including back taxes, filing for bankruptcy will temporarily stop collection efforts, including through wage garnishment. Once the bankruptcy case is over, however, you will still owe these debts and the automatic stay will no longer protect you from efforts to collect them. If you owe child support, filing for bankruptcy won’t affect an existing wage garnishment. And, because child support obligations aren’t wiped out in bankruptcy, the garnishment will continue before, during, and after a bankruptcy case, just as if you had never filed for bankruptcy. (Because bankruptcy will discharge many other types of debts, however, at least you should be left with more money to pay those debts that survive bankruptcy.) How to Stop Wage Garnishment Before Your Next PaydayIf you are facing a wage garnishment and can’t afford to have even one paycheck garnished you can stop it by filing for bankruptcy. As soon as a bankruptcy case is filed your bankruptcy judge will issue an order to all of your creditors that will require them to stop any type of collection activity including wage garnishment. Hire an AttorneyBankruptcy can be a minefield with problems lurking at every turn. If you don’t know what you are doing you could be in for a world of hurt. If you need to file bankruptcy quickly you especially need a lawyer. Don’t go this battle alone. It could end up costing you a lot more than the 25% of your wages you saved by filing on your own. Pay Your Legal Fees and Your Court CostsBefore you can file a chapter 7 bankruptcy you will need to pay your attorney and the filing fee that is charged by the court. It is important to understand that this is by no means everything that is involved in a bankruptcy case. The typical bankruptcy filing is between 45-60 pages of information on you and your finances. The court allows you to do an emergency filing to stop the garnishment and only requires you to file the first three pages of that big stack. Then, you and your attorney have an additional two weeks to get everything else drafted and filed with the court. As soon as your bankruptcy is filed the bankruptcy court will issue an order that can be provided to your employer and will stop the garnishment. When timing your bankruptcy filing you need to be aware of when your employer processes payroll. If you get paid on Friday but your employer processes payroll on Tuesday then in order to stop the garnishment of the Friday paycheck it will be necessary to file your bankruptcy before it is processed on Tuesday. That is not to say you won’t get that money back if they do garnish it after you have filed bankruptcy, but if your goal is to keep as much of your money as possible you will want to file the bankruptcy before payroll is processed. If you have received a notice of wage garnishment, sometimes referred to as income withholding, it can be very stressful. While this type of court order is no joke, it’s important not to panic. Challenge the Wage GarnishmentsBefore you make any payments to your creditor, carefully review the information in your demand letter. Make sure the debts you are being threatened with wage garnishment over are legitimate. Verify that they are not debts that have already been paid. Confirm that they are indeed your debts and not someone else. If you find errors in the information you can file a written objection to the wage garnishment. Negotiate a Payment PlanIn some instances, you can negotiate a payment plan with your creditor to stop wage garnishment. This is only an option however if the wage garnishments have not yet started, but you have been threatened with a final demand letter. Most creditors are willing to work out a payment plan with you rather than file the expensive forms and go through the legal process of garnishing your wages. At the end of the day, your creditor just wants their payment; they don’t care how they get it. Once you have successfully settled on a payment plan, stick to it, do not allow yourself to fall behind on your new payments. It is highly recommended that after you have stopped wage garnishment that you create a budget for yourself to stay on the right path and keep yourself out of debt in the future. Contact a Credit Counseling ServiceDepending upon your specific situation, speaking to a Credit Counseling Service (CCS), could help you avoid wage garnishments. A CCS is a not-for-profit company that assists you in working with your creditors to get your debts paid through negotiating payment plans. A CSS will act as a middle-man for you and may have better odds of negotiating with your creditors than you do, as they are more familiar with the laws regarding wage garnishment. They will also help you develop a financial plan going forward to help you avoid this situation from occurring in the future. Consider a Debt Consolidation LoanBelieve it or not you can use a debt consolidation loan to stop wage garnishment from happening. A debt consolidation loan is usually an unsecured personal loan that is used to pay off existing debts. However, in some cases you may be required to use collateral, such as your home or car in order to qualify for a debt consolidation loan. It is best to work with a financial institution you trust when using a debt consolidation loan to stop wage garnishment. However, if you cannot afford the payments on the consolidation loan, this may not be your best option, as you will only fall further into debt. Look into a Debt Settlement ProgramDebt settlement and debt forgiveness programs can also be an option to stop wage garnishment. The debt settlement company will essentially take over communication with your creditors and attempt to negotiate a lower balance owed. Often times, your creditor will be willing to negotiate a settlement amount rather than go through bankruptcy. However, it is important to know that this option often comes with expensive fees and in some situations can damage your credit score even further. You really need to weigh the pros and cons of this option before proceeding; it is not the magical fix that it often seems to be. File for BankruptcyFiling for bankruptcy to stop wage garnishment should be the last resort. If none of the options work for you, and you truly cannot afford to have your wages garnished, then it’s time to contact a bankruptcy attorney. Filing for bankruptcy is a long and stressful process so it is important to try other options first. Bankruptcy will stay on your credit history for at least 10 years, which can have serious effects on your ability to buy or rent a home, get a car loan, and in some case can even affect your job opportunities. That being said, sometimes it is the only option to avoid wage garnishment. If you’ve fallen behind on bill payments, your employer might start taking money directly out of your paycheck and sending it off to repay your creditors or collection agencies. Chances are, if you’re behind on your bills your finances are already strained. This process called wage garnishment or wage attachment can strain your finances even further. However, you still have rights and may be able to find a way to lessen or stop the garnishment. Limitations on Wage GarnishmentThere are federal limitations on which types of income can be garnished and how much money can be taken out. Other types of federal aid may also be exempt and your state may have additional laws that protect certain forms of income. For garnishable income, the amount that can be taken can vary depending on the type of debt you owe. The limit will often be a percentage of your disposable income, which is the money you receive after taxes and other legally required deductions are withheld from your paycheck:
• Child support or alimony: Up to 60 percent (or, 50 percent if you have another child or spouse). Your limit may increase by an additional 5 percent if you’re over 12 weeks late. • Federal student loans: Up to 15 percent • Back taxes: Up to 15 percent Options If Your Wages Are Being GarnishedYou may be able to keep your wages from being garnished or decrease how much is taken out in several ways. As a quick aside, before you start on your own, you could consult with an attorney who has a better understanding of the laws and consumer rights. One of the first steps you can take is to try and work with the creditor that wants to garnish your wages. You may be able to negotiate a smaller monthly payment than the amount that would be taken out of your paycheck. Or, you might be able to negotiate a debt settlement and completely wipe out the debt with a lump sum payment. You might be able to file a claim of exemption and stop or decrease the wage garnishment based on your personal and financial situation. For instance, many states offer a head of household exemption for debtors who have a dependent, such as a child or elderly parent that they financially support. You may be able to challenge the wage garnishment on different grounds, such as when more than the appropriate amount of money is being taken out of your paychecks or if the creditor didn’t follow the correct proceedings. Also, review the documents that the courts or your employer send you to ensure that you actually owe the debt. If a creditor is trying to collect a debt that you don’t owe such as one you’ve already paid or that was discharged in bankruptcy that could be grounds for stopping the garnishment and clearing the debt. Debt consolidation or refinancing involves taking out a new loan to pay off your existing loans. It’s going to be difficult to qualify for a new loan if you’ve fallen so far behind on your bills that your wages are being garnished. However, it may be possible. You may be able to take out a secured loan, such as a home equity loan or home equity line of credit. This isn’t necessarily the best option, as you risk losing your home if you can’t repay the debt, but using the funds to pay off your creditors could stop the garnishment. Free Initial Consultation with a Utah Bankruptcy LawyerIt’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!
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
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Selling Assets Before Divorce In Utah Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Michael Anderson https://www.ascentlawfirm.com/stop-wage-garnishments-with-bankruptcy/ During marriage, couples acquire the rights to some of the property and assets, as well as debts, acquired by one or both of them. Marital property doesn’t include things that are considered “separate property owned by either spouse, for example, property owned before marriage, inheritance, gifts, property specifically excluded by valid prenuptial agreements, and property gained after legally separating. In addition, keep in mind that you are also on the hook still for your separate debts from before marriage. There are two ways states divide marital property: equitable distribution and community property. Utah is an equitable distribution or common law state, which is the majority marital property legal system. However, large numbers of people, especially in the Western U.S., live in community property states. This means marital property in Utah isn’t automatically assumed to be owned by both spouses and therefore should be divided equally in a divorce. In Utah, marital property is divided “equitably” or fairly, which may not be an even 50-50. Usually for longer marriages, it is about 50% to each party. For short-term marriages, the court generally puts people back to their position before the marriage, such as giving people what they had before the marriage and typically what they made during the marriage. Parties can agree on how they want to divide the property outside of court, but a judge will review it to ensure it’s fair. Generally, marital property is property acquired or earned during the marriage, including earned income. Property used for the benefit of the marriage, even if it started out as separate property, may also be considered marital property. Separate property includes anything that belonged to one spouse before marriage and was kept separate throughout the marriage. It could also include property given only to one spouse during the marriage, like a gift made to the husband alone or an inheritance that the wife received from a member of her family. The most common types of property divided at divorce are real property like the family home, personal property like jewelry and clothing, and intangible financial assets like income, dividends, and benefits. All of the marital property must be divided between the spouses when the marriage ends, and marital debts must also be divided. The spouse who owns separate property gets to keep that property–it can’t be awarded to the other spouse. Rather than rely on a hard and fast set of rules when splitting property between spouses, judges in Utah have discretion to consider a variety of factors unique to each marriage. Despite the court’s relative freedom to decide what is fair, it should always consider the length of the marriage and how the spouses acquired the marital property. It should also look at the conditions each spouse will face alone after the divorce, such as medical needs, and childcare costs. Each spouse’s level of education and earning potential are also relevant. Judges may divide property unequally after taking these factors, and others, into account. Alimony Determined as Part of Equitable DivisionIn Utah, courts consider alimony as part of the equitable division of marital property. Alimony is a payment from one spouse to the other to help the recipient spouse maintain a lifestyle as close as possible to the standard of living the parties enjoyed during the marriage and specifically, at the time they separated. If it is more equitable, the court might base alimony on the standard of living at the time of trial. The court also has the option to base alimony on the standard of living at the time of marriage if the marriage was short and there are no children. To determine the amount of alimony due, the court may consider either spouse’s fault in the deterioration of the marriage. The court also evaluates the recipient spouse’s financial resources, earning capacity, and whether that spouse worked in a business owned or operated by the obligated spouse (the one who has to pay). Additionally, the court looks at the obligated spouse’s ability to pay, the length of the marriage, who has custody of the children, and whether the obligated spouse’s earning capacity increased because the recipient spouse contributed to education or training during marriage. If one spouse is at the threshold of a major change in income because of the collective efforts of both spouses, that change also will be a factor in how the court divides the marital property and in the alimony award. Conversely, for a short marriage, the court could attempt to put the spouses back where they started as newlyweds, in terms of financial resources. Generally, alimony payments can last only as long as the number of years the marriage existed. Marital Settlement AgreementsThroughout the process, divorcing spouses have opportunities to agree between themselves on what is a fair division. They can decide to sell certain assets and divide the proceeds, while allowing each spouse to keep certain other assets. Whatever agreements the spouses make, they can submit a marital settlement agreement to the court and a court will generally accept the agreement without further involvement. On the other hand, if the spouses cannot work together, or if there are certain items of property that they cannot agree on, then the court will decide for them. How to Protect Your Real Estate Assets During DivorceEmotions and divorce are never a good combination. You need a logical mind when splitting your property. If not, you could end up losing your hard-earned money and property unfairly. Get an Accurate Value of AssetsMost people tend to forget the implication of tax on investment, such as deferred tax payment on retirement accounts. An early withdrawal could also come with a penalty. Put such factors into consideration when appraising the value of property and investments.Choose Your BattlesNot everything is worth fighting for, and divorce attorneys are expensive. Before making any petition, compare the cost of the attorney to the value of the item you are trying to reclaim from your soon to be ex-spouse. Get Prepared Before Filing for DivorceYou need to keep in mind that everything is divisible during a divorce settlement. Take measures before filing a divorce to protect what you can, and gather key evidence supporting any claims you intend to make in court. Consider Using a MediatorLike we mentioned earlier, divorces are expensive. In addition to sharing some of your property with your spouse, you end up paying hefty attorney fees. A mediator will be much cheaper and can facilitate your divorce agreement. Make an Inventory of Your Non-Marital AssetsRevocable TrustA revocable trust is a type of trust where the terms of the agreement can be changed or cancelled by the grantor. The income earned from the collective assets under a trust is distributed to the grantor, and property only transfers to the beneficiary upon the death of the grantor. By establishing an asset protection trust, you transfer ownership of your assets to the trust and only earn income derived from these assets. This means that the trust legally owns the assets and not you, and any divorce company coming after this property or its appreciation would be wasting their time. However, the trust is not always fail-proof. A trust will be effective in protecting your assets if the property was acquired before marriage, and the income obtained from the trust is not commingled with marital funds. Marital assets placed in a revocable trust can be divided in divorce settlements. You also need to be careful when drafting the trust. Ensure that the terms and conditions do not portray the trust as marital property. You can also establish a discretionary trust. This is where the trustee has the ultimate authority to decide who becomes beneficiaries to the trust, and how and when they can receive the assets. The assets will remain under the ownership of the trustee, and they can deny access to the property during the divorce. Maximize on the Equity of your PropertyYou can protect the real estate assets you have control over and have purchased individually by maximizing on its equity. Equity often determines the real value of a property. By subtracting any loans secured with the property from the property’s market value, divorce attorneys are able to determine the amount that should be split between the divorcing parties. Maintaining negative equity is the best bet at protecting your assets. Prove That it is a Premarital AssetAll assets in a marriage are considered marital estate unless you can prove that they are non-marital. For real estate that you acquired before the marriage, you need to prove that any loans associated with the asset were cleared before you got into the marriage. Failure to which, the courts could declare that the asset only has partial non-marital value. You can also prove that the asset was • Excluded in a valid prenuptial agreement • An inheritance • A gift to you only, and not to both parties • Proceeds from a personal injury settlement Consider Setting up a Land TrustIf you have real estate acquired before the marriage, you can set it up in a land trust. Just as a land trust offers protection from creditors and litigators, it can protect you from losing your property during divorce. A land trust offers protection by maintaining your privacy with regards to ownership of real estate. The land trust will be the legal owner of the estate, and your name will not appear in any public records that identify property ownership. Only the trust name will exist. Create a List of AssetsOne of the easiest ways to start the property division process is for each spouse to create a list of assets and identify which spouse should receive it in the divorce. When you’re both finished with your list, you can come together to compare. If you have a dispute, work together to resolve it and determine who should get the property. It’s important to be transparent through the property division process. Both spouses must identify all assets that they acquired throughout the marriage, which includes bank accounts, insurance policies, vehicles, retirement accounts, pensions, real estate, recreational vehicles and equipment, and anything else that holds value. If you agree to a property settlement and later find out that your spouse didn’t disclose an asset, you can ask the judge to reopen your case to re-evaluate the property division. In addition to potentially losing assets later, the guilty spouse may also face fines or penalties from the court if the judge believes your ex intentionally failed to disclose or hid information the asset. Honesty is always the best policy when it comes to disclosure. Generally speaking, courts will accept the fair market value (FMV) of each item, which is what you can get for the item if you sell it on the open market today, not what you paid for it. Value Your PropertyAnother important step is to determine what the property is worth. Generally speaking, courts will accept the fair market value (FMV) of each item, which is what you can get for the item if you sell it on the open market today, not what you paid for it. Determine If the Property Is Marital or SeparateWhether you’re in a community property or equitable distribution state, if you own separate property, it will remain in your possession. That said, you must first categorize and agree that the assets were separate before you can move forward. Each spouse should identify the owner of each asset. If there is a disagreement about whether an asset is marital or separate, the person claiming the item will have to prove to a judge that it’s owned separately. You can do this by showing the date of purchase, where the funds came from to purchase the item, and how the item was kept separate during the marriage. Marital debt is not excluded from property division in a divorce. If you acquired joint debt during your marriage, like a mortgage, car payment, or tax debt, you will probably have to split that between the two of you during your divorce. If you owned a credit card in only your name, and you never used it for marital purposes, like groceries, you may be solely responsible for the amount owing. Remember, while the court can assign the debt to either (or both) spouse, it can’t change the contract you have with your creditors. For example, if the judge requires your spouse to pay off a joint credit card, but your ex fails to pay the monthly payment to the creditor, the credit card company can (and will) still come after you for payment. Unless you want your credit score to be in jeopardy, you’ll need to pay it, and ask the court for reimbursement from your spouse later. If you and your spouse can agree on all of the terms of your property and debt division, you can create a property settlement agreement to present to the judge. Your agreement should list each asset and debt, the owner, and the value. If you want to be sure that you’re not making a bad deal, you should ask an experienced attorney to review the agreement before you sign it. In most cases, the judge will honor your agreement. However, if a party without a lawyer agrees to a property settlement that awards more than half of the property to the other spouse, the judge may want to investigate before approving it. No court wants to see a spouse walk away with an unfair distribution of property. Free Initial Consultation with Divorce LawyerIt’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!
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
The post Selling Assets Before Divorce In Utah first appeared on Michael Anderson.
4.9 stars – based on 67 reviews
Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Michael Anderson https://www.ascentlawfirm.com/selling-assets-before-divorce-in-utah/ An estate planning attorney is a type of lawyer who through years of mentoring, continuing legal education and experience, understands how to advise clients on getting their affairs in order to prepare for the possibility of mental disability and eventual death. Responsibilities of an Estate Planning Attorney• Estate planning doesn’t begin and end with a last will and testament. An attorney specializing in this field will also draft living trusts, develop a plan to mitigate or avoid estate taxes, and work to ensure that your life’s savings and assets are safe from your beneficiaries’ creditors after your death. Qualities of an Estate Planning Attorney• A general practitioner may not have the experience and specialized knowledge to assist you with your unique family and financial situations. Look for someone who devotes his practice to this area of the law. What You Should Expect to Pay for Your Estate PlanBe prepared to pay somewhat higher legal fees to have your estate plan created, maintained, and updated by someone who specializes in this area of practice. You’re paying for the attorney’s expertise accumulated over years of working with a variety of different clients and taking a multitude of continuing legal education classes. As the old saying goes, “You get what you pay for.” Your estate might stand to lose far more money in the long run than the cost of paying a qualified attorney now. If estate taxes come due that could have been avoided, or if a contentious probate process drags out after your death, incurring even more court and legal fees, your loved ones may wish that you had simply spent the money to plan ahead instead. Then, of course, there’s peace of mind. Reasons to Hire an Estate Planning AttorneyWhen considering if you need to hire an estate planning lawyer, consider this estate planning is serious business. One wrong word or one missing signature can change the entire intent of a will or trust. Aside from this, the reasons listed below should be enough to convince you to go out and find and hire a qualified estate planning attorney to draft your estate planning documents. • Estate Attorney Are Necessary Since State Laws Rule Estate Plans: State laws are very specific about what can and can’t be in a will, trust, or medical or financial power of attorney; who can and can’t serve as a personal representative, trustee, health care surrogate or attorney in fact; who can and can’t be a witness to a will, trust, or medical or financial power of attorney; and what formalities must be observed when signing a will, trust, or medical or financial power of attorney. For example, in Utah, a personal representative must either be related to you by blood or marriage or, if not, then a resident of the state. This non-resident, non-relatives simply can’t serve, and in fact, won’t be allowed to serve, in Utah. Working with a qualified estate planning attorney will help you to avoid this kind of simple and yet costly mistake. Advantages of Estate PlanningTaking care of your family has always been the number one priority in your life, and that isn’t going to change. The best way to make sure they are taken care of after you pass is to establish an estate plan while you are still of sound mind. Here are the advantages of creating an estate plan: Disadvantages of Estate Planning• Loss of control: Once an asset is in the irrevocable trust, you no longer have direct control over it. However, in the case of a husband and wife, it is possible to create separate trusts for each, thereby collectively maintaining control. There are many pitfalls with this technique, such as observance of the Reciprocal Trust Doctrine, so this strategy should only be employed with the assistance of a skilled estate planning attorney. Because they have such strong advantages and disadvantages, the suitability of an irrevocable trust depends on a person’s individual circumstances. An experienced estate planner can help you decide if such an arrangement is right for you, or if you would be better off setting up a revocable trust instead. The Estate Planning ProcessAs you go through life, you’re likely to accumulate some amount of wealth, assets and even just family treasures. What will happen to all those things if you die or become incapacitated? That’s where estate planning comes in. An estate plan allows you to legally specify your wishes and how you want them carried out. A well-crafted estate plan can help avoid disputes that may arise and can keep details about your family’s financial affairs private. When you’re ready to work with a qualified attorney and financial planner to write your estate plan, here are some of the key steps you’ll go through: • Create an inventory of what you own and what you owe: Compile a comprehensive list of your assets and debts, including account numbers and contact information, as well as names and contact information for your important advisers. Keep the summary in a secure, central location along with original copies of important documents and provide a copy of the summary for the executor of your will. This list could be a piece of paper or also a digital file kept in a secure location. • Develop a contingency plan: An estate plan allows you to control what would happen to your property and assets if you or your spouse passed away today. It also puts a documented plan in place so that if you became incapacitated, your family could carry on your affairs without having to go through court. This includes a strategy for providing income if you were to become disabled and covering potential expenses for care giving that may be needed at some point. • Provide for children and dependents: A primary goal for many estate plans is to protect and provide for loved ones and their future needs. Your estate plan should include provisions for any children, including naming a guardian for children under age 18 and providing for those from a previous marriage if you remarry, your assets may not automatically pass to them. It also would specifically address the care and income of children or relatives with special needs that must be planned carefully to avoid jeopardizing eligibility for government benefits. • Protect your assets: A key component of estate planning involves protecting your assets for heirs and your charitable legacy by minimizing expenses, and covering estate taxes while still meeting your goals. If necessary, your estate plan would include specific strategies for transferring or disposing of unique assets like a family-owned business, real estate or investment property, or stock in a closely held business. Many people use permanent life insurance and trusts to protect assets while ensuring future goals can be met. • Document your wishes: If you want your assets distributed in a certain way to meet financial or personal goals, you need to have legal documentation to ensure those wishes are followed if you die or become incapacitated. This includes designating beneficiaries for your life insurance policies, retirement accounts and other assets that are in line with your goals. It also means ensuring that titles of material assets, such as automobiles and property, are named properly. Work with an attorney to be sure you have an updated will disposing of your assets, a living will reflecting your end-of-life wishes, as well as powers of attorney for health-care and financial matters. • Appoint fiduciaries: To execute your estate plan, you must designate someone to act on your behalf if you are unable to do so as executor of your will, trustee for your assets, legal guardian for your dependents or personal representative or power of attorney if you became incapacitated. You need to be sure your fiduciaries are aware of and agree to their appointments, and that they know where to find your original estate planning documents. Fiduciaries can be family members, personal friends or hired professionals such as bankers, attorneys or corporate trustees. Whether you are just starting out or have accumulated wealth over a lifetime, an up-to-date estate plan helps you minimize the impact of unexpected events on you and your family by preserving, protecting and managing your assets. A financial advisor can help you create a financial security plan to meet your goals, and provide tools and resources to build an estate plan that makes an impact well into the future. Free Initial Consultation with Estate Planning Attorney In UtahIt’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!
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
The post Estate Planning Attorney Utah first appeared on Michael Anderson.
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Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Michael Anderson https://www.ascentlawfirm.com/estate-planning-attorney-utah/ Offloading all or a portion of your personal debt via settlement can seem like a daunting task when you feel like you’re in over your head with debt. But one of the great truths in business is that everything is negotiable. Even when the price or terms of something seem set in stone, getting a discount is often as easy as knowing whom to ask and how to ask for it. When it comes to the balances you owe on your credit cards, for example, there might be an opportunity to negotiate what you actually owe. With a little bit of knowledge and guts, you can sometimes cut your balances by as much as 50% to 70%. The Basics of Debt SettlementDebt settlement is an agreement between a lender and a borrower for a large, one-time payment toward an existing balance in return for the forgiveness of the remaining debt. Someone who owes $10,000 on a single credit card, for example, may approach the credit card company and offer to pay $5,000. In return for this one-time payment, the credit card company agrees to forgive or erase the remaining $5,000 still owed. Although a debt settlement has some serious advantages, such as shrinking your current debt load, there are a few downsides to consider. Failing to take these into account can potentially put you in a more stressful situation than before. First, debt settlement generally requires you to come up with a substantial amount of cash at one time. This is what makes the debt settlement attractive to your lender because, instead of receiving minimum monthly payments for the next few years, it’s getting a much larger payment now. You’ll need to stop and consider where the funds are going to come from and how that money could be used elsewhere in your personal finances, and you want to make sure a large payment now isn’t going to leave you in a tight spot a few months down the road. Second, you risk having your credit card account closed completely after the settlement is complete. In other words, your lender may drop you as a client because of your poor track record of paying back what you owe. Third, debt settlement can affect your credit score adversely. This, in turn, will make it harder for you to borrow money at good interest rates or even to get credit at all in the future. If you decide that a debt settlement is the right move, the next step is to choose between doing it yourself or hiring a professional debt negotiator. Keep in mind that your credit card company is obligated to deal with you and that a debt professional may not be able to negotiate a better deal than you can. Furthermore, the debt settlement industry has its fair share of con artists, rip-offs, and scams, which is why many people choose to try it on their own first. Debt settlement can adversely impact your credit score, making it more difficult to borrow money at affordable interest rates in the future. Appearances MatterWhether you use a professional or not, one of the key points in negotiations is to make it clear that you’re in a bad position financially. If your lender firmly believes that you’re between a rock and a hard place, the fear of losing out will make it less likely that they reject your offer. On the same note, if you’ve been making your minimum payment (or more) on time every month, you will look like someone who is attempting to walk away from your debt obligations. Your debt settlement offers should always be directed toward companies with which you’ve fallen behind on your payments. The Negotiating ProcessStart by calling the main phone number for your credit card’s customer service department and asking to speak to someone, preferably a manager, in the “debt settlements department.” Explain how dire your situation is. Highlight the fact that you’ve scraped a little bit of cash together and are hoping to settle one of your accounts before the money gets used up elsewhere. By mentioning the fact that you have multiple accounts on which you’re pursuing debt settlements, you’re more likely to get a competitive offer. Last but not least, once you’ve finalized your debt settlement with your lender, be sure to get the agreement in writing. It’s not unheard of for a credit card company to verbally agree to a debt settlement only to turn over the remaining balance to a collections agency. Be sure the written agreement spells out the amount you have to pay in order to have your entire balance excused from further payment. Commercial Debt ManagementNo matter what industry you work in, economic fluctuations can have a direct impact on your company’s bottom line. As such, your company may find itself straddled with a large amount of debt that is difficult to pay off. When managing corporate debt becomes more of a priority than the company’s profitability, many look to the protection they believe bankruptcy can provide. Although bankruptcy does offer a certain amount of protection, its effects are far more destructive than companies expect. Not only is it an expensive process, but it also ravages a company’s credit while also discrediting them in the face of vendors and creditors. Fortunately, at Business Capital, we offer a number of effective business debt negotiation, commercial restructuring and debt management solutions all designed to help companies return to profitability. When it comes to excessive commercial debt, the first priority is to get creditors to stop calling. This requires skillful business debt negotiation through which some form of payment plan or settlement is agreed upon. For over 10 years, our experts have honed such business debt negotiation skills, helping countless companies come to terms that were beneficial to both parties. Imagine paying as little as two to three percent of your company’s debt a month. Some companies are wary of turning their commercial debt management over to an outside company because they feel as though they are relinquishing a certain amount of control. Negotiating Debt Settlements When You Go Out of BusinessWhen a business closes, it usually has a good-sized pile of debts—to landlords, suppliers, utilities, service providers, and possibly a bank or private lender. After you notify these creditors of your upcoming closure (which can limit your liability), you’ll want to make plans to either pay these bills in full, settle them for less than full payment, or consider filing for bankruptcy. The fourth possible approach—ignoring your debts and hoping your creditors will ignore you—might be tempting, but don’t go that route. It will probably result in your spending the next couple of years hounded by collection agencies, repo people, lawyers, and lawsuits. Negotiating Deals on Your Business DebtAssuming you can’t pay all your creditors in full, the question becomes: How little will they settle for? As you might guess, it depends on the type of creditor, the legal details of the debt, and the attitude of the creditor. For example, if your business is an LLC or corporation without any personally guaranteed debts, a creditor will know that it doesn’t have the option of collecting from you personally, so it may be more willing to accept a small portion of what your business owes as complete payment. But if you owe a debt personally, or worse, a friend or relative consigned for it, the creditor has much more leverage. But no matter what the legal status of your debts, in our experience, if you can pay 30% to 70% cash on the barrelhead, it’s worth trying to settle them. Many creditors, knowing that they will have a hard time collecting the debt once you are out of business, may agree to settle your debt for 50, 60, or 70 cents on the dollar—or even less if you hire a lawyer to negotiate for you. Keep in mind that it won’t help you much to settle one or two small debts for a reasonable amount while not being able to settle larger ones. So it might make sense to tell your creditors that your offers are contingent upon all of your creditors agreeing to settle their debts. If you can’t pay all (or most) of your debts, consider bankruptcy. Bankruptcy lets you wipe out debts you have no hope of paying and if your business owes a pile of debts it can’t pay, bankruptcy could offer the fresh start you need. To decide whether bankruptcy or a bankruptcy-like alternative, such as an assignment for the benefit of creditors, is your best course of action. Prioritizing Your DebtsFirst, if you’ve pledged an asset that you own personally as collateral, and you want to keep it, you’ll want to pay that debt first. You should then pay: Negotiating with Secured CreditorsBefore you turn over any property to a secured creditor, try to negotiate with the creditor to release you from owing a deficiency (the difference between what you paid the creditor and what you owed on the lease or contract). If you aren’t able to negotiate a release you and you owe the creditor money, the deficiency is now like any other unsecured debt (it’s no longer secured because you returned the collateral). Negotiating with Unsecured CreditorsAfter you notify your unsecured creditors that you are going out of business, they will start calling you, demanding to be paid. Often it’s best simply to explain that you are preparing as fair a settlement offer as you can and will be in touch. Even if it takes a few weeks to be sure how much you owe and how much cash you have to divide among your creditors, it’s worth the time to get it right. After you’ve collected outstanding A/R and sold off inventory and equipment, you should have at least a small amount of cash to use to discuss settlements. If you have just a few creditors, you can explain your terms personally or by phone. Explain that your business doesn’t have the money to pay the creditor in full but that you can offer a partial payment to settle the debt. If the creditors accept, great. Get each creditor to sign a release for the entire amount in exchange for your partial payment, and you’re done. The release is critical without it, you have no proof that the debt has been satisfied. Creditors could sue you or the business for the remainder of the debt, which would be expensive and time-consuming to defend, even if you end up not being liable for the debt. If you have more than a few creditors, offering a settlement in writing is often your best course of action. In your letters, spell out what you can pay as settlement of the debt in full, that you’re offering each creditor the same percentage, and that you’ll need all creditors to agree to sign a settlement releasing the debt before you can make the payments. If some creditors want to negotiate for substantially more or are threateningly uncooperative, it’s time to involve a lawyer. This will immediately raise the seriousness of the negotiations, because the lawyer will be able to convincingly let the creditors know that you may file for bankruptcy if settlements aren’t reached. Creditors know that the costs and delays inherent in bankruptcy would mean they will almost surely receive less than you are offering and they wouldn’t get the money for many months, so most will accept your settlement. A bankruptcy lawyer can also advise you on whether or not it makes sense to fully pay a creditor who refuses to accept less. Similarly, if a creditor makes a request for payment that you dispute, a business attorney can tell you what your next steps should be. Debt forgiveness can be taxed as income. If creditors agree to settle your debts for less than the amount you owe, the IRS and state tax agencies may view this debt forgiveness as taxable income. (In other words, you don’t have to pay the money, so it’s like getting the same amount as income.) This could result in your actually having positive taxable income, rather than an operating loss, in the year you close. Owners of corporations and LLCs won’t be personally liable to pay these taxes, but sole proprietors and partners should talk to a tax adviser to see whether this income can be applied to previous years’ net operating losses or otherwise wiped out. Debt Settlement CompaniesDebt settlement programs typically are offered by for-profit companies, and involve the company negotiating with your creditors to allow you to pay a “settlement” to resolve your debt. The settlement is another word for a lump sum that’s less than the full amount you owe. To make that lump sum payment, the program asks that you set aside a specific amount of money every month in savings. Debt settlement companies usually ask that you transfer this amount every month into an escrow-like account to accumulate enough savings to pay off a settlement that is reached eventually. Further, these programs often encourage or instruct their clients to stop making any monthly payments to their creditors. Debt Settlement Has RisksAlthough a debt settlement company may be able to settle one or more of your debts, consider the risks associated with these programs before you sign up: Beware of Debt Settlement ScamsSome companies offering debt settlement programs may engage in deception and fail to deliver on the promises they make — for example, promises or “guarantees” to settle all your credit card debts for, say, 30 to 60 percent of the amount you owe. Other companies may try to collect their own fees from you before they have settled any of your debts a practice prohibited under the FTC’s Telemarketing Sales Rule (TSR) for companies engaged in telemarketing these services. Some fail to explain the risks associated with their programs: for example, that many (or most) consumers drop out without settling their debts, that consumers’ credit reports may suffer, or that debt collectors may continue to call you. Free Initial Consultation with Commercial Debt Negotiation LawyerIt’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!
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
The post Commercial Debt Negotiation first appeared on Michael Anderson.
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How To Hire An Estate Planning Attorney Divorce Filings High In January Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Michael Anderson https://www.ascentlawfirm.com/commercial-debt-negotiation/ Estate planning is a process that involves making advanced plans for end-of-life issues and for property and assets when one passes away. Any person may become sick or hurt, creating a situation where they need nursing care or where tough choices must be made about medical treatment. Every person will eventually pass away, which cause undue problems if no plans could have been made regarding assets and property. Estate planning utilizes legal and financial tools to address the issues that arise in case of illness, incapacity, and death. The planning process is different for everyone, because you may have your own unique goals, like supporting a charity or paying for your child’s college education. A good attorney will listen carefully to you, ask questions that help you to shape the estate planning process, and assist you in using the right tools. An estate plan may involve the following steps• Creating a last will and testament. When Should I Make an Estate Plan?It is important to make an estate plan as soon as you have assets, have anyone depending upon you, or have become an adult with your own opinions about your medical care. Many people mistakenly believe estate planning isn’t something they need to worry about yet, but this is simply not true. It is wise to create an estate plan if any of the following are true• You have a spouse and/or child you want to be provided for if something happens to you. Simple Steps to an Estate PlanYou may have heard that you need to make an “estate plan,” but what does an estate plan cover and how do to make one? Here is a simple list of the most important estate planning issues to consider. Make a will.In a will, you state who you want to inherit your property and name a guardian to care for your young children should something happen to you and the other parent. Consider a trust.If you hold your property in a living trust, your survivors won’t have to go through probate court, a time-consuming and expensive process. Make health care directives.Writing out your wishes for health care can protect you if you become unable to make medical decisions for yourself. Health care directives include a health care declaration (“living will”) and a power of attorney for health care, which gives someone you choose the power to make decisions if you can’t. (In some states, these documents are combined into one, called an advance health care directive.) Make a financial power of attorney.With a durable power of attorney for finances, you can give a trusted person authority to handle your finances and property if you become incapacitated and unable to handle your own affairs. The person you name to handle your finances is called your agent or attorney-in-fact (but doesn’t have to be an attorney). Protect your children’s property.You should name an adult to manage any money and property your minor children may inherit from you. This can be the same person as the personal guardian you name in your will. File beneficiary formsNaming a beneficiary for bank accounts and retirement plans makes the account automatically “payable on death” to your beneficiary and allows the funds to skip the probate process. Likewise, in almost all states, you can register your stocks, bonds, or brokerage accounts to transfer to your beneficiary upon your death. Consider life insuranceIf you have young children or own a house, or you may owe significant debts or estate tax when you die, life insurance may be a good idea. Cover funeral expenses.Rather than a funeral prepayment plan, which may be unreliable, you can set up a payable-on-death account at your bank and deposit funds into it to pay for your funeral and related expenses. Make final arrangements.Make your end-of-life wishes known regarding organ and body donation and disposition of your body — burial or cremation. Protect your businessIf you’re the sole owner of a business, you should have a succession plan. If you own a business with others, you should have a buyout agreement. Store your Utah Estate Planning documents.Your attorney-in-fact and/or your executor (the person you choose in your will to administer your property after you die) may need access to the following documents: Utah Estate Planning ProcessIt is natural for many people to put off planning their estates. After all, no one wants to anticipate his or her own death. In addition, many people may believe that only the wealthy require estate planning or that all that is involved is tax planning, which can be done “later.” They may well be wrong on both counts. Your level of wealth and the ultimate tax consequences of your estate become secondary to the planning and care of your family and other heirs. A well-structured estate plan is invaluable. Through it, you can control the distribution of your assets and possessions, as well as name guardians for your children or plan care for other dependents. While the estate planning process can raise some difficult emotional and personal issues, your heirs will be glad you did it, and you will know that your wishes are assured. Your first step should be to assemble a competent, professional estate planning team. Your attorney, financial service professional, insurance agent, bank trust officer, and/or accountant are all possible members of your team, depending on the size and complexity of your estate. They can help you complete an analysis of your current estate by looking at your financial position as of today and helping you analyze your family’s needs for the future. Does a family member have special needs or require medical attention? How much will an education cost when your children reach college age? How will your family’s overall cost-of-living requirements change? How will estate taxes affect your assets as they are currently held? The answers to these questions can help you develop an estate plan that will adequately provide for your family’s needs. What Information Should Be Gathered?A thorough estate analysis requires gathering any and all materials involving current or future income, property ownership, insurance, and legal arrangements already in place. This includes records of the following: Reasons You Need a Utah Estate PlanWhile there are a variety of reasons why people decide to meet with an estate planning attorney and create an estate plan, here are the most valuable reasons. Essential Estate Planning DocumentsIf your current family and financial situations do not warrant the need for a revocable living trust, then your foundational estate plan will include the following four important legal documents: Free Initial Consultation with Utah Estate Planning LawyerIt’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!
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Ascent Law LLC
The post Utah Estate Planning first appeared on Michael Anderson.
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Wills And Estate Planning Attorney Near Me How To Hire An Estate Planning Attorney Ascent Law St. George Utah OfficeAscent Law Ogden Utah Officevia Michael Anderson https://www.ascentlawfirm.com/utah-estate-planning/ When you die, you leave behind your estate. Your estate consists of your assets–all of your money, real estate, and worldly belongings. Your estate also includes your debts, expenses, and unpaid taxes. After you die, somebody must take charge of your estate and settle your affairs. This person will take your estate through probate, a court-supervised process that winds up your financial affairs after your death. The proceedings take place in the state where you were living at the time of your death. Owning property in more than one state can result in multiple probate proceedings. This is known as ancillary probate. How does probate start?If your estate is subject to probate, someone (usually a family member) begins the process by filing an application for the probate of your will. The application is known as a petition. The petitioner brings it to the probate court along with your will. Usually, the petitioner will file an application for the appointment of an executor at the same time. The court first rules on the validity of the will. Assuming that the will meets all of your state’s legal requirements, the court will then rule on the application for an executor. If the executor meets your state’s requirements and is otherwise fit to serve, the court generally approves the application.What’s an executor?The executor is the person whom you choose to handle the settlement of your estate. Typically, the executor is a spouse or a close family member, but you may want to name a professional executor, such as a bank or attorney. You’ll want to choose someone whom you trust will be able to carry out your wishes as stated in the will. The executor has a fiduciary duty–that is, a heightened responsibility to be honest, impartial, and financially responsible. Now, this doesn’t mean that your executor has to be an attorney or tax wizard, but merely has the common sense to know when to ask for specialized advice. Your executor’s duties may include: What if you don’t name an executor?If you don’t name an executor in your will, or if the executor can’t serve for some reason, the court will appoint an administrator to settle your estate according to the terms of your will. If you die without a will, the court will also appoint an administrator to settle your estate. This administrator will follow a special set of laws, known as intestacy laws, that are made for such situations. Is all of your property subject to probate?Although most assets in your estate may pass through the probate process, other assets may not. It often depends on the type of asset or how an asset is titled. For example, many married couples own their residence jointly with rights of survivorship. Property owned in this manner bypasses probate entirely and passes by “operation of law.” That is, at death, the property passes directly to the joint owner regardless of the terms of the will and without going through probate. Other assets that may bypass probate include: How Does the Probate Process Work?Every estate and every Will is different. The exact probate process can vary depending on the instructions left in the Will and the assets, creditors, and beneficiaries the estate has. How Long Does Probate take?This will take about a year for most estates. The exact amount of time will depend on the size and complexity of the estate. International probate can be more complicated and usually takes between six months and two years. Sometimes disputes can come up during probate between the executor, beneficiaries, creditors, or tax authorities. These disputes can delay you in administering the estate. How Much Does Probate Cost?We offer a highly personalized service for each of our customers. The cost will depend on the amount of work you’d like us to do. Who Can Apply For Probate?Only the executor named in the deceased’s Will can apply for probate to administer their estate.If you have been named executor but don’t want to administer the estate yourself, your lawyer or law firm can apply for you. If someone dies without a Will, they are said to be intestate. The intestacy rules will say who can apply to administer the estate instead. Can You Get Probate If There Is No Will?You can’t get a Grant of Probate if there isn’t a Will, but you can still administer the estate and distribute inheritance through a slightly different process. The rules of intestacy set out who can apply to administer the estate with a Grant of Administration. Without a Will deciding how to pass on the assets, the administrator distributes inheritance according to the rules of intestacy. Only spouses, civil partners, children, and other close relatives can inherit under these rules. Can I Challenge Someone’s Will?You may be able to challenge or contest a Will if you think it doesn’t accurately represent the deceased’s intentions for their estate, or because you think it is invalid for other reasons. Can A Will Be Changed After Death?You can change a valid Will, but you can only make changes to the share of the inheritance that it has given you. You will need to apply for a document called a deed of variation, or a deed of family arrangement, to do this. Changing a will after someone dies can be a tricky process. What Rights Does A Beneficiary Have?A beneficiary is someone who is due to receive an inheritance from an estate. If you’re a beneficiary of a Will, you’ll have certain beneficiary rights that the executor of the estate needs to abide by. If the deceased has left a valid Will, the beneficiaries of their estate will be named in the Will. If there is no valid Will, the beneficiaries will be chosen according to the intestacy rules. Beneficiaries have a right to information during the probate process. It is the executor’s responsibility to keep beneficiaries up-to-date with how the estate administration is progressing. They must keep accounts for the estate and show them to beneficiaries when asked. Beneficiaries can take legal action against an executor if they breach these rights or if the executor is otherwise mismanaging the estate. How to Avoid ProbateIt is possible to avoid probate entirely with careful planning. This is desirable for some people because doing so not only reduces legal fees, but it can mean avoiding the estate tax, which can take a significant amount of a very wealthy estate. Avoiding probate can also protect privacy, since some of the records may not be available to the public. One of the most popular ways to avoid probate is through the use of a revocable living trust. Assets are placed in the trust, but they can used by the trust creator during his or her lifetime. Upon death, assets in the trust are passed to the trust beneficiaries just by operation of the trust document. No probate is necessary. Life insurance policies pass property outside of probate. Whoever you name as beneficiary on your life insurance policy will receive the death benefit directly with no probate process. Some retirement accounts can pass outside of probate. The account owner names a beneficiary and that person then receives the balance of the account after the owner’s death. Payable on death accounts operate the same way. Real estate that is owned as joint tenants, or joint tenants by the entirety passes outside of probate as well. This type of property has two owners. When the first owner passes away, the second one automatically owns the property. Most families will have some contact with a probate court whether or not a will was created, but in most cases, the process is streamlined and inexpensive. What Is the Difference between a Traditional Will and a Military Will?Soldiers and sailors have long been exempted from the above stringent requirements of a traditional will. Because a sailor or soldier is in close proximity to extremely dangerous conditions, it is seen as appropriate that they can change their will as they see fit to accommodate their dangerous occupation. As such, anyone in “actual military service” has a lower standard when drafting their will. Military wills differ from traditional wills in several ways: When Do You Have to Go Through Probate?Leaving a will behind when you die is the responsible thing to do. But leaving a will, doesn’t always mean that there’s no need for probate. An estate may undergo formal probate for many reasons including when a will is contested, unclear, or invalid, or when the assets are held only in the deceased’s name. And when there’s no will, probate is often required to oversee the distribution of the deceased’s property. As a general rule, you’ll want to avoid probate if possible. Unfortunately, there are situations where you don’t have a choice. Let’s explore those situations that determine when you have to go through probate. When There’s A WillDetermining if a will needs to go through probate depends on the laws of your state and the property you hold at death. Some states, such as Washington, do not require probate to be filed. Other states base the need for probate on the value of the estate. Common situation when you have to go through probate with a will include: When There’s No WillWhen a person dies without a will, they are said to have died “intestate”. The laws of the state where you reside will determine how your property is distributed upon your death. However, probate administration when there’s no will is similar to when there is one. When you die, your property is classified as either probate property or non-probate property. Free Initial Consultation with LawyerIt’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!
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