From Probate Basics to Fiduciary Litigation, Provo Attorneys Serve Will Executors and Trust Administrators in Utah Valley
We help make wills and trusts with tax-minimizing estate-planning strategies
Fillmore Spencer LLC helps those leaving estates and trusts minimize the tax burden that might otherwise saddle their lifelong earnings. We also help those who must see estates through probate and administer trusts make legally compliant decisions and honor the missions with which they are charged. We want to help you, contact us today!
What is probate?
Probate ensures the property of the deceased is collected and safeguarded, the deceased’s debts and taxes are paid, will beneficiaries are notified, and all remaining assets are distributed to the beneficiaries according to the deceased’s will or, if there is no will, state guidelines.
The person overseeing probate is called the estate executor. If the deceased died without a will, the district court will appoint an estate administrator, typically the deceased’s spouse or other beneficiary. The executor or administrator usually has a probate lawyer prepare and file probate-opening documents with the probate court, and is responsible for locating all assets, notifying all beneficiaries and the public, and ensuring probate-closing documents are filed with the probate court. Thereafter, estate assets are distributed to heirs and other beneficiaries, and the court discharges the personal representative from further responsibility.
Probate must be filed within three years of the deceased’s passing, and will take from four months to a year or more to complete. In Utah, estates smaller than $100,000 may be able to forego probate by filing an out-of-court affidavit.
What is probate litigation?
Fillmore Spencer LLC prosecutes and defends all manner of probate litigation. We counsel and represent:
- Personal representatives — Estate executors may be sued for allegedly improper notification, obfuscation or misuse of estate funds, failing to properly preserve assets during probate, failing to observe the testator’s wishes or otherwise failing to comply with state probate law.
- Beneficiaries — Beneficiaries may contest the will’s validity, their share of the estate, the estate’s administration or the inclusion of other beneficiaries. Challenging a will can be an all-or-nothing process, however: it is not uncommon or a will to stipulate that beneficiaries who contest and lose their argument forego their right to an inheritance.
- Creditors — As in personal bankruptcies, Fillmore Spencer LLC represents the rights of creditors to claim what is owed them from an estate. A creditor has three months from the executor’s first publication of the Announcement of Appointment and Notice to Creditors to make a claim. If the executor disallows their claim, the creditor may appeal by filing a petition with the probate court.
- Trustees — In the case of revocable trusts and testamentary trusts, where trust assets are subject to probate or estate taxation, trustees may be involved in probate litigation. As with non-probate trustees, Fillmore Spencer LLC handles litigation alleging failure to observe the trust’s mission and the intentions of the trust’s grantor, trust mismanagement and other breaches of fiduciary responsibility.
- Other parties — We represent would-be beneficiaries who contest the will’s validity and their omission therefrom.
Avoiding probate and estate taxes
There are several ways property can avoid probate, including:
- Assets owned as joint tenants with rights of survivorship — All property left to a surviving spouse avoids probate and federal estate tax. This includes assets such as a bank account or a home or other real estate that are owned as joint tenants with rights of survivorship.
- Pay-on-death bank accounts or transfer-on-death stock brokerage accounts — The proceeds from these accounts go to the beneficiary you name probate free, as long as that doesn’t conflict with other components of your estate plan.
- Insurance proceeds, including life insurance and accidental death benefits — These proceeds bypass probate but will be subject to estate taxation unless the insurance policy is held by an irrevocable trust.
- Property held by a trustee of a living trust — If the living trust is revocable, its assets may bypass probate and go directly to beneficiaries, but those assets will be subject to estate taxation. If the living trust is irrevocable, then the assets are not part of the estate and may bypass not only probate but also estate taxation.
- Property held by a charitable, special-needs or other irrevocable trust — As with the irrevocable living trust, property that belongs to an irrevocable charitable or special-needs trust is free from probate and estate taxation.
- Death benefits of annuities, pension plans and retirement accounts — Money inherited from company pensions and 401(k)s, and even individual retirement accounts (IRAs), is not subject to probate, but is subject to estate tax consideration. Because the IRA has been funded with pre-tax dollars, IRA beneficiaries are also liable for income taxes due when the funds are withdrawn.
Retain an attorney experienced in the ins and outs of probate
If you are planning your estate or administering an estate for another, look to Fillmore Spencer LLC for thoughtful, experienced counsel and representation concerning probate. Call us at (801) 426-8200 or contact us online to schedule a free initial consultation.