Last Will and Testaments Require Probate

On a regular basis, clients or potential clients will tell me that “I have a Last Will and Testament, so I won’t have to Probate when I die.”   Unfortunately, this couldn’t be further from the truth.

A Last Will and Testament, or a Will for short, is a document that is created during life, that identifies that upon the Will maker’s passing he or she wants a named individual to act as Personal Representative, or Executor.  The Personal Representative, or Executor, is appointed to gather in the deceased person’s assets, pay legitimate creditors and then to distribute the remaining assets to those individuals identified in the Will as the deceased person’s heirs.  Before the named Personal Representative or Executor has any authority pursuant to a Will, the Will must be authenticated by the District Court for the county in which the Will maker lived when he or she died.  Only then will the Personal Representative or Executor have the legal authority to gather and manage the deceased person’s assets.   Or in other words, until a judge reviews a Will and finds that the Will is a valid Will, the person identified as the Personal Representative or Executor has no authority and cannot do what the Will identifies that the deceased person wanted done with his or her assets.  The legal proceeding by which a judge reviews a Will to determine whether that Will is a valid (or invalid) Will and gives authority to the Personal Representative, or Executor, to do what the Will says should be done with the deceased person’s assets is called Probate.

There are several effective ways to avoid Probate, the most common of which is by having a properly drafted Living Trust.  If you have additional questions regarding Wills and Probate, or want to learn about how to avoid Probate through a Living Trust, contact Mountain View Law Group for a free Estate Planning Consultation with Addison D. Larreau.  Mountain View Law Group can be reached at (801) 393-5555 or at MountainViewLawGroup.com.

Can I keep my house if I file bankruptcy?

You’ve worked hard to buy a house and to provide a home for your children.  However, life happens – maybe you’ve had your hours reduced at work, or an illness has caused large medical bills.  Now the bank is breathing down your neck.  Bankruptcy can be useful in helping you get back on track and keep your house.  Of course, it does depend on your specific situation but filing for bankruptcy does not mean that you will automatically lose all of your property.  In a chapter 7 case, you can keep all property which the law says is “exempt” from the claims of creditors.  In determining whether property is exempt, you need to consider the value of the property and any loans you may have against the property.

If you are current on your mortgage payments, and you are also able to keep making the loan payments, Chapter 7 may be an option for you to wipe out your other, unsecured debts so that you can focus on your home.  If you are behind on your mortgage payments, Chapter 13 may be able to help you stop a foreclosure and catch up on the back payments over a period of time

If you are considering bankruptcy, but are worried about how it will affect your home, please contact me at 801-393-5555 for a free initial consultation.

Workers Injured on the Job have the Right to Medical Care

At Mountain View Law Group, we help people who are injured at work recover the medical benefits, lost wage benefits and other benefits provided by law when those benefits are being denied by their employers and their employers’ Workers Compensation Insurance companies.

Our attorneys have worked on hundreds of cases, with injures ranging from herniated discs and subdermal hematomas (bleeding on the brain) to sprains and torn muscles.  While the severity of the injury is important in determining the type of Workers Compensation Benefits to which an Injured Worker has the right, the fact is that all workers injured on the job do have the right to at least some Workers Compensation benefits.  For example, every worker injured on the job has the right to medical care paid 100% by the employer’s Workers Compensation Insurance company.  Most employers will require injured workers to initially see a doctor at a clinic selected by the employer or the employer’s Workers Compensation Insurance company, however, the injured worker has the right to select his or her own doctor after that initial doctor’s visit.  There are some restrictions on how and when an injured worker can switch to a different doctor, so it is a good idea to consult with a Workers Compensation Attorney before changing doctors after a work injury.

If you have been injured while working, please contact us at (801) 393-5555, or go to utahslawfirm.com and ask for more information regarding your rights as an injured worker.  While we are located in Ogden, Utah, Mountain View Law Group serves clients located throughout Utah.

Is Spouse Entitled to Interest in Inherited Home?

So you are getting divorced and your spouse inherited the home where you lived during the marriage.   While inherited property is usually awarded to the inheriting party, this is not always the case.  The Utah Appellate Courts have advised that under certain facts you may be able to claim an ownership interest in property that was inherited by your spouse.  Specifically, if you contributed to the improvement, maintenance or protection of the property, you may be entitled to claim an equitable interest in the property.   What this means for you is that if you lived in a home that your spouse inherited, and you can show that you contributed to the home, you may have an ownership interest in the home, no matter what your spouse or his or her attorney tells you.

Contact the attorneys at Mountain View Law Group today 801-393-5555.   They can help make sure that you get everything that you are entitled to from your divorce.

Estate Planning to Care for Children with Special Needs

Parents of children with special needs must be particularly careful in how they estate plan to avoid creating a scenario in which their special needs child is disqualified for benefits such as Social Security Disability Benefits, Medicaid, housing benefits and other needs based benefits for those with special needs.  The use of a special type of Trust, known as a Special Needs Trust  is the ideal way to protect a special needs child’s right to benefits while also making assets available to supplement and enhance the special needs child’s standard of living.

If a parent fails to create a proper Estate Plan or creates a typical Will based or Living Trust based Estate Plan, upon the parents’ death, any inherited assets will transfer to the special needs child or his or her guardian.  Upon this occurring, the special needs child will typically be disqualified for need based benefits, such as Social Security Disability, Medicaid and housing benefits, until the inherited assets have been depleted.  Once the assets inherited from the parents or grandparents have been depleted, the special needs child will then need to reapply and requalify for benefits. This can create a significant hardship for the special needs child and his or her guardian.  There is a better way to Estate Plan to protect a special needs child from this hardship – the use of a Special Needs Trust (“SNT”).

A SNT is a Trust created by the parents or grandparents of a special needs child which provides that assets owned by the Trust are to only be used to supplement – and not replace – financial, medical and housing benefits for which the special needs child qualifies or may in the future qualify.  Someone other than the special needs child will act as Trustee and will have discretion how and when to use the SNT assets.  The special needs child has no ability to compel the Trustee to use or distribute funds for the special needs child’s benefit.  Because the special needs child cannot determine when or how the SNT assets are used, the SNT assets are not attributed to him or her as assets or as income for determining his or her qualification for needs based financial, medical or housing benefits.

The great benefit of a SNT is that assets left for the benefit of a special needs child can be used to supplement the standard of living for the special needs child, rather than be consumed in providing for the basic needs that typically would be provided for with financial, medical and housing benefits available to the special needs child.  SNT assets would typically be used by the Trustee for activities such as recreation, education, travel, uncovered medical and dental needs and other activities or needs which were provided to the special needs child by the parents or grandparent while they were alive.  This allows the parents or grandparents to continue to elevate and bless the life of the special needs child even after the parents or grandparents have passed on.

SNT are complex and must be very carefully drafted to be effective in preserving a special needs child’s financial, medical and housing benefits.  Addison D. Larreau, Mountain View Law Group’s Estate Planning Attorney, has extensive experience in drafting and implementing Special Needs Trusts for concerned parents and grandparents.  Please contact Mountain View Law Group at (810) 393-5555 to schedule a complimentary appointment with Addison D. Larreau to discuss your Estate Planning needs.