BY: PHILLIP E. MILLER

(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

As an associate attorney, I have had many friends and family taking an interest in the wills, trusts, and estates portion of my practice.  When they realize that I do indeed do wills and trusts they realize that, like everyone, they too will die someday and they will need a will and/or a trust.[1]  After they realize that they need a plan they realize they have no idea what that plan should look like. So their next question is always, “do I need a will or a trust?”  It is a very complex question but there are a few basics that make the decision easier. 

The answer to what kind of plan you need is a very complex one.  I cannot get into all of the intricacies and complexities in this article.  But, this article will hopefully be a good introduction so when you are ready to draft your estate plan you will at least know if you want a will and/or a trust and what the differences are.  So you can begin your time with your attorney diving into your specific issues and not waste time having the concepts introduced to you.

The first consideration is money. Do you have lots of money or not very much?  A will is significantly cheaper than a trust.  We can do a will for as little as $300.  An estate plan with trusts will start at around $1000 and may be more depending on the complexity.  Not only is the direct cost a consideration, but if you have an estate worth less than $100,000[2] and do not have a home or property then a will is a good way to go because you may not need to do a probate which will save you another $360 for the filing fee.

Young families may also choose to do a will so they can take care of the guardianship of their children if the parents pass away.  At this time in a person’s life you generally do not have very much money but planning for your budding family’s future is an important consideration.  A will does not cost very much and can accomplish all of your goals.

If you have more money and an estate worth over $100,000 a trust is usually the way to go.  A trust can save having to probate the estate.  Within a trust you can also develop a comprehensive distribution plan that may take care of more complicated situations.  For instance, distributing money to grandchildren over time to help pay for college.

After I explain all of this everyone is always wondering what is this dreaded probate? Why should we care?  For starters a probate costs a $360 filing fee.  Then, probate is the involvement of the court.  Usually, people hire an attorney to do a probate for them.  Even in the most basic of circumstances it will usually cost a minimum of $1,000 in attorney’s fees and can be significantly more if it is contested.

The ultimate goal of the probate is to distribute the property of the decedent.  This is usually done by the appointment of a Personal Representative.  The Personal Representative is the person that has the authority to sign deeds, ect., on behalf of the decedents estate.  When a person is alive they can sign the deeds or appoint someone through a power of attorney to sign them for them.  When they die the power of attorney goes away and there is no living person available to sign deeds.  The court thus appoints someone to do so and that person is called the Personal Representative.

When a person has a trust, the trustee is the person who is able to sign deeds and make distributions.  The trust documents will establish who the trustee is or how a trustee is appointed.   The trustee simply follows the direction of the trust documents and distributes the estate.  There is no need for any court involvement at all.  Trusts work very well for distributing property upon death.  There are several other reasons to have a trust one of which Mr. Scribner will explain in his article.

You may now be wondering how does a trust work? How does it skip the probate process?  Do I have to deed my property to the trust?  Do I lose control of my property if I put it in the trust?  These are all great questions that I will get to in my next article.

[1] A will or trust is not necessary for property to pass upon death.  U.C.A 75-2-101 through U.C.A 75-2-104 lists the priority of intestate succession.

[2] U.C.A. 75-3-1202 sets other requirements besides the estate being less than $100,000.