Penalty ("in terrorem") Clauses. Occasionally, clients request that I include a provision in their trust disinheriting any beneficiary who contests the trust, brings an action against the trustee, or otherwise, as they put it, "causes trouble" when the estate is settled. Utah law (UCA 75-7-112) provides that any such clause which penalizes a beneficiary for bringing such an action is unenforceable, as long as “probable cause” exists for instituting the proceedings. However, frivolous actions by a beneficiary (or a non-beneficiary) could, indeed, result in a “penalty” being enforced and that beneficiary being disinherited. What is “frivolous?” Good question! Any estate contest should only be considered after obtaining proper advice from a competent estate planning attorney, and not just because you’re dissatisfied with a decedent’s estate plan or your share.

Settle A Decedent's Estate Promptly! When a loved one dies, it's important to notify us immediately, to insure that various tax benefits are achieved and to insure that the decedent's assets are distributed properly. For example, if you are married, and your estate exceeds $3,500,000, it's important to divide your trust assets between the Marital and Family trusts (assuming your trust contains these provisions!). This will reduce or eliminate death taxes for your survivors. Also, if any of your assets are not titled in your trust at your death, they can be "poured-over" to your trust by your "Pour-over Will." However, Utah requires all wills to be probated within 3 years of the decedent's death. If the decedent's estate is not settled within 3 years, his Will cannot be probated and will not be effective to transfer his probate assets into his trust. The assets will, instead, be transferred to his "heirs at law," who may be different from his trust beneficiaries whom he intended to receive his estate.

Excellent Estate Planning Article! www.nytimes.com/2009/02/26/your-money/estate-planning/26estate.html?em

Rich or Old? You don't have to be "rich" or "old" to plan your estate! Young parents who have few assets need to plan their estates, as do older, more affluent people. What would happen if a young couple with small children (and few assets), perish in a "common accident?" Who would rear their children? Even if the parents make a will naming guardians for their children, how will the guardians (assuming they accept that role!) pay for the health costs, education and support of the deceased couple's children? Accepting the role of guardian means that you have the legal and moral responsibility to provide for your young wards, and if few assets were left for their care, you (as legal guardian) have to pay for it! Here's a simple solution:

Young parents first need to buy sufficient life insurance to insure proper financial care for their children. (If you're in your 20's or 30's, and in good health, you can buy $500,000 of 30-yr., level term insurance for $300 to $600 premium per year.) Next, set up a living trust with your spouse and children as beneficiaries, and specify in the terms of your trust how its assets will be used to care for your family. Then, make the trust the beneficiary of your insurance, which provides the trust the needed liquidity so that its terms can be properly carried out. Finally, name a responsible trustee (i.e., the "money manager") to manage the trust and execute a "pour-over" will naming the guardians who will rear your children. This simple plan allows young parents to financially (and affordably) provide for their family's care and to specify in detail how and by whom their funds will be used for that care.

What about the cost of the estate plan? Most simple estate plans (living trust, will, powers of attorney, etc.) can be established for as little as $500 (much less than what parents spend for recreation!). Please call us for details.

2009 Prepaid Estate Planning Review Service. I recently mailed an invitation to our clients to subscribe to our 2009 Prepaid Review Service. For $69, you can have your estate plan (trust, will, powers of attorney, etc.) reviewed by us (anytime during 2009) to be sure it conforms to your planning objectives (additional charge for document amendments). Most law firms charge $200-300 per hour for this service, and this program is our way of helping you keep your plan updated at minimum cost. To subscribe, or to make a review appointment, please call our office at 801-262-8889.