Elmer McDuffy: Probate Lawyer Midvale Utah

Speak to an experienced Midvale Utah probate lawyer before you make you will. While the act of preparing a will may not be the most obvious route to restoring control and authority to a person’s life, it can in fact be a very empowering experience. To write a will is to take the law by its collar, pull it down to eye level, and say, “You are going to respect me, my wishes, and my relationships with people who are important to me—and you are going to do it my way.” To understand how, it is necessary to understand what a will is all about.

A Will Defined – Property and Rights

A will is an instrument that you draw up, usually with the help of a lawyer, to outline your wishes for the dispensation of rights you possessed while alive. Speak to an experienced Midvale Utah probate lawyer before you make your will. In your will, you bestow these rights on people who are important to you. They can be family members or they can be people who are not related to you but whom you regard as family or as deserving. The will allows you to have a say when you are no longer here to exercise those rights. Because of this, a will is only valid after its subject is deceased. Thus, a will is different from a power of attorney, which is only valid while its subject is alive. Seek the assistance of an experienced Midvale Utah probate lawyer when you are preparing your will.

We tend to think of property as something that we own outright, but what we actually own are rights over the property. A will should not be viewed as an instrument for giving away property ownership but for granting rights over certain properties that you own. If you have paid for your property entirely, you own almost all the rights over it. If you have only paid for part of it, you own some rights over it while others are held by the creditor who loaned you the money for the purchase. Each day each of us exercises rights over our property. Property, if you will, is merely a physical manifestation of power, a tangible representation of a person’s rights.

From this perspective, a will becomes less morbid, more an exercise of power. View it less as “I’m giving away my property because I am dying” than as “I am going to design a distribution of power and it will be absolute power.”

Motivations—Why People Make Wills

An experienced Midvale Utah probate lawyer understands that property is not the sole guiding factor in writing a will; there are others that often are psychosocial in nature. Most lawyers don’t usually warm up to words like “psychosocial;” and most probably couldn’t define them. “Psychosocial” evokes “feelings” and is far removed from solid legal terminology. Social workers talk about feelings quite a bit, using words like “sharing”; meanwhile, most people think that the closest expression in the legal vocabulary to the concept of sharing is the term “contingency fee.” If you are looking for a lawyer, and you interview a lawyer who doesn’t seem to grasp this truth, keep looking. Don’t hire the first lawyer you come across. You need an expert – an experienced Midvale Utah probate lawyer.
When the Law Writes Your Will

Having written a valid will, you are “testate.” To die without a will is to die “intestate,” in which case certain laws govern what happens to your rights and property. In essence, then everyone has a “will” whether or not it is written on paper. Automatically “written” by law on your death, it is based on your legal relationship to other people. When you write your own will, these intestacy laws are essentially rewritten by you and can include people with whom you do not necessarily have a “legal” or blood relationship. There is a general pattern to the ways that the laws of intestacy run:

• If you have a spouse and children, the law will usually provide for them out of the estate with some sort of division among them. If there is a spouse or children only, then the estate will go to them.

• If there is no spouse and there are no children, then the law delivers the estate to a parent, or, if both are living, in equal shares to each.

• If no parents, no spouse, and no children exist, then the law will look for brothers and sisters;

• then for aunts and uncles,

• then for cousins, and

• finally for grandparents.

At this point, if the law can find no relatives, then the state where you live steps in, generously relieving you of the burden of your estate. Don’t let your estate be distributed according to Utah intestate laws. Make your will with the help of an experienced Midvale Utah probate lawyer.
To make a will is to choose for oneself who will have rights over the estate. If you have a parent from whom you are estranged and one with whom you are close, they will both inherit equally if you have no spouse or children unless a will is written. Your will forestalls the “default” formula set up in the Utah laws of intestacy.

Powers of Attorney

A power of attorney is the delegation of authority to another individual to do that which you have the right to do yourself.

A power of attorney can be broad or specific, last forever or for a limited time, and be stated broadly, effective for all purposes, or stated only for specific purposes. The instrument can take effect immediately upon signing, or it can take effect only with the occurrence of a subsequent event, such as disability. There are different types of power of attorney for general, financial, and business use.

A power of attorney may concern your personal finances or it may be about business, authorizing another person to sign contracts for you in your place. It can also address medical decision making, authorizing another person to make medical decisions for you if you are incapable of making your own.

There are also different types of a power of attorney. For instance, a durable power of attorney means that the validity of the document is not affected by the subsequent disability of the signer. For example, if John Doe signs a power of attorney over to Jane Smith and is subsequently incapacitated, the document may no longer be valid. But if it is a durable power of attorney, the document retains its validity. The process of writing a will and a power of attorney need not be complicated, expensive, or unpleasant. In fact, these instruments can mean something very special.
Taken together, the power of attorney document and a last will and testament form a powerful legal bond between two individuals. It is important to bear in mind the difference between the two documents, however. A will only concerns rights to be exercised after one’s death and is only valid when, after one’s death, it goes through a court procedure that declares it a valid instrument. A power of attorney, on the other hand, is a contract between the living and is only valid while the principle is alive.

Writing an actual will

You have seen what happens when the law writes your will for you. When you make your own, it is important to understand the mechanics of writing a will. One of the most frequent questions concerning the composition of a will is “Can’t I just write it myself?” In fact, you can write it yourself in most states, and stationery shops frequently sell forms that you can fill in. However, just as it is not necessarily the best decision to let the law write it for you, it is also not always prudent to write it yourself. Remember, lawyers go to law school for a reason. A will is only valid after one dies and after it is taken to court by the person who is named as the executor. The court examines it and, if all is in order, declares that it is valid, a process known as probate. The way the will is written and executed is the only means by which a court gets to know the testator, the person who made and signed the will. Therefore, the court first scrutinizes the rights of those who would have inherited the estate had there been no will (under the laws of intestacy) and in doing so, looks with great care to the document itself to ensure that:

• the will was not forged – It was made by the testator himself

• there was no undue influence over the testator to write the will in a way different than would otherwise have occurred, and

• the testator was of sound mind when signing the will.

The court ensures that these conditions are fulfilled by assuring itself that the document has been drawn up and signed in accordance with the state’s statutes. Therefore, the way a will is written or signed will determine whether or not it faces an easy time before the court during probate. If one of these conditions is not met, then the will might be challenged successfully, and, in fact, a violation of these conditions is the only way a will challenge can be successful. In looking at the will document and the circumstances surrounding its signing, the court looks for certain red flags warning that one of those three conditions may not, in fact, be satisfied and that the will demands further scrutiny.

An experienced Midvale Utah probate lawyer, trained to know the law surrounding wills, can write them and have them signed in accordance with the statutes Since the objective of doing a will in the first place is to direct an orderly transfer of your rights over to people you choose, it makes sense to hire someone to do that who is trained to make that happen – an experienced Midvale Utah probate lawyer.

The primary purpose of the will is to dispose of rights possessed by the testator to beneficiaries named by the testator. In doing so, one declines the provisions of the laws of intestacy in order to fulfill one’s own wishes. In essence, the testator replaces the will the law writes automatically with his or her own. By the laws of intestacy, the rights of the deceased are divided among legatees, those whom the laws of intestacy favor when a person dies without a will.

If you want to probate the will of your close relative who has passed away, speak to an experienced Midvale Utah probate lawyer. Probate is a complex process. Once you file for probate, a disgruntled relative who has been disinherited by the will may challenge the will. It’s important to fight the challenge. Fighting the challenge can be a tough task especially if the disgruntled relative is determined to fight it out. During such times, having an experienced Midvale Utah probate lawyer assist you is probably the best thing that can happen to you.

Disinherited? We Might Be Able To Help Your

If you have been wrongly disinherited by your close relative or you strongly believe that your deceased relative’s will was made under undue influence, speak to an experienced Midvale Utah probate lawyer. Utah law has provisions to challenge a will. All wills must go through probate. When an application for probate is made, it is open for interested parties to challenge the will. It’s at this time that you should challenge the will. There is no point in challenging the will when your relative is alive. In fact you cannot challenge the will at that stage. A will becomes operative only on the death of the testator – the person making the will. If your relative is still alive, you are better off talking to the relative rather than challenging the will in court. There is a time for everything and the time to challenge a will is when it goes through probate.

Midvale Utah Probate Attorney Free Consultation

When you need legal help with a probate case in Utah, please call Ascent Law LLC (801) 676-5506 for your free consultation. We can help you with Estates. Estate Planning. Estate Administration. Probate Lawsuits.
Probate Disputes. Probate Administration. Last Wills And Testaments. Revocable Living Trusts. Irrevocable Trusts. Asset Protection Trusts. Health Care Powers of Attorney. General Durable Powers of Attorney. Limited Powers of Attorney. And Much More. We want to help you.