Utah County Probate

Probate is the official way that an estate gets settled under the supervision of the court. A person, usually a surviving spouse or an adult child, is appointed by the court if there is no Will, or nominated by the deceased person’s Will. Once appointed, this person, called an executor or Personal Representative, has the legal authority to gather and value the assets owned by the estate, to pay bills and taxes, and, ultimately, to distribute the assets to the heirs or beneficiaries. The purpose of probate is to prevent fraud after someone’s death. Imagine everyone stealing the castle after the Lord dies. It’s a way to freeze the estate until a judge determines that the Will is valid, that all the relevant people have been notified, that all the property in the estate has been identified and appraised, that the creditors have been paid and that all the taxes have been paid. Once all of that’s been done, the court issues an Order distributing the property and the estate is closed. Not all estates must go through probate though.

First, if an estate falls below a certain threshold, it is considered a “small estate” and doesn’t require court supervision to be settled. Click here to find out Utah’s small estate threshold and procedure. Second, not all assets are subject to probate. Some kinds of assets transfer automatically at the death of an owner with no probate required. The most common kinds of assets that pass without probate are:

• Joint Tenancy assets-when one joint tenant dies, the surviving joint tenant becomes the owner of the entire asset, without the need for a court order. This is called “right of survivorship.” For example, if a house is owned this way, “Jane Sage and John Sage, as joint tenants,” and Jane dies, John owns the entire house.

• Tenancy by the Entirety or Community Property With Right of Survivorship-these are forms of property ownership that function like joint tenancy, in that the survivor owns the entire property at the death of the other tenant, but are only available to married couples.

• Beneficiary Designations-retirement accounts and life insurance policies have named beneficiaries. Upon the death of the account or policy owner, these beneficiaries are entitled to the assets in the account or the proceeds of the policy.

• Payable on Death Accounts/Transfer on Death Accounts-bank and brokerage accounts can have designated beneficiaries, too. The account owner can fill out forms to designate who should receive the account assets after their death.

Third, if a decedent had created a Living Trust to hold his or her largest assets, than that estate, too, won’t go through probate, unless the assets left outside of the trust add up to more than Utah’s small estate limit. That, in fact, is why that Living Trust was created, to avoid probate after the death of the trust’s Grantor. But for estates in Utah that exceed the small estate’s threshold, and for which there is either no Will, or a Will (but not a Living Trust), probate will be required before an estate can be transferred to the decedent’s heirs or beneficiaries. The general procedure required to settle an estate via probate in Utah is set out in a set of laws called the Uniform Probate Code, a set of probate procedures that has been adopted, with minor variations, in 15 states, including Utah. In Utah, under the UPC there are three kinds of probate proceedings: informal, unsupervised, and supervised formal.

Informal Probate In Utah County

Most probate proceedings in Utah are informal. You can use it when the heirs and beneficiaries are getting along, there are no creditor problems to resolve and you don’t expect any trouble. The process begins when you file an application with the probate court to serve as the “personal representative” of the estate. (This is what most people think of as the “executor”). Once your application is approved, you have legal authority to act for the estate. Usually you’ll get what’s called “Letters Testamentary” from the court.

Once you get the letters, you need to do these things:

• Send out formal notice to heirs, beneficiaries, and creditors that you know of
• Publish a notice in a local newspaper to alert other creditors
• Provide proof that you’ve mailed notices and published the notice
• Prepare an inventory and appraisal of the estate’s assets
• Keep all the property safe
• Distribute the property (when the estate closes)

Once the property’s been distributed, you close an informal proceeding by filing a “final accounting” with the court and a “closing statement” that says you’ve paid all the debts and taxes, distributed the property, and filed the accounting.

Unsupervised Formal Probate In Utah County

A formal probate, even an unsupervised one, is a court proceeding. That means that a judge must approve certain actions taken by the Personal Representative, such as selling estate property, or distributing assets, or paying an attorney. The purpose of involving a judge is to settle disputes between beneficiaries over the distribution of assets, the meaning of a Will, or the amounts due to certain creditors. The informal probate process won’t work if there are disputes, so that’s when the court gets involved.

Utah County Supervised Formal Probate

A supervised formal probate is one in which the court steps in to supervise the entire probate process. The court must approve the distribution of all property in such a proceeding.

When Is Probate Necessary In Utah County?

If the decedent owned assets (such as a home or other real property, bank accounts, or investments) titled solely in his or her name and without a valid beneficiary designation, probate is necessary to sell these assets or distribute them to the beneficiaries or heirs. With the decedent gone, only a personal representative has authority to sign the deed or other document transferring title to these assets. The one exception is when the estate is under $100,000, and therefore a small estate affidavit can be used to collect the decedent’s assets.

What property can be transferred without a probate?

Any of the decedent’s untitled property, such as personal and household possessions, valuables, or money, can be transferred without a probate. Doing so, however, may subject such property to the claims of the decedent’s creditors. In addition, several types of property pass outside of probate because they have a built-in transfer mechanism that does not involve probate. Such property includes:

• Jointly owned assets, such as a joint bank account or a home or other real estate owned as joint tenants with rights of survivorship
• POD (Pay on Death) bank accounts or TOD (Transfer on Death) stock brokerage accounts
• Insurance proceeds, including life insurance and accidental death benefits
• Death benefits of annuities, pension plans, and retirement accounts, including IRAs and 401(k)s
• Property held by a trustee of a living trust
When else should probate be considered?
Even if the decedent did not own titled property that requires a probate to be transferred, you should still consider a probate if:
• The decedent left unpaid debts, and you want to cut off potential claims of the decedent’s creditors.
• There is a dispute over who is entitled to the decedent’s property.
• The decedent had a last will, which you want to be able to enforce in court. A will that is not probated is not legally enforceable.
• The decedent’s estate needs to make an income tax or estate tax election. (Usually, only a personal representative can make this election.)
• The person dealing with the decedent’s property wants to be discharged from liability to the heirs and beneficiaries after the property is distributed.
Letters testamentary is a one-page document issued by the court stating that the personal representative has been duly appointed. If someone tells you they will not release an asset of the decedent without letters testamentary, it means they want to deal only with a personal representative.

What Are My Probate Options?

• Small Estate Affidavit: You may be able to avoid filing a probate by signing a small estate affidavit, which can be used to collect a decedent’s Utah property, except real estate, if the net value of the decedent’s property subject to probate does not exceed $100,000. A small estate affidavit is not legally available, however, until 30 days after the decedent’s death.

• Filing Options: If filing a Utah probate cannot be avoided, the most common filing options are: Informal probate, which is generally appropriate for simple, uncontested estates and usually costs less than a formal probate because no attorney travel or in-court time is required. In some circumstances, the decedent’s relatives may be required to sign written consents to this process. Formal probate, which is appropriate for estates in which the right of the person seeking appointment as personal representative is contested or in which some other dispute may arise. Formal probate requires an in-court hearing, which the attorney (but not the client) is required to attend.

• Ancillary probate for out-of-state decedents: This option can be used when (a) the decedent resided outside Utah at the time of death, (b) a probate has been filed there, and (c) the decedent owned Utah real estate or other property that needs to be sold.

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.

Do I need to apply for grant of probate?

In the vast majority of cases, you’ll need to apply for grant of probate before you can settle someone’s affairs. However, it may not be necessary if the deceased’s estate was worth less than £15,000, or if their assets were held jointly and are passing to a surviving spouse or civil partner.

What if probate is contested?

There are several ways which probate could be contested, which could prevent you from being given a grant of probate. In some cases, a beneficiary or relative of the deceased may enter a caveat, which can prevent or delay probate being granted. This might happen if two people are entitled to apply for probate, or if there are questions about the legitimacy of the will. Otherwise, it is a matter for the courts to resolve, so that probate can be granted to whichever party it deems appropriate.

Who is responsible for handling probate?

In most circumstances, the executor named in the will takes this job. If there isn’t any will, or the will fails to name an executor, the probate court names someone (called an administrator) to handle the process. Most often, the job goes to the closest capable relative or the person who inherits the bulk of the deceased person’s assets. If no formal probate proceeding is necessary, the court does not appoint an estate administrator. Instead, a close relative or friend serves as an informal estate representative. Normally, families and friends choose this person, and it is not uncommon for several people to share the responsibilities of paying debts, filing a final income tax return and distributing property to the people who are supposed to get it.

Should I plan to avoid probate?

Probate rarely benefits your beneficiaries, and it always costs them money and time. Probate makes sense only if your estate will have complicated problems, such as many debts that can’t easily be paid from the property you leave. Whether to spend your time and effort planning to avoid probate depends on a number of factors, most notably your age, your health, and your wealth. If you’re young and in good health, adopting a complex probate-avoidance plan now may mean you’ll have to re-do it as your life situation changes. And if you have very little property, you might not want to spend your time planning to avoid probate because your property may qualify for your state’s simplified probate procedure. Probate is the court-supervised process of authenticating a last will and testament if the deceased made one. It includes locating and determining the value of the person’s assets, paying their final bills and taxes, and distributing the remainder of the estate to their rightful beneficiaries.

When Is The Probate Process Required?

Each state has specific laws in place to determine what’s required to probate an estate. These laws are included in the estate’s “probate codes,” as well as laws for “intestate succession,” when someone dies without a will. In cases where there is no will, probate is still required to pay the decedent’s final bills and distribute their estate. The steps involved are generally very similar, regardless of whether a will exists—even though laws governing probate can vary by state.

Utah County Probate Lawyer Free Consultation

When you need legal help with Utah County Probate, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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Form 4473

Ascent Law St. George Utah Office

Ascent Law Ogden Utah Office

Source: https://www.ascentlawfirm.com/utah-county-probate/

Form 4473

The way to complete the Online 4473 form on the internet:
• To begin the blank, utilize the Fill & Sign Online button or tick the preview image of the form.
• The advanced tools of the editor will lead you through the editable PDF template.
• Enter your official identification and contact details.
• Use a check mark to indicate the answer where expected.
• Double check all the fillable fields to ensure complete precision.
• Use the Sign Tool to create and add your electronic signature to certify the 4473 form.
• Press Done after you fill out the blank.
• Now you can print, download, or share the form.
• Address the Support section or contact our Support crew in case you have got any questions.

By contacting Ascent Law LLC, we’re able help you with any necessary edits to 4473 form, make your customized digital signature in a few fast steps, and streamline your workflow without leaving your home or office.

Who needs a Form ATF 4473?

This form is to be filled out every single time a person buys a firearm from a Federal Firearms License dealer. This provision doesn’t apply to private sales when a person is buying a firearm from their relative or a friend. The ATF 4473 form, or Firearms Transaction Record, should be completed by both the seller and the buyer of the firearm.

What is Form ATF 4473 for?

The information a person provides will be used to determine whether a buyer is prohibited by law from receiving a firearm. Certain violations of the Gun Control Act, 18 U.S.C. are punishable by up to 10 years of incarceration and up to a $250,000 fine. Also, form 4473 is used to alert the buyer of certain restrictions on the receipt and possession of firearms. The seller of a firearm must determine the lawfulness of the transaction and maintain proper records. After the seller has completed the firearms transaction, they must complete this form and retain it for 20 years after the transaction. Please note that even petitions that have been denied should be kept in the seller’s personal records for the next five years.

Is Form ATF 4473 accompanied by other forms?

The buyer must provide a valid document that certifies their identity and place of residence. A buyer should use the document issued in the state where they are trying to purchase the firearm. This document must contain a photo and age information.

How do I fill out Form ATF 4473?

Mistakes made on the ATF 4473 form contribute to over eighty percent of all FFL dealers losing their licenses. It is essential that the form is filled out carefully. Abbreviations should not be used, and all of the “yes or no” questions should be answered without exceptions. You can fill out form 4473 online.

The following items must be completed by the buyer:
• Personal Information (including residence address, place of birth, SSN);
• Questionnaire about mental and physical health, as well as past violations of the law.
The following items must be completed by the seller:
• Types and identification of the firearm(s) to be transferred;
• Buyer’s documents verification;
• NICS information status;
• Description of all the firearms sold to the specific buyer (Manufacturer, importer, model, serial number, type, and caliber must be specified).

Where do I send Form ATF 4473?

Once completed and signed by both parties, the original form should be kept by the firearm dealer for their personal records. Use this online 4473 form to send it electronically.

Firearm Transfers

In 1993, Congress enacted the Handgun Violence Protection Act, commonly referred to as the “Brady Bill.” The Act requires background checks be conducted on individuals purchasing handguns from federally licensed firearms dealers. The responsibility for conducting these background checks rests with state and local government. In Utah, local law enforcement was ill prepared to assume this additional burden. However, through the efforts of the Utah Chiefs of Police Association, the Utah Sheriff’s Association and the Utah Department of Public Safety, legislation was introduced during the 1994 Session by Senator Lane Beattie and eleven co-sponsors requiring criminal background checks for purchase of firearms and identifying the Bureau of Criminal Identification (BCI) as the clearinghouse for conducting these checks. A number of advantages became apparent with BCI as a central contact point. One was the ability to implement an “instant check” system, which was possible because of the level of computer technology utilized at BCI. Another was the installation of a single telephone number for Federal Firearm Licensees (FFL) to access BCI for background checks no matter where they were in the state. Although the Brady Bill fails to address a number of issues surrounding firearms purchases, the impact of the legislation has been positive and useful as a tool for law enforcement. The process of conducting a criminal background check on firearms purchasers might have begun with the Gun Control Act of 1968. As a component of the Act, firearms purchasers fill out ATF Form 4473, which requires an individual to declare the fact that he or she has not been convicted of a felony in the country, along with other questions which when answered “yes” would preclude the purchase of a firearm. Prior to the Brady Bill, these forms were kept on file with the dealer and were reviewed some time after the sale of the firearm. Today, gun dealers and law enforcement can ensure that the purchaser is being truthful in answering the questions before he/she gets a firearm.

ATF Form 4473 – Firearms Transaction Record Revisions

• Form Title: Removed “Part I-Over-the-Counter”
• Warning Statement: Clarifies that the form is to be completed at the licensed premises unless the transaction qualifies under 18 U.S.C. 922(c).
Section A
• Question 1: Clarifies that transferee’s/buyers with a legal name that contains an initial only should record “IO” (including the quotation marks, i.e. John W. “IO” Smith). Also clarifies that transferee’s/buyer’s with a legal name that contains a suffix (e.g., Jr, Sr, II, III) should record the information with their last name.
• Question 2: Incorporated State of Residence information from former Question 13.
• Question 6: Changed “Gender” to “Sex”.
• Questions 10.a. and 10.b: Clarifies that both questions must be answered.
• Question 11.e: Added a warning statement regarding marijuana that has been legalized or decriminalized for medicinal or recreational purposes in the state where the transferee/buyer resides.
• Questions 12.a – 12.d and 13: (Formerly Questions 11.k – 12 and 14 – 15): Regrouped and revised the citizenship and immigration status questions to make them easier to follow.
• Transferee/Buyer Certification: Clarifies that the repetitive purchase of firearms for the purpose of resale for livelihood and profit without a Federal firearms license is violation of Federal law.
Section B
• Question 18.b (Formerly Question 20.b): Changed to “Supplemental Government Issued Documentation (if identification document does not show current residence address)”
• Question 18.c (Formerly Question 20.c): Changed to “Exception to the Non-immigrant Alien Prohibition: If the transferee/buyer answered “YES” to 12.d.2. the transferor/seller must record the type of documentation showing the exception to the prohibition and attach a copy to this ATF Form 4473.”

• Question 19.d (Formerly Question 21.d): Added a check box for “Overturned” transactions.
• Question 19.g (Added to Form): “Name of FFL Employee Completing NICS check. (Optional)”.
• Question 20 (Formerly Question 22): Clarifies that a NICS check is not required if the individual receiving the firearm was subject to a background check as part of the NFA approval process.
Section D
• Header: Added instruction that the firearm information must be recorded even if the firearm(s) is/are not transferred.
• Question 24 (Formerly Question 26): Changed to “Manufacturer and Importer (If any)” to reflect the language in 27 CFR 478.125(e).
• Question 24 – 28 (Formerly Question 26 – 30): Removed line 5 and added line numbers.
• Multiple Sale: Added “REMINDER : By the Close of Business” to the beginning of the sentence for clarification.
• Question 29 (Formerly Question 30.a): Clarifies that “zero” should be recorded if no firearm(s) is/are transferred.
• Question 30 (Formerly Question 30.b): Changed to a check box and added an instruction to record the line number(s) involved in the pawn redemption.
• Question 32 (Added to Form): A check box to indicate that the transaction is to facilitate a private party transfer.
• Question 33 (Formerly Questions 31 – 32): Combined the two questions.
• Transferor Certification: Revised language to certify that the form was completed at the licensed business premises unless the transaction meets the requirements of 18 U.S.C. 922(c) and the transaction complies with State or local laws that are applicable to the firearms business. Clarifies that unless the transaction has been denied or cancelled the transferor/seller certifies that it is his/her belief that it is not unlawful for him/her to sell, deliver, transport, or otherwise dispose of the firearm(s) listed on this form to the person identified in Section A.

Notices, Instructions, and Definitions

• Purpose of the Form: Paragraph 2 (Added to Form): “Generally, ATF Form 4473 must be completed at the licensed business premises when a firearm is transferred over-the-counter. Federal law, 18 U.S.C. 922(c), allows a licensed importer, manufacturer, or dealer to sell a firearm to a non-licensee who does not appear in person at the licensee’s business premises only if the transferee/buyer meets certain requirements. These requirements are set forth in section 922(c), 27 CFR 478.96(b), and ATF Procedure 2013-2.”
• Purpose of the Form – Over-the-Counter Transaction (Formerly Paragraph 4): Removed from form.
• Purpose of the Form – State Laws and Published Ordinances (Formerly Paragraph 5): Removed from form. Information incorporated into Paragraph 1.
• Purpose of the Form – Exportation of Firearms: Added “Warning: Any person who exports a firearm without proper authorization may be fined not more than $1,000,000 and/or imprisoned for not more than 20 years See 22 U.S.C. 2778(c).”
• Instruction for Section A: Formerly instructions for Question 1.
• Instruction for Question 2: Clarifies that a rural route (RR) may be accepted provided the transferee/buyer lives in a State or locality where it is considered a legal residence address. Also clarifies that the State of residence for members of the Armed Forces on active duty is the State in which his or her permanent duty station is located.
• Instruction for Question 9: Clarifies that the licensee should provide the UPIN when conducting background checks through the NICS or the State POC.
• Instruction for Questions 10.a. and 10.b: Added to form.
• Instruction for Question 11.a: Clarifies when a gift is considered “bona fide” and provides examples.
• Instruction for Questions 11.b – 12 (Formerly Questions 11.b – 11.l): Added a new paragraph between the 1st and 2nd paragraphs. “A member of the Armed Forces must answer “yes” to 11.b. or 11.c. if charged with an offense that was either referred to a General Court Martial, or at which the member was convicted. Discharged “under dishonourable conditions” means separation from the Armed Forces resulting from a dishonourable discharge or dismissal adjudged by a General Court-Martial. The term does not include any other discharge or separation from the Armed Forces.”
• Instruction for Question 11.b: Removed from form. Information incorporated into Questions 11.b – 12.
• EXCEPTION (Formerly EXCPTION to 11.c. and 11.i.): Clarifies that persons subject to this exception, or who receive relief from disabilities under 18 U.S.C. 925(c), should answer “no” to the applicable question.
• Instruction for Question 11.d: Added to form. Provides the definition of “Fugitive from Justice”.
• EXCEPTION (Formerly EXCEPTION to 11.f): Clarifies when a person is not prohibited under the NICS Improvement Amendments Act of 2007. Language revised and additional information added.
• Instruction for Question 12.d (Formerly Question 11.l.): Clarifies which aliens must answer “yes” to this question and provide the additional documentation required under Question 18.c.
• Former Instruction for Question 11.l: Paragraph 2 removed from form. Information incorporated into Question 12.a.-12.d.
• Former Instruction for Question 12: Removed from form. Information from Paragraph 1 incorporated into Question 18.c. Information from paragraph 2 incorporated into Questions 12.a.-12.d.
• Former Instruction for Question 13: Removed from form. Information incorporated into Question 2.
• New Instruction for Question 13: Added to form. Clarifies where U.S.-issued alien and admission numbers may be found. Also clarifies that U.S. citizens and U.S. nationals should leave the question left blank.
• Instruction for Question 16 (Formerly Question 18): Clarifies that frames and receivers cannot be transferred to anyone who is not a resident of the State where the transfer is to take place.
• Instruction for Question 17. (Formerly Question 19.): Added the definition of “Qualifying Gun Show or Event”.
• Instruction for Question 18a (Formerly Question 20.a): Clarifies that licensees may accept electronic PCS orders to establish residency.
• Instruction for Question 18.b. (Formerly Question 20.b.): Clarifies that a valid electronic document from a government website may be used as supplemental documentation provided it contains the transferee’s/buyer’s name and current residence address.
• Instruction for Question 18c. (Formerly Question 20.c.): Clarifies the exceptions to the non-immigrant alien prohibition and acceptable documentation.
• Instruction for Question 19 (Formerly Question(s) 21, 22, 23): Clarifies for purposes of this form, contacts to NICS include State agencies designated as points-of-contact (“or POCs”) to conduct NICS checks for the Federal Government. Provides instructions for completing the form when a transaction was denied and later overturned.
• Instruction for Questions 20 and 21 (Formerly EXCEPTIONS TO NICS CHECK): Clarifies that the exception includes transfers of National Firearms Act firearms to an individual who has undergone a background check during the NFA approval process. Also clarifies that a NICS check must be conducted if an NFA firearm has been approved for transfer to a trust, or to a legal entity such as a corporation, and no background check was conducted as part of the NFA approval process on the individual who will receive the firearm. Additionally clarifies that individuals who have undergone a background check during the NFA application process are listed on the approved NFA transfer form.
• Instruction for Question(s) 24-28 (Formerly Question(s) 26, 27, 28, 29 and 30): Clarifies that these blocks must be completed with the firearms information. Also clarifies that all firearms manufactured after 1968 by Federal firearms licensees should be marked with a serial number.
• Former Instruction for Question 32: Removed from form.
• New Instruction for Question 32: Added to form. Provides instructions for completing the form when the transaction is to facilitate a private party transfer.
• Former Instructions for Questions 33-35: Removed from form.

ATF Form 4473 Lawyer Free Consultation

When you need legal help with ATF forms in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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Complex Lender Liability Issues In Foreclosure

Ascent Law St. George Utah Office

Ascent Law Ogden Utah Office

Source: https://www.ascentlawfirm.com/form-4473/

Complex Lender Liability Issues In Foreclosure

Lender liability is an area of law that protects borrowers who have been wronged by lenders that failed to uphold their contractual obligations or treat them fairly in regard to loans and loan agreements. Whether borrowers have contractual relationships with lenders for small operational expansions or to fund multi-million dollar projects, financial service providers must treat them fairly. When they don’t, borrowers have a right to take action.

When determining whether it is time to pursue legal action against a lender, and involve an experienced attorney to guide you through the process, consider the following:

• Breach of contract: Lenders have long used civil lawsuits to sue borrowers who breached loan agreements. With the rise of lender liability, borrowers now also have a right to sue lenders who breach contractual obligations established in a loan agreement, such as failing to honor a loan commitment. By working with attorneys who have experience in this area of law, borrowers can position themselves to bring effective claims and seek recoveries of their damages.

• Fraudulent conduct: Lender liability may arise from the fraudulent conduct of lenders, such as fraudulently induced agreements, misrepresentation, predatory lending, or other violations of state or federal laws, including the False Claims Act. While fraud may result in criminal investigations and criminal penalties or civil sanctions, borrowers will need to take legal action in civil court to recover their own damages.

• Breach of fiduciary duty: Fiduciary duty refers to the obligation one party (the fiduciary) has to act in the best interest of another. Depending on the circumstances, lenders may argue to limit borrowers in bringing claims that the lender-borrower relationship was fiduciary in nature. However, borrowers can work with attorneys to explore their options in determining whether a fiduciary duty may have arisen in regard to carrying out loan agreement terms or was assumed by a lender due the scope of their control over a borrower.

• Bad faith: Lenders have an obligation to deal fairly with borrowers and handle loan agreements and relationships in good faith. There are many ways they may fail to do this that can be grounds for lender liability claims, including improper default or foreclosure notices, improperly enforcing personal guarantees, wrongfully interfering with third party contractual relationships or a borrower’s daily activities, wrongfully failing to honor or renew loans, and more.

Lawyer objective in lender liability cases is to ensure banks, financial services, and other lenders treat their customers and borrowers fairly. Because these financial institutions have considerable power and deep resources, working with an attorney becomes critical to leveling the playing field. As such, borrowers who have been wronged by lenders that violate a duty of fair dealing or good faith should take initiative to involve a lawyer as soon as they can. Doing so can make the difference in one’s legal journey, and can help ensure the correct steps are taken at every phase. Lender liability is a complex and evolving area of law, and it is not one all attorneys are equipped to handle.

Avoid Legal Liabilities In Bank Foreclosures

The involuntary sale of real estate properties by banks or other note holders can expose the latter entities to lender liability suits and/or liabilities or liens that pass with the property if either proper procedure is not followed. Avoid additional legal trouble by working with an experienced lender’s lawyer.

Our mortgage lender foreclosure team manages the entire process including:
• Ensuring the chain of paperwork is complete
• Establishing the note holder’s right to commence foreclosure action
• Providing notice prior to sale of foreclosed property
• Attending mediations as required by court rules
• Spotting potential liability issues that the lender could face upon assuming title to real estate owned properties
• Advising on title insurance issues and asserting title insurance claims when appropriate
• Obtaining required ratification orders
• Drafting audits
• Closing on the passage of title instruments
• Determining the costs and benefits of pursuing a deficiency judgment after a loss

Managing Lender-Owned Property

As the economic and real estate landscape evolves, so do the legal implications of handling foreclosed property and bank owned homes. For this reason, it is crucial to remain up to date on jurisdictional and statutory requirements such as whether “as-is” clauses in legal ads are effective in the jurisdiction or if an affirmative obligation to make disclosures concerning the real estate is required. Similarly, the Uniform Commercial Code carries its own strict set of statutory rules that must be complied with in order to pass good title to the property acquired by a lender in the event of a UCC foreclosure and avoid jeopardizing the ability to obtain a deficiency judgment, which rules are especially sophisticated when intangible property changes hands. In addition to overseeing the foreclosure process in court, Ascent Law LLC has bank lawyers can also help parties avoid liabilities associated with the sale of the foreclosed property.

Attorneys should consult with you on all relevant points including:
• the cost/benefit of promotional advertising
• appropriate auctioneers
• bidding strategy and terms of sale

Avoiding Foreclosure Auctions

In some cases, foreclosure may not be the best course of action for asset protection. With advice of legal counsel, a “deed in lieu of foreclosure” solution may be possible. Furthermore, lenders may opt instead to work with the property owner, bringing payments up to date, or working out other more cost effective alternatives. Whatever course of action is ultimately chosen, compliance with all applicable state and federal laws are mandatory. Working with an experienced mortgage lending law firm is the best way to ensure that the chosen course of action meets all legal requirements.

Lender Liability Defenses

Common types of lender liability defenses – An attorney represents financial institutions involved in commercial litigation over the following types of lender liability allegations:
• Commercial foreclosure issues
• Bank or mortgage fraud
• Predatory lending
• Misrepresentation
• Breach of contract
• Breach of fiduciary duty
• Bad faith claims
• Usury

Understanding Lender Liability Lawsuits

Lender liability lawsuits borrow from two areas of law: Tort claims and contract law. Contract claims involve a breach of contract or breach of a loan agreement. Tort claims allege that some financial injury occurred to the borrower due to:
• Fraud,
• Negligence,
• Breach of fiduciary duty,
• Fraudulent concealment, or
• Breach of the implied covenant of good faith.
In tort cases, a borrower typically alleges that the lender is guilty of some kind of malfeasance and that the initial contract is unenforceable. For example, if a borrower alleges that a lender agreed to extend the maturity date of a loan upon request and then refuses when the time comes, the borrower can bring a lender liability suit against the lender. Key to cases alleging negligence is the extent to which a lender owes a borrower a duty of care. A possible defense to a tort claim is that the lender owed the borrower no such duty and fulfilled their end of the loan contract that the borrower agreed to. However, this would not insulate a lender from a claim of fraud or fraudulent concealment. Even in cases where a duty of care can be established, the lender can argue that the borrower was also negligent. A lender can also blame a third party for contributing negligence to the borrower’s damages. Lastly, a suit against a lender must be brought within the statute of limitations.

Litigating Lender Liability Lawsuits

To avoid lender liability lawsuits in the first place, lenders should require that borrowers sign a forbearance agreement as a contingency to negotiating a settlement. The agreement should contain standard releases and waivers as well as an alternative dispute resolution requiring mediation prior arbitration or lawsuit. This ensures the borrower cannot file any action in a court of law against the lender. However, in certain cases, the borrower will still be entitled to a jury trial.

What To Do After A Lawsuit Has Been Filed

After the borrower has filed a lender liability suit, the lender is tasked with examining the merits of the case against them. The lender will need to:
• Be responsible for gathering facts and evidence,
• Place an internal hold and preserve all documents related to the borrower
• Investigate the terms of the agreement to determine whether or not an arbitration clause exists. If it does, the case can be moved out of the courts.
Mediation is not outside the realm of possibility, and the lender should also analyze whether or not the borrower can file for bankruptcy.

Responding To a Lender Liability Lawsuit

After the lender has determined that there are no grounds on which to compel arbitration, the first move in a lender liability suit is to find any grounds on which to dismiss the case. The lender may also want to move the case from state to federal court. The most aggressive response at the lender’s disposal is to file a cross-complaint or an anti-SLAPP motion.

Anti-SLAPP Motions In Lender Liability Lawsuits

SLAPP suits (known as strategic lawsuits against public participation) allege that the plaintiff in a suit is attempting to silence or intimidate the defendant by burdening them with the cost of a lawsuit. The defendant must prove that the lawsuit lacks even a modicum of merit. If a defendant files an anti-SLAPP motion, the court will determine, based on the merits of the case, whether or not the lawsuit should move forward. To determine whether or not a lawsuit has merit, the court will use a two-factor test. First, the court will decide whether the suit hinders the exercise of the defendant’s constitutional rights. If the court determines that the suit does impede the exercise of the defendant’s rights, the court will then determine whether or not the lawsuit has a probability of prevailing based on the merits of the claim. If the court believes the case has no merit, or is unlikely to prevail based on the evidence presented, the anti-SLAPP motion will be granted and the case will be dismissed. Anti-SLAPP motions are best employed if a defendant files a lawsuit in retaliation after a lender has exercised their rights to collect a debt.

Advantages of Borrower Representation

Due to the knowledge and insight into the strategy of a lender liability defense, a lawyer who represents lenders may have a slight advantage should he or she come to represent a borrower. In these cases, the attorney will need to determine what duties the lender owed to the borrower. He will also need to determine whether the lender broke or breached the trust or contract.

Bank and Lender Liability

Lender liability litigation typically includes claims for breach of fiduciary duty, promissory estoppels, breach of contract, or related statutory violations. The claims typically allege that the lender engaged in conduct that resulted in the failure of a project or undertaking by the borrower. Lender liability claims are oftentimes complex, both in terms of developing the facts and applying the relevant law. We have experience with these claims. Foreclosure litigation proceedings require a firm with a particular understanding of Utah foreclosure law, as well as experience with the types of complicated legal issues that these cases typically pose. Attorneys have experience in the various types of legal issues facing the mortgage lending and servicing industry. Attorneys possess the skills to manage complex foreclosures involving residential homes, condominium projects, office buildings, apartment complexes and other commercial properties. Real Property Litigation practice includes foreclosure on defaulted mortgage loans, deeds in lieu of foreclosure and the sale of REO properties for our mortgage lenders. In addition, the practice encompasses trial and appellate representation before federal and state courts. Attorneys counsel and defend clients on matters involving the Truth-in-Lending Act (TILA), the Fair Credit Reporting Act (along with state credit reporting acts), Fair Debt Collection Practices Act (FDCPA), Fair and Accurate Credit Transactions (FACTA), Real Estate Settlement Procedures Act (RESPA and the Consumer Protection Act Equal Credit Opportunity Act (ECOA). Working closely with Bankruptcy and Restructuring Department, representation of lenders and loan servicers extends to serving as counsel in connection with the purchase or sale of debt, restructuring, and the enforcement of the rights of lenders, including commercial mortgage foreclosure proceedings and bankruptcy lift-stay proceedings.

Foreclosure Attorney Free Consultation

When you need legal help with real estate law and foreclosures in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Ascent Law LLC

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What Are The Advantages Of Private Placement?

Ascent Law St. George Utah Office

Ascent Law Ogden Utah Office

Source: https://www.ascentlawfirm.com/complex-lender-liability-issues-in-foreclosure/

What Are The Advantages Of Private Placement?

The private placement definition is the process of raising capital directly from institutional investors. A company that does not have access to or does not wish to make use of public capital markets can issue stocks, bonds, or other financial instruments directly to institutional investors. Private placement occurs when a company makes an offering of securities to an individual or a small group of investors. Since such an offering does not qualify as a public sale of securities, it does not need to be registered with the Securities and Exchange Commission (SEC) and is exempt from the usual reporting requirements. Private placements are generally considered a cost-effective way for small businesses to raise capital without going public through an initial public offering (IPO). Institutional investors include the following:

• Mutual funds,
• Pension funds
• Insurance companies
• Large banks
You do not have to register private placement issuances with the Securities and Exchange Commission (SEC). In addition, you do not have to provide a detailed prospectus. The issuing company and the purchasing investors negotiates the terms and conditions are negotiated. You cannot trade private placement securities on public markets, but they can be traded privately among institutional investors after they have been issued by the issuing company. A private placement is in contrast to a public offering, which is issued in public capital markets, requires a detailed prospectus, must be registered with the SEC, and can be traded by the investing public in the secondary markets.

Advantages of Private Placement

Many business owners like the idea of raising cash via an initial public offering, but the expense and complexity of going public usually make it impractical for most small businesses. A simpler, less expensive alternative to raise capital and still maintain a high degree of control over the distribution of shares is a private placement. A private placement is similar to an IPO except that rather than being sold to the general public, ownership shares are sold to a small group of private investors, usually large banks, mutual funds, insurance companies, and pension funds. Also known as nonpublic offerings, most private placements do not have to be registered with the Securities and Exchange Commission.

In addition, businesses do not typically need to disclose detailed financial information, and the need for a prospectus is often waived. For these and other reasons, private placements are usually significantly less complicated and expensive than public offerings. Private placements offer small businesses a number of advantages over IPOs. Since private placements do not require the assistance of brokers or underwriters, they are considerably less expensive and time-consuming. In addition, private placements may be the only source of capital available to risky ventures or start-up firms. A private placement may also enable a small business owner to hand-pick investors with compatible goals and interests. Since the investors are likely to be sophisticated business people, it may be possible for the company to structure more complex and confidential transactions. If the investors are themselves entrepreneurs, they may be able to offer valuable assistance to the company’s management. Finally, unlike public stock offerings, private placements enable small businesses to maintain their private status.

The primary advantage of the private placement is that it bypasses the stringent regulatory requirements of a public offering. You have to conduct public offerings in accordance with SEC regulations; however, investors and the issuing company privately negotiate the private placements. Furthermore, they do not have to register with the SEC, do not require the issuing company to publicly disclose its financial statements, and ultimately avoid the scrutiny of the SEC. Another advantage of private placement is the reduced time of issuance and the reduced costs of issuance. Issuing securities publicly can be time-consuming and may require certain expenses. It forgoes the time and costs that come with a public offering. Also, because the investors and the issuing company privately negotiate private placements, they can be tailored to meet the financing needs of the company and the investing needs of the investor. This gives both parties a degree of flexibility. Small businesses face the constant challenge of raising affordable capital to fund business operations. Equity financing comes in a wide range of forms, including venture capital, an initial public offering, business loans, and private placement. Established companies may choose the route of an initial public offering to raise capital through selling shares of company stock. However, this strategy can be complex and costly, and it may not be suitable for smaller, less-established businesses. As an alternative to an initial public offering, businesses that want to offer shares to investors can complete a private placement investment. This strategy allows a company to sell shares of company stock to a select group of investors privately instead of the public. Private placement has advantages over other equity financing methods, including less burdensome regulatory requirements, reduced cost and time, and the ability to remain a private company.

Advantages Of Using Private Placements

There are several advantages to using private placements to raise finance for your business. They:

• allow you to choose your own investors – this increases the chances of having investors with similar objectives to you and means they may be able to provide business advice and assistance, as well as funding
• allow you to remain a private company, rather than having to go public to raise finance
• provide flexibility in the amount and type of funding – eg allowing a combination of bonds and equity capital, with amounts ranging from less than £100,000 to several million pounds
• allow you to make a return on the investment over a longer time period – as private placement investors will be prepared to be more patient than other investors, such as venture capitalists
• require less investment of both money and time than public share flotations
• provide a faster turnaround on raising finance than the venture capital markets or public placements

As a result, private placements are sometimes the only source of raising substantial capital for more risky ventures or new businesses.

Disadvantages Of Using Private Placements

There are also some disadvantages of using private placements to raise business finance. For example, there will be:

• a reduced market for the bonds or shares in your business, which may have a long-term effect on the value of the business as a whole
• a limited number of potential investors, who may not want to invest substantial amounts individually
• the need to place the bonds or shares at a substantial discount to compensate investors for their greater risk and longer-term returns
Additionally, although it isn’t a mandatory requirement, having a credit rating can be an advantage. However, this is time consuming and will be an added cost to the process.

Regulatory Requirements for Private Placement

When a company decides to issue shares of an initial public offering, the U.S. Securities and Exchange Commission requires the company to meet a lengthy list of requirements. Detailed financial reporting is necessary once an initial public offering is issued, and any shareholder must be able to access the company’s financial statements at any time. This information should provide enough disclosure to investors so they can make informed investment decisions. Private placements are offered to a small group of select investors instead of the public. So, companies employing this type of financing do not need to comply with the same reporting and disclosure regulations. Instead, private placement financing deals are exempt from SEC regulations under Regulation D. There is less concern from the SEC regarding participating investors’ level of investment knowledge because more sophisticated investors (such as pension funds, mutual fund companies, and insurance companies) purchase the majority of private placement shares.

Saved Cost and Time

Equity financing deals such as initial public offerings and venture capital often take time to configure and finalize. There are extensive vetting processes in place from the SEC and venture capitalist firms with which companies seeking this type of capital must comply before receiving funds. Completing all the necessary requirements can take up to a year, and the costs associated with doing so can be a burden to the business. The nature of a private placement makes the funding process much less time-consuming and far less costly for the receiving company. Because no securities registration is necessary, fewer legal fees are associated with this strategy compared to other financing options. Additionally, the smaller number of investors in the deal results in less negotiation before the company receives funding.

Private Means Private

The greatest benefit to a private placement is the company’s ability to remain a private company. The exemption under Regulation D allows companies to raise capital while keeping financial records private instead of disclosing information each quarter to the buying public. A business obtaining investment through private placement is also not required to give up a seat on the board of directors or a management position to the group of investors. Instead, control over business operations and financial management remains with the owner, unlike a venture capital deal.

Restrictions Affecting Private Placement

The SEC formerly placed many restrictions on private placement transactions. For example, such offerings could only be made to a limited number of investors, and the company was required to establish strict criteria for each investor to meet. Furthermore, the SEC required private placement of securities to be made only to “sophisticated” investors—those capable of evaluating the merits and understanding the risks associated with the investment. Finally, stock sold through private offerings could not be advertised to the public and could only be resold under certain circumstances. In 1992, however, the SEC eliminated many of these restrictions in order to make it easier for small companies to raise capital through private placements of securities. The rules now allow companies to promote their private placement offerings more broadly and to sell the stock to a greater number of buyers. It is also easier for investors to resell such securities. Although the SEC restrictions on private placements were relaxed, it is nonetheless important for small business owners to understand the various federal and state laws affecting such transactions and to take the appropriate procedural steps. It may be helpful to assemble a team of qualified legal and accounting professionals before attempting to undertake a private placement.

Many of the rules affecting private placements are covered under Section 4(2) of the federal securities law. This section provides an exemption for companies wishing to sell up to $5 million in securities to a small number of accredited investors. Companies conducting an offering under Section 4(2) cannot solicit investors publicly, and the majority of investors are expected to be either insiders (company management) or sophisticated outsiders with a preexisting relationship with the company (professionals, suppliers, customers, etc.). At a minimum, the companies are expected to provide potential investors with recent financial statements, a list of risk factors associated with the investment, and an invitation to inspect their facilities. In most respects, the preparation and disclosure requirements for offerings under Section 4(2) are similar to Regulation D filings. Regulation D—which was adopted in 1982 and has been revised several times since—consists of a set of rules numbered 501 through 508.

Rules 504, 505, and 506 describe three different types of exempt offerings and set forth guidelines covering the amount of stock that can be sold and the number and type of investors that are allowed under each one. Rule 504 covers the Small Corporate Offering Registration, or SCOR. SCOR gives an exemption to private companies that raise no more than $1 million in any 12-month period through the sale of stock. There are no restrictions on the number or types of investors, and the stock may be freely traded. The SCOR process is easy enough for a small business owner to complete with the assistance of a knowledgeable accountant and attorney. It is available in all states except Delaware, Florida, Hawaii, and Nebraska.

Rule 505 enables a small business to sell up to $5 million in stock during a 12-month period to an unlimited number of investors, provided that no more than 35 of them are non-accredited. To be accredited, an investor must have sufficient assets or income to make such an investment. According to the SEC rules, individual investors must have either $1 million in assets (other than their home and car) or $200,000 in net annual personal income, while institutions must hold $5 million in assets. Finally, Rule 506 allows a company to sell unlimited securities to an unlimited number of investors, provided that no more than 35 of them are non-accredited. Under Rule 506, investors must be sophisticated. In both of these options, the securities cannot be freely traded.

Private Placement Law Free Consultation

When you need legal help with a PPM in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

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Child’s Decision With Which Parents To Live

Ascent Law St. George Utah Office

Ascent Law Ogden Utah Office

Source: https://www.ascentlawfirm.com/what-are-the-advantages-of-private-placement/

Child’s Decision With Which Parents To Live

Is a legal term regarding guardianship which is used to describe the legal and practical relationship between a parent or guardian and a child in that person’s care? Child custody consists of legal custody, which is the right to make decisions about the child, and physical custody, which is the right and duty to house, provide and care for the child. Married parents normally have joint legal and physical custody of their children. Decisions about child custody typically arise in proceedings involving divorce, annulment, separation, adoption or parental death. In most jurisdictions child custody is determined in accordance with the best interests of the child standard.

LEGAL CUSTODY

Legal custody involves the division of rights between the parents to make important life decisions relating to their minor children. Such decisions may include choice of a child’s school, physician, medical treatments, orthodontic treatment, counseling, psychotherapy and religion.

Legal custody may be joint, in which case both parents share decision-making rights, or sole, in which case one parent has the rights to make key decisions without regard to the wishes of the other parent.

PHYSICAL CUSTODY

Physical custody establishes where a child lives and who decides day-to-day issues regarding the child. If a parent has physical custody of a child, that parent’s home will normally be the child’s legal residence (domicile). The times during which parents provide lodging and care for the child is defined by a court-ordered custody parenting schedule, also known as a parenting plan.

Can a Child Decide?

In some states, children above a certain age are allowed to determine for themselves which parent they would prefer to live with. But a preference isn’t the final word and it doesn’t give the child the actual decision. Child custody laws in Utah allow judges to ask children’s preferences with any children who seem old enough to make a reasonable decision. Children age 16 and older are given “considerable weight” in determining which parent they will live with, but no child’s decision is final. In all cases, the judge will use the child’s wishes as a factor in awarding child custody, but not the sole determinant. A law is currently being proposed in Utah that would give children as young as 14 the right to decide where they live, but it has not yet been passed. Keep an eye on recent political news developments to make sure you understand the current status of the law.

Overview of Custody Decisions in Utah

Utah courts decide child custody whenever parents can’t come to an agreement on their own. Judges must consider a number of factors when making custody decisions, including each of the following:
• the parents’ past conduct and moral standards
• which parent is most likely to act in the child’s best interests, including allowing the child frequent contact with the other parent
• the child’s relationship with each parent
• either parent’s history of domestic violence
• the child’s special needs, if any
• the distance between the parents’ residences
• the child’s preference, if the child is old enough, and
• Any other factor the court deems relevant to custody.
To read more information about custody decisions in Utah, see Child Custody in Utah: The Best Interests of the Child.
Best Interest of the Child
Utah family courts, like those in most states, determine child custody matters using the “best interests of the child.” The factors considered by the judge include:
• Past conduct and demonstrated moral standards of the parties
• Parent most likely to act in the best interest of the child, including allowing child frequent contact with non-custodial parent
• Bonding between each parent and the child
• If a parent has intentionally exposed the child to pornography or other harmful sexual-related materials
• Physical, psychological, and emotional needs of the child
• Both parent’s ability to reach shared decisions for the child and prioritize the child’s welfare
• If both parents participated in raising the child before the divorce
• The geographic proximity of the parents’ homes
• The child’s preferences
• Parents ability to protect child from their conflict
• Past and present ability to cooperate with each other in parenting and making decisions
• Any history of child abuse, domestic violence, or kidnapping
• Any other relevant factors
When parents can’t develop their own parenting schedule, the court can establish an appropriate schedule more or less than the statutory minimum parent-time based on the following best interest of the child factors:
• How parent-time would negative impact child’s physical health and emotional development
• Distance between child’s home and the non-custodial parent’s home
• Allegations of child abuse
• Lack of demonstrated parenting skills when there’s no safeguards to ensure child’s safety
• Financial inability of non-custodial parent to provide food and shelter during parent-time
• Child’s preference, if sufficiently mature
• Parent’s incarceration
• Shared interests of the child and non-custodial parent
• Non-custodial parent’s involvement in the child’s school, community, religious, or other related activities
• Non-custodial parent’s availability to care for the child when the custodial parent is working or has other obligations
• Chronic pattern of missing, canceling or denying regularly scheduled parenting time

• Parent-time schedule of siblings
• Lack of reasonable alternatives for nursing child
• Any other criteria the court feels is relevant to the best interests of the child

Joint Child Custody in Utah

A court in Utah will always consider joint physical or legal custody if both parties have completed a parenting plan and if joint custody serves the best interests of the child. In reaching a determination for joint custody, the court will consider the following factors:
• The geographical proximity between the parents
• Each parent’s ability to place the needs of the child first in reaching appropriate decisions
• Whether both parents have always participated in the child’s upbringing
• The child’s wishes, if the child is of an age to express a reasonable preference (generally age 12 or older)
• Any history of child abuse, spousal abuse or kidnapping
• Each parent’s maturity and ability to avoid conflict for the sake of the child
• The parents’ ability to cooperate with one another
• Any other factors deemed relevant by the court

Modification of Child Custody in Utah

Upon request by one parent, a Utah family court may modify or terminate a custody arrangement if:
• A modification will positively affect the best interests of the child
• There has been a material and substantial change of circumstances in the child or one of the parents’ lives
• Both parents have complied with the dispute resolution process, prior to taking the case to a court hearing
For more information about child custody in Utah, speak with a qualified attorney in Utah or refer to the Utah Code.

When Will the Court Consider a Child’s Preference?

Whether a Utah court will consider a child’s preference when deciding custody depends on the child’s age and maturity. Judges will give more weight to older children’s preferences (14 and older), and disregard the opinion of children under ten. Children between ten and 14 can have limited input on custody decisions. In one case, an 11-year old boy stated a preference to live with his father, but the judge specifically stated that an 11-year old shouldn’t have control over where he lives.

Judges will also look at the reasons a child prefers to live with one parent over the other. In one case, a father with custody of two boys moved them from their hometown and away from their school, friends, and other family members. The children wanted to live with their mother to be close to friends and family, and to continue going to the school they knew. The court found that these were valid reasons to want to live with their mother and gave the children’s preferences significant weight in the custody decision. On the other hand, if a child’s reasons for wanting to live one parent are immature, for example, because one parent is more lax with discipline or gives them lavish gifts, the judge won’t give the child’s preference much weight.

Even if a child has a strong custodial preference, it won’t be the controlling factor in a court’s decision. A judge can always overrule a child’s preference if it’s in the child’s best interest to live with the non-preferred parent.

Judges will also watch to see if parents have coached their children. In one case, a judge questioned the children and discovered that their mother had told them to lie about her boyfriend’s overnight visits in their home. The mother’s coaching was a major factor in the judge’s decision to transfer custody to the father.

There is specific language in Utah divorce law regarding when a court will give added weight to a child’s preference about where to live and what type of time to spend with each parent.

The language is found in Utah Code, section 30-3-10(1) (e):

The court may inquire of the children and take into consideration the children’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the children’s custody or parent-time otherwise. The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor.

So, there is a line at fourteen where a judge will give a kid’s opinion added weight, but it will never be the single controlling factor in the judge’s decision.

Of course, all this assumes the judge even considers a child’s preference. Like it says in the law, the judge doesn’t have to (“[t]he court may inquire”).

Do Children Have to Testify About Their Custodial Preferences in Court?
In Utah, children can’t testify in court unless there are extenuating circumstances, and there’s no other way to obtain their testimony. Instead, judges usually interview children in court chambers to determine their custodial preferences. Normally, the court will ask the parents for permission to interview a child, but parental consent isn’t necessary if the judge decides that an interview is the only way to figure out the child’s custodial desires.

Parents can’t attend the in-chambers interview. The judge may or may not allow the parent’s attorneys to be present. Often, a court reporter will record the interview.

Courts can determine a child’s preference in other ways as well. In one case, the judge deciding custody considered letters written by two boys to their mom, stating that they wanted to live with her. Courts may also allow custody evaluators or mental health professionals to testify about what children have told them regarding their custodial preferences.

If you have additional questions about the effect of children’s custodial preferences, contact a Utah family law attorney for help.

When a kid turns sixteen, he or she pretty much chooses where to live.
At that age, kids have cars, they have friends, and they don’t like being told what to do. All of that ads up to freedom, and with that freedom comes the de facto freedom to choose with which parent they want to spend their time.

Is there a Bottom Line to the Question: At What Age Can a Child Decide Which Parent to Live with in Utah?

If there’s a bottom line, it might be something like this: if a judge takes in to account a child’s preference about custody, it probably won’t be before that child is fourteen, unless there’s a guardian ad litem on the case; but, when the child hits sixteen, the child’s going to choose where to live, no matter what the judge says.

Utah Code § 30-3-10(1)(e)

This statute states that the child’s desires regarding a custody award may be taken into consideration by the court, but the child’s desire is not controlling.

If there is a current order, the child must follow it. The parent will be held in contempt if the child does not follow it.

Please note, there is a common argument that if a child over the age of 14 doesn’t want to exercise parent-time with “Parent A,” Parent B can’t be forced to move the child. It’s arguable that the child is too big or strong to force him or her to the other parent. This argument is inadequate. If that child wished to go to a friend’s house for drugs, most parents would find ways to stop it (whether as small as “grounding” the child, restricting privileges, or taking a cell phones, to the extremes of calling the police). The court expects each parent to take parent-time just as seriously.

For custody battles, the age of 14 is mentioned as the age at which a child’s desires may be given added weight, but even then, the child’s desires are not the controlling factor. The court takes many other factors into consideration, always with the best interests of the child in mind. These additional factors for consideration can be found in Utah Code §§ 30-3-10(1) (a) and U.C.A. 30-3-10.2.

Interestingly, a child’s preference at any age can be considered by the court, assuming the child is at a sufficient age to legitimately have a preference (i.e., a three-year-old’s “preference” is never considered, but a 12-year-old’s preference would be).

Just as a 14-year-old’s preference is explicitly given “added” weight, a 17-year-old’s preference would be given even more weight. The older a child gets, the more weight his/her preferences have. These preferences are never the sole factor (and never a reason to modify a custody arrangement alone).

Child Custody Attorney Free Consultation

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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How To Handle Harassment And Discrimination Complaints

Ascent Law St. George Utah Office

Ascent Law Ogden Utah Office

Source: https://www.ascentlawfirm.com/childs-decision-with-which-parents-to-live/

How To Handle Harassment And Discrimination Complaints

Employees have the right under the law to report discrimination or harassment to an employer. An employer should deal with harassment or discrimination complaints immediately. The failure of an employer to conduct an investigation can lead to much bigger problems, such as a lawsuit.

When an employee files a harassment or discrimination complaint, an employer should:
• Listen to the accuser
• Take the complaint seriously
• Not retaliate against the accuser
• Keep the complaint confidential
• Not delay in conducting an investigation
• Conduct a thorough investigation
• Document the investigation
• If necessary, hire a third party to conduct the investigation
• Discipline a guilty party
Listen to the Accuser
Take the time to listen to the accuser’s complaint. Even if a workplace seems free of conflict, this does not rule out the possibility of harassment or discrimination. Avoid making the following mistakes when listening to an employee’s complaint:
• Do not make assumptions about the truthfulness of the complaint;
• Do not reach unfounded conclusions;
• Do not fail to recognize whether a complaint involves illegal discrimination based on sex, race, national origin, disability, age, or religion;
• Do not decide not to investigate.

Take All Harassment Complaints Seriously

There is nothing worse for an employee than to make a complaint that is not taken seriously by an employer. Even if the employee has a history of making complaints, it is necessary to consider each one seriously. The failure to treat a compliant with sufficient seriousness may lead an employee to file a complaint with the Equal Employment Opportunity Commission (EEOC), the federal government agency charged with enforcing laws against discrimination in the workplace.

Don’t Retaliate

When an employee makes a complaint, avoid retaliatory actions. The EEOC enforces laws that prohibit employers from engaging in retaliatory measures — or adverse actions — against a person that makes a complaint of illegal discrimination or against a person that participates in a discrimination investigation or lawsuit. Adverse actions include firing, harassing, demoting, pay cuts, job reassignments, or other forms of retaliatory measures.

Keep All Harassment Complaints Confidential

The details surrounding a complaint should be kept as confidential as possible. Even though it may be impractical to keep the allegations completely confidential, attempt to keep as many details a secret as possible. This will prevent employees from taking sides or spreading rumors. Make sure the accuser is aware that the investigation will result in the disclosure of some information.

Delaying the investigation of a complaint could create several problems. A delay may indicate the employer’s failure to take the complaint seriously, could result in further harassment of the accuser, may allow the loss of relevant evidence, or may result in inadequate discipline of the accused.
Conduct a Thorough Investigation of Complaints
An investigation of a complaint should involve corroboration through interviews of the parties involved, witnesses, and through the identification of evidence. When interviewing the accuser and the accused, ask the following types of questions:
• What happened;
• Where did it occur;
• What was said;
• What witnesses were present;
Make sure to distinguish fact from opinion. Corroborate the stories of the accuser and the accused by interviewing witnesses present when the incident occurred and by gathering other types of evidence. Evidence can include emails, time cards, schedules, and notes from meetings.

Do An Investigation And Document It Carefully

It is important to keep a written record detailing the steps taken in an investigation. This could become essential evidence if the employee files a complaint with the EEOC. If the EEOC conducts its own investigation, it will request the documentation created by employer. Documentation can include a formal report of the employer’s findings or notes that provide details about interviews, discipline imposed on the accused, the reason for not imposing discipline, and conclusions.

Hire Ascent Law LLC to Do the Investigation

In some circumstances, it may be best to hire a third party, such as a lawyer, a law firm, or a consulting agency, that specializes in employee harassment and discrimination complaints. This may be appropriate in situations where the accusations have become public, when an employee lodges a complaint against a high-ranking superior, or when the charges are criminal in nature.

Imposed Discipline If Appropriate Or Terminate Employment

If an investigation turns up evidence that the accused did engage in the alleged discrimination or harassment, an employer should institute appropriate discipline. In some cases, a suspension, a warning, or counseling may be adequate. In other circumstances, when the actions of the accused involved threatening behavior or violence like rape, unwanted touching, or stalking, termination may be the most appropriate disciplinary action.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

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Source: https://www.ascentlawfirm.com/how-to-handle-harassment-and-discrimination-complaints/