Wednesday, 1 August 2018

Probate Basics

The legal process of transferring of property upon a person’s death is known as “probate.” Although probate customs and laws have changed over time, the purpose has remained much the same: people formalize their intentions as to the transfer of their property at the time of their death (typically in a will), their property is collected, certain debts are paid from the estate, and the property is distributed.

Probate Basics

Probate Administration

Today the probate process is a court-supervised process that is designed to sort out the transfer of a person’s property at death. Property subject to the probate process is that owned by a person at death, which does not pass to others by designation or ownership (i.e. life insurance policies and “payable on death” bank accounts). A common expression you may have heard is “probating a will.” This describes the process by which a person shows the court that the decedent (the person who died) followed all legal formalities in drafting his or her will. What is often taught about the probate process is how to avoid it.

The movement to avoid probate is primarily motivated by the desire to avoid probate fees. It is, in fact, quite possible to avoid the probate process completely. There are three primary ways to avoid probate and its protections: joint ownership with the right of survivorship, gifts, and revocable trusts. The probate system, however, exists for the protection of all the parties involved and the focus of this article is what occurs in probate.

What Happens in Probate?

The probate process may be contested or uncontested. Most contested issues generally arise in the probate process because a disgruntled heir is seeking a larger share of the decedent’s property than that he or she actually received. Arguments often raised include: the decedent may have been improperly influenced in making gifts, the decedent did not know what they were doing (insufficient mental capacity) at the time the will was executed, and the decedent did not follow the necessary legal formalities in drafting his or her will. The majority of probated estates, however, are uncontested. The basic process of probating an estate includes:

  • Collecting all probate property of the decedent;
  • Paying all debts, claims and taxes owed by the estate;
  • Collecting all rights to income, dividends, etc.;
  • Settling any disputes; and
  • Distributing or transferring the remaining property to the heirs.

Usually, the decedent names a person (executor) to take over the management of his or her affairs upon death. If the decedent fails to name an executor, the court will appoint a personal representative, or administrator, to settle the estate. The administrator will fulfill many of the same duties listed above.

Typically, people may leave property to any person they wish, and may make such designations in their will. However, in certain situations, depending on the relationship to the decedent and the laws of the state, the decedent’s wishes may have to be overridden by the court. For example, in most states, a spouse is entitled to a certain amount of property. Furthermore, creditors may have a claim on the property of the estate. Each jurisdiction usually prescribes how long an estate must be open to give creditors an adequate time frame in which to present claims to the estate. The more complex and sizable the estate, the longer and more time-consuming this process can be.

The probate process itself also carries with it a number of costs that are usually paid out of estate assets. These costs include:

  • Fees of the personal representative;
  • Attorneys’ fees; and
  • Court costs.

Why Do I Need a Will?

A will is simply a formal way of setting forth your wishes regarding how you would like your property distributed upon your death. You should consider a will whether you are single, married, have minor children, or own even a small amount of personal assets or property. In fact, every adult should have a will or other means to control the disposition of their assets. If you have not formalized your intentions, your estate may meet with unnecessary and costly litigation, adding to the grief experienced by your survivors. Avoiding the financial and emotional turmoil of will contests and other legal wrangling starts with choosing an experienced estate planning attorney.

Free Consultation with a Utah Estate Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free estate law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Tuesday, 31 July 2018

Child Support

Child support is mandatory in any divorce involving minor children. Petitioners with minor children must include an order for child support, even if the other parent is unemployed or cannot be found.

Child Support in Divorce

Most state laws have guidelines to determine child support payments. The payment amount is based on each parent’s income and the amount of time he or she spends with the children. The guidelines also provide for add-on amounts for the following expenses:

  • Child care
  • Health care and health insurance
  • Special educational or other needs
  • Travel-related visitation

Parents can increase or decrease the guideline amount if the following conditions are met:

  1. Both parents acknowledge they are fully informed of their rights under state law and the amount of child support is mutually agreed on,
  2. Both parents declare the agreed upon amount is in the children’s best interests and will adequately meet their needs, and
  3. For welfare recipients, the right to support has not been assigned to the county, and neither parent has a public assistance application pending.

Keep in mind that the judges presiding over divorces are the ultimate authority on child support decisions. They can deviate from the guidelines as they see fit.

Child support orders can be modified at any time. Special circumstances or income changes are just two reasons to revisit child support payments. The parties can agree in writing to the changed amount or can file a motion with the court. After the divorce is finalized, you should consult an attorney to change the amount.

Any order for child support payments typically includes an order for the assignment of wages. Child support payments usually begin when the judgment dissolving the marriage will be signed by the court, even though the parties will not legally be divorced until after the waiting period. If the judgment is delayed, you can file an application with the court to rush the payment of child support. You should seek an attorney if this is the case.

If a parent does not pay child support or is significantly late, he or she can be sued for contempt of court, have wages or tax refunds attached, or have his or her driver’s license blocked. These actions should be handled by an experienced attorney.

Tax Implications of a Divorce

Divorce can be challenging, particularly when it comes to tax time. Which spouse owes taxes? What forms and returns need to be filed? When do I need to file? How do I file? What is the best tax planning strategy for my divorce?

Tax Filing Status

A taxpayer will be considered unmarried at the end of a tax year if his/her spouse is legally separated from the taxpayer under divorce decree or separate maintenance contract at the close of the tax year.

A married taxpayer will be considered unmarried and eligible for head of household status if the taxpayer’s spouse was not a member of the household for the last six months of the year and the household is the home of a dependent child.

Liability on Joint Return

You may request relief from liability for tax, plus related penalties and interests for which you believe that your spouse (or former spouse) should be liable.

Innocent Spouse Relief is available if you: (1) filed a joint return and (2) are no longer married to (or are legally separated from) the spouse with whom the joint return was filed.

Dependency Exemptions 

In general, the dependency exemption for children of divorced taxpayers will go to the parent who has custody of the child for the greater part of the calendar year.

Alimony and Spousal Support 

In general, alimony and separate maintenance payments are income to the recipient and are deductible by the payer. Different rules apply to alimony that went into effect prior to 1985.

If you have specific questions about the tax implications of a divorce, you should speak to a licensed tax expert.

Free Consultation with Child Support Lawyer

If you have a question about child support or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

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

Investment in Foreign Real Estate Lawyer

The term “global marketplace” has never been more descriptive-particularly when it comes to real estate. There are numerous reasons why many of our clients invest in property overseas, including asset protection, portfolio diversification, retirement planning, privacy, and tax savings. Real estate is not only a very stable investment in many foreign countries, it is also harder for U.S. creditors to attach than domestic property.

If you own real estate abroad, the tax forms and reporting requirements are dependent on your operation of the property and any foreign entities that may be used to hold title of the property.

If you own the foreign real estate directly as an individual, the U.S. income tax rules with respect to that property are almost the same as if the property were located in the USA. On your U.S. tax return you would depreciate the property and follow the same rules with respect to income and expenses as you would on property in the United States. Foreign property taxes are deductible, as are travel costs connected with managing investment properties overseas. You can also exclude up to $250,000 ($500,000 if married) in capital gains if you sell an overseas property that served as your primary residence for at least two out of the last five years.

If your foreign real estate is a rental property, the rental income and expenses must be reported on your Form 1040 using schedule E. In this case, your foreign rental property is basically treated the same way as domestic property, except that depreciation must be made over 40 years instead of the usual 271/2.

There are, however, special rules regarding the reporting of rental income from overseas real estate. You don’t have to report rental income if your property was rented out for less than 14 days during the year, or if it was used for personal reasons for more than 14 days or 10% of the days it was rented out. You can deduct mortgage interest, property taxes, and travel costs, but there is no deduction for rental expenses and losses.

Generally speaking, if you own real estate outside of the U.S., you’re more than likely to have one or more bank accounts in that country whether to pay expenses or possibly collect rent. This must be disclosed on Form 1040, Schedule B. If the foreign bank account(s) contains $10,000 or more on any given day of the calendar year you will need to file an FBAR (Form 114 Report of Foreign Bank Accounts) with the Financial Crimes Enforcement Network [FINCEN] annually before July 1. Failure to do so risks penalties beginning at $10,000 and potential criminal indictment.

If the property is held by a foreign corporation with 10% or more U.S. ownership, a foreign partnership or LLC, or a foreign trust or estate you will need to report that ownership on one of a number of IRS forms including Form 5471 (ownership inside a foreign corporation), and Form 8938 – Statement of Specified Foreign Financial Assets. These new filling requirements are a result of FATCA laws, with penalties beginning at $10,000 per incident. It’s important to note the reporting thresholds for FORM 8938. If your total foreign assets do not exceed those limits, you may not need to file for that year. In short, your individual circumstances will determine which reporting requirements and tax forms may be required.

Ownership in foreign real estate can be an important component of your overall investment strategy. If you already own property abroad or you are planning to invest in overseas property, it is imperative that you understand how the laws and regulations in other countries affect your U.S. taxes.

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!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Monday, 30 July 2018

Brachial Plexus Injury Lawyer in Utah

Ever visited the doctor for a routine checkup and walked out of the office with a diagnosis for something that you can’t even properly pronounce? More than likely, something similar has occurred throughout the course of your life. Speaking of puzzling medical terms and scientific names for illnesses, as of late, many people have asked themselves the following: what on earth is brachial plexus injury (BPI)?

Brachial Plexus Injury Lawyer in Utah

Many people in South Jordan and throughout Utah don’t really understand what BPI is, even though it’s a rather common injury. Johns Hopkins Medicine gives a clear definition of BPI: “An umbrella term for a variety of conditions that may impair function of the brachial plexus nerve network.”

The majority of these injuries are caused by trauma, like severe auto accidents. In the human body, the brachial plexus is basically a cluster of nerves in the neck region of the spinal cord that controls the shoulders, arms and hands. This group administers motions in the arms, hands and wrists. Without these nerves, we wouldn’t be able to do even the simplest of tasks, like typing on a keyboard or lifting weights at the gym.

When someone in West Jordan or elsewhere in Utah has a BPI, he or she will likely experience a loss of sensation in the affected areas. The symptoms and severity varies in everyone, because each and every body handles pain differently. Sometimes, feeling and sensation will return after a few days; however, when involved in severe auto accidents, some people may have permanent nerve damage, meaning they may never be able to control arm or wrist movement again.

Of course, as with most injuries, there are different types and degrees of BPIs. Auto accidents commonly result in BPIs. If you or someone you love in Midvale Utah or other parts of Utah has had a traumatic experience, be sure to contact one of our personal injury lawyers to receive the professional guidance and answers that are needed.

HOW TO AVOID BECOMING A DOG BITE VICTIM

Every year, over 4.5 million people in the United States are bitten by dogs. One in every five of these people require medical attention. With so many dog bites occurring each year, how can you protect yourself from becoming bitten? Even the most seemingly-friendly canines can act unpredictably at times, inflicting both pain and injury.

Every dog bite lawyer from Salt lake City to the Midwest has heard stories of relatively mellow canines reacting poorly in certain situations. Here’s how you can become more aware of potentially hazardous situations involving canines and avoid being bitten.

Avoid Sudden, Unpredictable Movements

A dog’s reaction to sudden, unpredictable movements may differ slightly depending on the breed. Moving in a quick, frightening and/or erratic way can trigger a canine’s defense mechanism, causing it to act impulsively — and in some cases, bite either you or the person closest to it. Whether you need to contact a dog bite lawyer in St. George or on the East Coast, remember that you aren’t responsible for the actions of another person’s animal.

You can prevent such an incident by avoiding quick movements around a canine that you’re not familiar with. In the event that you are bitten, it’s critical to remember that the fault still lies with the owner of the dog.

Recognize When a Dog Becomes Territorial

Dogs are exceptionally territorial creatures; if they believe that someone or something is invading their space, they’ll be more likely to attack. If you intentionally or unintentionally invade a dog’s space without first familiarizing yourself with the animal, then you put yourself at heightened risk for being bitten.

You can avoid this situation by approaching an unknown canine cautiously and by becoming acutely aware of its personal space. Every dog bite lawyer from Sandy Utah to Bountiful Utah will warn of the dangers involved with impeding on a canine’s personal space. Becoming significantly aware of the territorial nature of most canines can help you avoid a nasty bite or attack.

Free Initial Consultation with a Brachial Plexus Injury Lawyer in Utah

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.

Michael R. Anderson, JD

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

Understanding Joint Legal Custody

In a divorce involving children, custody case, or paternity action; parenting issues can stir a bitter custody battle. Our firm has litigated and won thousands of custody matters for our clients, and we know the importance of gaining, exercising and understanding parenting rights.

In Utah, two fundamental types of custody must be agreed upon by parents or decided by the court before a divorce can be granted. Those custody types are:

  • Physical custody

  • How will residential care of any children be divided?  Physical custody refers to the provision of shelter and daily care and services for minor children.

  • Legal custody

  • Major legal decisions include those involving health, education and other serious parenting decisions. Legal custody gives you the right to participate in decisions that have a major impact on your children.

In most cases, Utah courts prefer to award joint physical and legal custody. Unless there is a compelling reason not to award joint custody,  several types of joint physical and legal custody are possible.

With legal custody, most couples simply share the decision-making process as issues arise. For couples unable to work together, the court will sometimes grant decision-making authority to one parent for a certain issue such as education, while the other will retain authority for another issue, such as healthcare. In all cases, children benefit when parents work together on their behalf.

If you have joint legal custody and become aware that major decisions are being made outside your knowledge, you need to speak with your co-parent and then with an attorney. Despite joint legal custody, some parents willfully ignore the shared rights of the other parent. Such behavior could lead to correction by a judge through a contempt action or even eventual loss of legal custody for the noncompliant parent.

Items You Must Include in Your Child Custody Arrangement

Every child custody agreement will have its own unique elements. But in general, there are certain items you will absolutely want to include in your own agreement. Here are a few of those most essential elements:

  • Custody descriptors. You need to clearly outline who has both physical and legal custody of the children. Physical custody refers to who is the physical guardian, while legal custody refers to a parent’s ability to make decisions on the child’s behalf. There are different arrangements. Sole custody gives one parent both legal and physical custody, while joint custody gives both parents a shared amount of legal and physical custody.
  • Who makes certain decisions. If you want one parent to be in charge of specific decisions regarding the upbringing of the child, such as medical care, education, religion and extracurricular activities, it should be included in your custody agreement.
  • How you’ll divide costs. Raising a child is expensive. Even when taking child support into account, both parents will likely need to split certain costs. You should have a clear outline of who is in charge for which expenses — or how much of a particular expense. For example, who pays for medication? Who pays for school costs? Which parent claims the child as a dependent on tax returns?
  • When visitation will occur. If one parent has sole physical custody of the child, you should have a thorough, clear visitation schedule implemented in your child custody arrangement so there can be no debate later on about the non-custodial parent’s rights. This plan should address holidays, frequency of visitations and any other issues that could arise between you and your spouse.
  • Future plans. You need to leave some room for flexibility to either amend the agreement down the road or to cover how you will address general issues not currently covered by your agreement.

Free Consultation with Child Custody Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Sunday, 29 July 2018

Marijuana Is Not Legal In Utah

Lawyers in Utah already know that legally smoking marijuana is a big deal nowadays, especially in Colorado, where it was made legal by the state’s Amendment 64. Back home in Utah, imbibing and driving is still heavily prosecuted. And if you’re thinking about making a quick trip to our neighboring state for a “good time” without legal repercussions back home, you might want to think twice. Consuming marijuana and operating a vehicle (even weeks afterward and even if the substance was legally consumed) could result in a class B misdemeanor and automatic suspension of a driver’s license.

Marijuana Is Not Legal In Utah

Colorado borders Utah, and many residents are only a hop, skip and a jump away – though Salt Lake City to Colorado Springs is still an eight hour drive in good (summer) weather. Media coverage of Utah’s next door neighbor breaking out the pot has been incessant, and it’s probably because Colorado is the first place in the world – yes, the entire world – to legally sell marijuana to anyone over the age of 21 in fully licensed retail stores. So yeah, kind of a big deal. And while much of Utah’s current news reporting is focused on the same-sex marriage debate, there are still many Utahn eyes watching Colorado, not to mention its interstate highways.

Under a Utah law known informally as the “metabolite statute,” drivers on Utah roads can’t legally operate a vehicle with any amount of a controlled substance in their system. As a Criminal Lawyer, I know that THC can be detected in the bloodstream and urine for up to several weeks after initial ingestion, so residents who mosey next door to partake in a pot party may find themselves returning home to Utah to a less than welcoming environment, even if they aren’t high. The interesting thing (and apparent legal controversy) about the metabolite statute is that according to several state toxicology officials, the THC metabolite that can be detected days and weeks after ingestion “has no pharmacological activity.” Translation: the driver who smoked out a month ago doesn’t actually have impaired driving from marijuana. But Utah doesn’t care. The DUI charge is the same as if a driver had stepped out of a bar, swimming in booze. Some Utah lawyers recognize the illogic inherent in this argument; however, officials are interested in protecting public safety, and no state official -elected or otherwise – wants to appear soft when it comes to safety on Utah roadways.

Details of the statute and its room for prosecution and defense are complicated. The state code provides three defenses:

  1. The marijuana was involuntarily ingested.
  2. It was prescribed.
  3. It was “otherwise legally ingested.”

However, this poses problematic for consumers under the amendment passed in Colorado in November. Amendment 64 is tricky. On one hand, it legalizes marijuana while on the other reiterates that federal law recognizes marijuana as an illegal drug. Tricky indeed. And the latter provides, most likely, the strongest argument for Utah prosecutors: who, really, can legally ingest marijuana (even next door) when the big guys on Capitol Hill still say it’s not okay.  Matthew Piper, writer of the Salt Lake Tribune article, regrets that the Utah Attorney General’s Office didn’t respond to questions of clarification on the federal law, but Utah lawyers will have plenty to deal with either way. It will also be interesting to see how the public responds to the question of impaired driving, especially as Colorado establishes its own impairment studies and policy changes.

Get Your Free Consultation with a Criminal Defense Attorney

If you need help fighting a marijuana change against you, please give our office a call for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

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

Adoption Legal Help

Although adoption connects prospective parents with children in need of good homes, and is thus a worthy and vital service, there are often many legal hurdles to overcome before an adoption can take place. For example, prospective parents must prove their fitness for being parents and may have to ask friends and family for letters of recommendation. Additionally, adoption requires certain legal filings and procedures. Some, but not all, of these steps in the adoption process may require the help of an attorney or other legal professional. The following information and tools to help you locate, hire, and work with an attorney for assistance with an adoption matter.

Are you Eligible to Adopt?

One of the useful tools available here is a questionnaire intended to help determine your eligibility to adopt. Laws relating to adoption vary from state to state and this document will not establish with total certainty that you will be found eligible to adopt, but it does touch upon common issues that apply to guidelines generally applicable. It can be viewed as a way to detect potential issues early in the process.

In addition to asking questions that relate to general criteria to adopt there is discussion of the reason for the question being asked and some general principals relating to the issue at hand. By understanding the issues presented here you can better prepare yourself to address potential problems before they interfere with an adoption. If you determine that there is a potential issue there are links to articles relating to eligibility for adoption that can help you learn more about restrictions and how they can be overcome.

It is worth noting that this questionnaire relates to legal eligibility, but agencies, countries, or birth parents may require information about religion, fertility status, educational background, and other aspects of your life and use your responses to determine whether they are willing to permit or participate in an adoption.

Documents you Need

When you are meeting with an attorney to discuss the possibility of adoption there are certain documents that you should bring to your appointment to help the attorney begin to understand the advantages and challenges they may face representing you.

Some documents that are commonly helpful in this situation include certified copies or originals of the adoptive parent(s) birth certificate, marriage and divorce certificates (if applicable), a doctor’s examination and statement from the health insurance company that will cover the adopted child, criminal background check release forms and reports, local police department letters of good standing, passports, and any relevant immigration documentation. Other important items may include letters of reference or a home study.

Adoption Questionnaire

Among the information and materials presented here to help you prepare for an adoption there is a form intended to facilitate the establishment of a relationship with your attorney. The form asks for most of the basic information needed by an attorney to help determine your intentions and eligibility.

Preparing this information in an orderly and concise fashion in advance of your meeting will help you and the attorney maximize your benefit from a consultation or initial meeting. Less time looking for information or filling out paperwork means more time asking and answering important questions that help establish the basis of your working relationship.

Free Consultation with Adoption Lawyer in Utah

If you have a question about an adoption or if you need a lawyer in Utah, please call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

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