#for the purpose of property-ownership and child custody determination

[johnny1note]

I don't think we bullied libertarians hard enough for the whole "I think the government should get out of marriage entirely" schtick ca. 2012

[datamodel-of-disaster]

Childhood as Serfdom

An analysis

(Or: I'm on my soapbox, enjoy/suffer the consequences)

I was gonna write a funny post about how being a child is kinda like being a medieval serf, but then I thought about it longer and actually it's not funny. So, be prepared.

People have a lot of resistance to the idea that children, legally and societally, are serfs. There is a visceral unwillingness to put together and see what the whole of laws and customs concerning minor persons actually amounts to, and I actually think that unwillingness is at the root of what makes so much "think of the children/protect the children" right wing rhetoric so effective.

In English, the word "serf" mostly brings to mind medieval peasants, but in Dutch it touches a little more on what it actually is. Lijfeigene, literally translated, "body-owned-one". A serf is not the same as a slave -he is not considered a tradeable good or personal possession, and cannot be murdered or raped with impunity. He can have property and this property is protected by the same laws that protect the possessions of free people. But similarly to a slave, a serf does not have self-determination over his own body, freedom of movement, or ownership of the fruits of his own labour. He is not legally considered an individual person so much as a part of an estate, a condition we'd still commonly describe as "unfree". In the medieval system of serfdom (at least in England) a serf had to pay for a "license" from his Lord to do just about anything, from marrying to repairing a fence. So we can say that medieval serfdom was a system where fundamental freedoms were paywalled rather than fundamentally denied, as in the case of slavery. There were ways to receive permission to do things, but the necessity of receiving (and, in the medieval use case, paying for) this permission was a fundamental aspect of the system.

Now.

Let's entertain this thought. Does childhood meet the criteria of serfdom?

Well.

Children have no freedom of movement.

You perhaps wouldn't look at the permission slip to go on a school trip as something in the same vein as a medieval serf's license to visit a cousin on a neighbouring estate, yet that is exactly what it is. "Where are your parents?", local police in suburbia giving a child a ride home if they get spotted walking alone, "No unaccompanied minors", parents being sued for leaving their kids home alone, the entire concept of "familial kidnapping" and the fact that custody is a matter of legal regulation when a couple divorces. Children's lack of freedom of movement is everywhere if you care to look.

When people get annoyed at "loitering" teenagers, they are contesting children's right to be in public spaces, unaccompanied and without specific purpose or permission.

When people judge parents for their children being a nuisance, they are explicitly acknowledging that the child's movements could be curtailed and controlled by the parents -indeed, they are stating such control to be the correct course of action.

Explicitly and implicitly, our society accepts and supports children not having natural freedom of movement, and places -for better or worse- the responsibility for their movement on the parents. In this, the parents are the Lord of the estate, and the child is a serf attached to this estate. Additionally, as the entire concept of custody shows, we have in fact codified the rights of parents to continued access to any children that were part of an estate that was legally split between them in a divorce.

Children do not have right of self-determination.

Children have precious little protection to their bodily integrity. From birth, they can be circumcised, have their genitals surgically "corrected" if they look too ambiguous to the eye of parents and doctors, have their ears pierced, be baptised or initiated in a religion, have cosmetic surgery performed on them, etcetera.

I am specifically not listing life-saving medical measures here, because yes -children are different from mature adults, and especially babies have no capacity to self-determine in matters of their own survival. We will address this matter of capacity later on. For the purpose of this exercise however, it is worth pointing out all the non-life-saving, non-essential actions that would be considered highly invasive if performed on an adult, yet can be freely performed on the body of a child with zero input or consent from the child itself.

Compared to that, all the less invasive ways in which children are typically allowed little to no self-determination, from choosing their own clothes to eating when and what they want to, seem less impactful. But they add up, and you should keep them in mind.

(And even in the context of life-saving measures; there are some hotly contested legal cases of parents wanting to deny life-saving or life-improving medical intervention to their children for religious reasons, that illustrate just how important our society considers the rights of the parent over a child's body. If these rights weren't considered almost inviolable, there would be no contest between them and a person's survival.)

When we look at what things children can and cannot do legally, the underlying assumption is always that children are in a form of diminished capacity with regards to self-determination, and must therefore be protected from decisions made in this diminished capacity. Hence we have concepts like statutory rape, child labour prohibitions, and laws that protect children from, for example, signing contracts. Most people will agree that children are not adults and do not have the same capacity to make fully informed decisions for themselves. So, it makes sense that there are laws that protect them from being taken advantage of.

In the context of childhood as serfdom it is more interesting to consider the conditions under which these protections can be circumvented.

Let me elaborate:

In the US, parents can take out loans and credit cards in the name of their child -while a child cannot legally sign a contract, a parent can essentially sign for them and saddle a child with debt long before they can even comprehend what that is. In some circles it even gets recommended to take out a credit card in a child’s name and diligently keep a good credit score with it so they can have a better financial start when turning 18.

In 37 states of the US, child marriage is legal if a parental waiver is provided, and in 20 of them there is no minimum age for marriage at all under these conditions. (Look, there it is again, the serf's license!) So while legally a child cannot consent to be married or sign a valid marriage license, a parent can consent for them. For additional context here; the "statutory rape exception" that allowed underage sexual activity if the participants were married was only amended in federal law in 2022, and similar exceptions are to this day still encoded in US military law.

But…Child labour is still actually prohibited, right? Right?

Well… no. Not really.

Children in the US can be employed in non-agricultural jobs from the age of 14 with parental permission, whereas for agricultural jobs the allowed age of employment varies between states and isn't federally determined, but can be as young as 10. Additionally, minors of any age may be employed by their parents at any time in any occupation on a farm owned or operated by his or her parent(s).

There are technically laws about how many hours and in what type of labour children can be employed, yet in practice there are a lot of potential exceptions, and these laws are (unfortunately) continually under attack. Which leads to my next point…

Children do not own the fruits of their own labour

Children can own property, in the legal sense. They can "hold title", as one says, of most items (except motor vehicles in some states in the US -remember this in connection to freedom of movement!), be the beneficiary of an inheritance, and receive gifts.

However.

Holding title does not mean they have the usufruct of the property, nor that they cannot be denied access or usage of it by their parent. More importantly…

In the US, a child does not have an automatic right to their own wages. Let me share you a couple excerpts of law:

Banks v. Conant, 14 Allen 497:

Whatever therefore an infant acquires which does not come to him as a compensation for services rendered, belongs absolutely to him, and his father cannot interpose any claim to it, either as against the child, or as against third persons who claim title or possession from or under the infant.

Cyclopedia of Law and Procedure:

As a general rule any property acquired by the child in any way except by its own labor or services belongs to the child, and not to the parent

Wheeler v. R. Co., 31 Kan. 640, 3 P. 297, 300:

As a matter of law a minor may own property the same as any other person. He may obtain it by inheritance, by gift, or by purchase; and there is nothing in the law that would prevent even a father from giving property to his minor child. A father may also so emancipate his minor child as to entitle him to receive his own wages.

So…

A child can be employed, with an employment contract signed by their parents, and any wages they earn automatically belong to their parents.

That is literally what it means to be a serf.

I am not saying that all children are exploited in the manners I described above. But it is an illustration of the culture we live in, that all these types of exploitation are in fact legal.

Almost any attempt to legally protect children in their developmental condition of diminished capacity leaves loopholes for parental exemptions. The right of a parent to make decisions about a child's life, body and movement is entrenched in our society and legal system.

Which leads to… "protect the children".

What we talk about when we talk about protecting the children

Endeavours to "protect children" come in multiple shapes.

There are the initiatives to improve the legal framework that protects the rights of children - such as the Californian law that forces parents of child actors to keep the child's wages in trust rather than automatically own them, or the amendments that removed the marital exception from the statutory rape law. They can be characterized as movements to chip away at the serfdom status of children, while still respecting the fact that children are in fact a vulnerable class of people who require protection.

Then, there are initiatives that aim to protect the rights of parents over children. Lately, many of those are essentially extensions of children's current serfdom status into the plane of the immaterial. Think, laws that aim to limit children's freedom of movement in cyberspace as well as public space. Laws that dictate what information children are allowed free access to. Laws that limit children's privacy from their parents, under the guise of protecting their privacy from strangers.

This latter category will often wrap itself in a layer of fearmongery anecdotes and moral panic language in order to gain support and justify exerting additional power over children. The reason this works is that to have a meaningful defence against it, someone has to consciously acknowledge the serfdom status of children, and consider it harmful.

Now, most parents aren't actively exploiting their child's labour, racking up debt in their name, or arranging their underage marriage. But almost all parents have exerted power over their child's freedom of movement, denied them privacy, taken their possessions as punishment or simply out of convenience, and forced their will on them in a million unimportant ways where letting the child self-determine would not have had any real impact on their wellbeing or safety. Acknowledging the serfdom status of children means acknowledging all of that as a kind of authoritarian lordship rather than benevolent custody.

Clearly, people have resistance to seeing themselves as -even mildly- villainous in any story, and the urge to defend one's parenting decisions is a strong one. As such, it's easy for someone to defensively think, "This power I have over my children is good, actually. I should have more of it, for their own good." And that is, at its heart, a fascist idea.

We will never dismantle fascist rhetoric as long as we remain comfortable with categories of people who are unfree for our convenience. And that doesn't just include children -I'd posit that it actually starts with children.

(Have mercy on me, I wrote this at work. Will add sources/bibliography later.)

[seplbusinessmenservicesllc]

Marriage Certificate Attestation

In an increasingly interconnected world where people are traversing borders for education, employment, and settlement, the importance of legal documentation cannot be overstated. Among the crucial documents required for international recognition, a marriage certificate holds significant weight, especially for couples intending to relocate or pursue opportunities abroad. However, merely possessing a marriage certificate may not suffice in many instances; it often needs to be attested to validate its authenticity and legality. This process, known as marriage certificate attestation, plays a pivotal role in enabling individuals to avail themselves of various privileges and rights in foreign countries.

Understanding Marriage Certificate Attestation:

Marriage certificate attestation is a bureaucratic procedure that involves validating the authenticity of a marriage certificate by official authorities. This process typically requires several stages of authentication by designated government departments, embassies, and consulates. The primary purpose of marriage certificate attestation is to ensure that the document holds legal validity and can be accepted as genuine by foreign governments, institutions, and organizations.

The Importance of Marriage Certificate Attestation:

The significance of marriage certificate attestation becomes evident in various scenarios:

Legal Recognition: In many countries, a marriage certificate must undergo attestation to be legally recognized. This is particularly crucial for couples planning to settle in a foreign country or seeking spousal benefits and rights.

Visa and Immigration Procedures: For couples navigating visa and immigration procedures, attested marriage certificates are often mandatory documentation. Immigration authorities use attested marriage certificates to verify the marital status of applicants and determine eligibility for certain visas or residency permits.

Employment Opportunities: When spouses relocate for employment opportunities, especially in countries with stringent documentation requirements, attested marriage certificates may be necessary for spousal visa sponsorship or to avail of dependent benefits offered by employers.

Social Security Benefits: In some jurisdictions, spousal benefits, such as health insurance coverage or pension plans, are contingent upon the presentation of attested marriage certificates. This ensures that only legally recognized marriages are entitled to such benefits.

Asset and Property Rights: Attested marriage certificates may be required to establish joint ownership of assets, properties, or financial accounts in foreign countries. This is crucial for couples intending to invest or purchase property abroad.

Child Custody and Adoption: In cases involving international child custody disputes or adoption proceedings, attested marriage certificates serve as evidence of the legal relationship between spouses, facilitating smoother legal processes.

The Attestation Process:

Marriage certificate attestation typically involves the following steps:

Notarization: The marriage certificate is initially notarized by a notary public to confirm its authenticity and legality.

State Authentication: Following notarization, the document is authenticated by the relevant state authorities or the department responsible for issuing marriage certificates.

Ministry of External Affairs (MEA) Attestation: In many countries, including India, marriage certificates must undergo attestation by the Ministry of External Affairs or its equivalent national authority to verify the document's authenticity for international use.

Embassy or Consulate Attestation: Subsequently, the attested marriage certificate may require further validation by the embassy or consulate of the destination country where it is intended to be used.

Translation and Legalization (if applicable): If the marriage certificate is in a language other than the official language of the destination country, certified translation may be necessary. Additionally, some countries may require further legalization of the document through their respective procedures.

Challenges and Considerations:

Despite its significance, the marriage certificate attestation process can be intricate and time-consuming, often involving multiple authorities and bureaucratic hurdles. Delays or discrepancies in documentation can impede travel, employment, or settlement plans, causing inconvenience and frustration for individuals and families.

Moreover, variations in attestation requirements across countries further compound the complexity. Each destination country may have specific guidelines regarding the documents accepted for attestation, the sequence of authentication, and the validity period of attested certificates.

Additionally, the cost associated with marriage certificate attestation, including notarization fees, government charges, and service charges by attestation agencies, can be a concern for some individuals, especially if multiple documents require attestation.

Furthermore, the ongoing COVID-19 pandemic has disrupted consular services and international travel, leading to additional challenges and delays in the attestation process. It is essential for individuals to stay updated on the latest guidelines and procedures implemented by relevant authorities amidst the evolving global situation.

Conclusion:

In a world characterized by mobility and globalization, marriage certificate attestation emerges as a vital process for individuals navigating international opportunities, whether for education, employment, settlement, or family reunification. Beyond its bureaucratic implications, attested marriage certificates symbolize the legal recognition and validation of marital unions across borders, ensuring that couples can access rights, benefits, and privileges in foreign jurisdictions.

While the attestation process may present challenges and complexities, proactive planning, adherence to guidelines, and seeking assistance from professional attestation services can streamline the process and mitigate potential hurdles. By recognizing the significance of marriage certificate attestation and navigating the process effectively, individuals and families can unlock a world of possibilities and embark on new journeys with confidence and assurance.

[vectorintelligence]

Types of Private Investigator Services

The private investigator’s services are booming nowadays. But what’s the reason behind this? Any idea? The role of a private investigator revolves around investigating a specific case or situation. These investigating specialists have experience in several fields. From investigating a company’s fraud to finding a missing person, private investigators are very well aware of their job and valuable skills to use in various situations.  

But let’s be clear with the meaning of private investigators.

What Are Private Investigators?

A private investigator is an individual who is hired by someone who can be an attorney or a company to assist in the investigation of a specific case or situation. They work outside of law enforcement, and this is why they can be hired for distinct reasons.

If you’re searching online for a “private investigator near me” for some specific reason, you will surely realize that many private investigators are specialized in different fields. Do you want to know the types of private investigator services? It’s time to go through the below-listed points.

Below, we have covered different types of private investigators specialized in their own field and can be hired for any specific case.

Accident / Reconstruction - A private investigator in this field investigates a specific accident or crime to determine who is responsible for the whole situation.

Arson/ Fire: A private investigator hired for such a situation often works directly for the fire department to find the cause of the fire.

Financial - Private investigators hired for such purposes create financial background reports or search for assets in order to recover judgments in fraud and theft cases.

Forensic -Forensic investigators focus on collecting any type of evidence. They may work quite closely with law enforcement, or in contrast to them.

Asset Search: Private investigators in this field search public records to check property or real estate ownership.

Background Checks:  No matter whether it is simple or complex, private investigators are also hired for extensive background checks on individuals to check the criminal background, past aliases, or more.

Computer Forensics / Cyber Crime: Private investigators in this field are specialized in computers and technology-related crime that helps them gather evidence with technology’s help.

Corporate: Instead of having their own company or private investigation firm, these professionals become a part of the staff of a particular company.

Missing Persons /People Locate: When it comes to finding out the missing person, private investigators are considered the best. They use a variety of tactics in order to trace the missing person.

Trial Preparation - PI plays an important role in trial preparation. They work to obtain information for lawyers and provide complete assistance in the preparation of criminal defense cases.

Crime Scene: PI works outside of law enforcement. Hence, these professionals focus on the evidence at a crime scene being a part of a larger criminal case.

Domestic: whether it is child support or parental custody, a domestic investigator helps out an individual in all such situations, typically using surveillance.

Hotel - Hotel PI often protects the property of employees, guests, or parts of the hotel itself from theft.

Identity Theft - A PI hired for identity theft investigation checks if, who, or when an instance of identity theft occurred

Bug Detection: It’s a type of cyber investigation for which an investigator is hired who performs electronic sweeps of areas to find location trackers or hidden recording devices.

Cell Phone Records: PI hired for this purpose usually obtain cell phone records (with consent or a search warrant). They check the cell phone’s history and full record for several purposes, such as fraud or to find a missing person.

Child Support / Custody: An individual also hires a private investigator for a proper custody investigation for the best placement of a child between legal custodial guardians or anyone.

Civil: The primary goal of PI hired for civil is to unlock the information related to a civil trial. This basically happens in the case when a person sues another for a number of reasons.

Electronic/Video/Photo Surveillance: Private investigators are highly skilled in accomplishing electronic surveillance that is usually adept at using various recording devices or online history as part of their larger investigation. In such investigations, video and photo surveillance are more focused.

Fraud - Such private investigators are often hired by a company (like an insurance company). They focus on determining whether or not someone is using fraud in order to gain some sort of financial payoff.

Cheating Spouse: PI is also hired for domestic investigation. An investigator in such a case focuses on applying high surveillance tactics to know if a spouse or partner is engaged in extramarital situations.

Insurance Fraud: In such a case, a private investigator is hired to examine claims in workers’ compensation cases, which can be susceptible to fraudulent activity.

The above-listed points are some types of private investigator services that you can hire for the matching situation.

Vector Intelligence

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[melissawalker01]

Utah Divorce Code 30-3-36

Utah Code 30-3-36: Special Circumstances

1. When parent-time has not taken place for an extended period of time and the child lacks an appropriate bond with the noncustodial parent, both parents shall consider the possible adverse effects upon the child and gradually reintroduce an appropriate parent-time plan for the noncustodial parent. 2. For emergency purposes, whenever the child travels with either parent, all of the following will be provided to the other parent:(a) a. an itinerary of travel dates; b. destinations; c. places where the child or traveling parent can be reached; and d. the name and telephone number of an available third person who would be knowledgeable of the child’s location. 3. Unchaperoned travel of a child under the age of five years is not recommended.

Section 10 of the 1985 Act provides that the court can depart from “equal sharing” if this departure is justified by “special circumstances”. The law is not black and white in regard to what exactly constitutes a ‘special circumstance’ however; Section 10(6) provides an illustrative list of possible “special circumstances”:

• The terms of any agreement between the parties on the ownership or division of any of the matrimonial property; • The source of the funds or assets used to acquire any of the matrimonial property where those funds or assets were not derived from the income or efforts of the parties during the marriage; • Any destruction, dissipation or alienation of property by either party; • The nature of the matrimonial property, the use made of it (including use for business purposes or as a matrimonial home) and the extent to which it is reasonable to expect it to be realized or divided or used as security; • The actual or prospective liability for any expenses of valuation or transfer of property in connection with the divorce. The circumstances mentioned will not necessarily guarantee a departure from equal sharing but rather it will be a matter for negotiation, or in litigation for consideration by the Sheriff or Judge determining the case. The Sheriff or Judge must be satisfied that equal sharing would not be fair in the circumstances of the case and ultimately it will be a matter for agreement or exercise of the court’s discretion.

Common Law Marriage and Divorce

Common law marriage is an informal form of marriage. Couples that have an informal marriage do not obtain a marriage license. Instead, they live together for a significant period of time and have the intention to marry. Without a license or a wedding, these couples can be considered married in some states because they act like they are married by living together and caring for one another. Not every state recognizes common law marriage as a legal form of law. The only states that allow this type of marriage are: • Alabama • Colorado • The District of Columbia • Georgia (for marriages before 1/1/1997) • Idaho (for marriages before 1/1/1996) • Iowa • Kansas • Montana • New Hampshire (for inheritance purposes) • Ohio (for marriages before 10/10/1991) • Oklahoma • Pennsylvania • Rhode Island • South Carolina • Texas Couples are considered married by common law in these states if they act like they are married, for instance by wearing wedding rings, using the same last name, referring to each other as “husband” and “wife”, and filing joint tax returns. Even in states that do not allow common law marriages, these couples will get considered married. This is because the marriage is valid in the state that it occurred in, and all other states must recognize valid marriages of another state. This qualifies as a special circumstance.

Common Law Divorce

While the process of becoming informally married is very different than a traditional marriage, the divorce process is the same for both types of marriage. The rights and obligations present in a common law marriage are the same as those for a traditional marriage. As a result, ending the marriage means undergoing the traditional divorce process. You will have to file the procedures for divorce in the state that you live in. The divorce process will vary based on where you live. However, because many states do not allow common law marriage, if you live in one of these states, you won’t have to worry about filing for divorce, since your state will never recognize your marriage as legal in the first place. If you are not sure if you are legally married as a result of common law marriage in your state, and you want to get a divorce, you should discuss your situation with a divorce lawyer.

Marriage Annulment

Divorce and annulment have similarities; however, they are also two different procedures that can mean slightly different things. Both are court proceedings that dissolve a marriage, however, a divorce imply that the marriage has simply ended, while an annulment treats the marriage like it never happened. Because divorce can carry a negative stigma, some people prefer to get their marriages annulled. If this is the case, a civil annulment is applied for. However, some people want to get an annulment because it makes it easier to remarry within the church if the marriage is not recognized. If this is the case, you should get a religious annulment.

Marriage Annulment Reasons

If you want to get a civil annulment, there are several grounds that you can file for an annulment on. These vary slightly by state, so you should hire a divorce attorney to help you understand the exact laws and procedures in your state. However, getting an annulment will generally require at least one of the following reasons. The first reason to get a civil annulment is fraud or misrepresentation. If your spouse knowingly lied to you about something like his or her ability to have children, a previous and existing marriage, or lying about reaching the age of consent, these are grounds for an annulment. Another reason to get an annulment is the ability or refusal to consummate the marriage. If your marriage is never consummated, for whatever reason, you will have grounds for an annulment. Concealment is another ground for an annulment. If your spouse conceals an addiction to drugs or alcohol, children from another relationship, a sexually transmitted disease, a felony conviction, or impotency, you might be able to get an annulment. The final grounds for an annulment is a misunderstanding, such as if one spouse wants to have children and the other does not. This is the most open-ended of the reasons for an annulment, so you might want to talk to a lawyer about your specific circumstances and the likelihood of making a case for an annulment.

The legal reasons for divorce can vary by state, but below are some of the most generally accepted grounds to file for at-fault divorce: • Adultery or cheating • Bigamy • Desertion • Mental incapacity at time of marriage • Marriage between close relatives • Impotence at time of marriage • Force or fraud in obtaining the marriage • Criminal conviction and/or imprisonment • Mental or physical abuse • Drug or alcohol addiction • Mental illness Again, check your state laws to be sure, but these are the most common grounds for divorce across various states. You’ll be required to provide proof of misconduct during the court proceedings; so, be prepared. For example, if you’re divorcing on the grounds of adultery, you’ll need more than just a strong suspicion your spouse is sleeping around.

Filing for No-Fault Divorce

All states offer a form of no-fault divorce. However, you still need to file based on legal grounds. In no-fault cases, the grounds are commonly referred to by some of the following terms: • Irreconcilable differences • Incompatibility • Irretrievable breakdown This is simply a formal way of saying you and your spouses have serious differences that have broken your marriage beyond your ability to repair it. No one is at fault, but you still want a divorce. No-fault divorces are quite common and are usually the faster and simpler form of divorce proceedings. Because there is no burden of proof, the trials tend to be quicker and cheaper than their counterparts.

Deciding Between Filing for At-Fault or No-Fault Divorce

Making the right determination depends on a few factors. First, do you have hard proof of misconduct? If you don’t, filing for no-fault is going to be your only option. Similarly, if your budget is constrained, you may not want to endure the long, dragged out process of an at-fault divorce. However, in states where a spouse’s actions and misdeeds can influence the Court’s division of property and allocation of alimony, it may be worth bringing it up. For example, if your spouse lavished expensive gifts on his/her lover, you may want to ask the court to be reimbursed for the share of monies squandered as part of the final settlement. Ultimately, you’re the only one who can decide what the right path is going to be for you. While you can certainly consult a lawyer about your options, the final decision will be yours.

Resolving Issues on Your Own

If you and your spouse are on good terms, you can itemize your marital issues, and attempt to reach a meeting of the minds on each one of them. It would be wise to do some advance research to learn about the topics you’ll need to discuss, so you don’t omit anything. Typically, divorce issues include any or all of the following: • property and debt division • alimony or spousal support • child custody, and • child support. Once you’ve come to an agreement on all of your divorce-related issues, you should have a divorce lawyer formalize your settlement by preparing a Property Settlement Agreement (also known as a Marital Settlement Agreement). This will normally contain important legal clauses, in addition to the terms you’ve reached. Remember though that you and your spouse cannot use the same attorney you should each have your own lawyers review the agreement on your behalf.

Mediating Your Divorce

Mediation is a popular method of ADR. Mediators are trained professionals (typically lawyers or child custody experts) who assist the spouses in working out their differences. The couple will provide the mediator with information and documents (such as tax returns) in advance and meet with the mediator as often as necessary to reach a settlement. The goal is to reduce the settlement terms to a written agreement. Mediation is ordinarily much less stressful than a contested divorce. Sessions are relatively informal and often take place in the mediator’s office. And although the couple can have attorneys with them, it’s not required, which adds to the cost-effectiveness of the mediation process. (In fact, having attorneys present can at times be counterproductive, particularly if an attorney is combative.) You will have to pay the mediator, but that cost is usually shared.

Collaborative Divorce

Collaborative divorce is another form of ADR. It’s similar to mediation in that the goal is to reach a settlement, but it’s structured differently. Collaborative divorce doesn’t involve a mediator or other intermediary. Rather, the spouses each have an attorney, and participate in “four-way” sessions with that goal of reaching an agreement. Attorneys who practice collaborative law often have special training in this area. And to ensure that they keep their focus on settlement, the law in most if not all states won’t permit them to represent the spouses in future court proceedings, should the negotiations fail. Collaborative law is grounded in a team approach. All participants are obligated to work together to reach an agreement. Any experts that take part in the process (such as accountants, property appraisers, and child psychologists where custody is an issue) must be neutral and agreed to by both spouses. People tend to opt for collaborative divorce over mediation if they’re more comfortable having an attorney represent them in all phases of the settlement proceedings. But remember, if you’re unable to reach an agreement, you have to start the formal divorce process with new attorneys. This could mean a significant additional expense, because these new lawyers will have to familiarize themselves with the case, from scratch.

Divorce Arbitration

Divorce arbitration is yet another tool in the ADR kit and is often utilized by couples who don’t believe they’ll be able to settle their dispute, but want someone to decide their issues outside of the normal court process. Whereas mediation and collaborative divorce are geared to settling your case, the goal of arbitration is for the arbitrator to adjudicate the matter and issue a decision, much as a judge would after a trial. (Divorce arbitration may not be available in all states, so check with a local attorney to find out if it’s practiced where you live.) Arbitration has benefits over a court trial. You and your spouse get to choose the arbitrator. In court, you can’t pick your judge. Also, you can decide to relax the usual rules of evidence. For example, you might agree to allow the production of a witness’s sworn written statement, rather than having the witness appears in person. Additionally, you’ll work together to set the dates, times, and duration of your arbitration sessions. That’s a luxury you don’t have in court, where contested divorces can linger for over a year, and you can spend hours each time you’re there, just waiting for a judge to become available. The major drawback of arbitration is that the decision is binding and final. Barring some impropriety on the arbitrator’s part, you ordinarily can’t appeal. With a court trial, you can appeal almost as a matter of course. Also, in addition to paying your lawyers, you’ll have to pay the arbitrator. This can get pricey, particularly with complex cases.

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!

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{ "@context": "http://schema.org/", "@type": "Product", "name": "ascentlawfirm", "description": "Ascent Law helps you in divorce, bankruptcy, probate, business or criminal cases in Utah, call 801-676-5506 for a free consultation today. We want to help you. ", "brand": { "@type": "Thing", "name": "ascentlawfirm" }, "aggregateRating": { "@type": "AggregateRating", "ratingValue": "4.9", "ratingCount": "118" }, "offers": { "@type": "Offer", "priceCurrency": "USD" } }

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The post Utah Divorce Code 30-3-36 first appeared on Michael Anderson.

from Michael Anderson https://www.ascentlawfirm.com/utah-divorce-code-30-3-36/ from Divorce Lawyer Nelson Farms Utah https://divorcelawyernelsonfarmsutah.tumblr.com/post/631498860978667520

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Utah Divorce Code 30-3-36

Utah Code 30-3-36: Special Circumstances

1. When parent-time has not taken place for an extended period of time and the child lacks an appropriate bond with the noncustodial parent, both parents shall consider the possible adverse effects upon the child and gradually reintroduce an appropriate parent-time plan for the noncustodial parent. 2. For emergency purposes, whenever the child travels with either parent, all of the following will be provided to the other parent:(a) a. an itinerary of travel dates; b. destinations; c. places where the child or traveling parent can be reached; and d. the name and telephone number of an available third person who would be knowledgeable of the child’s location. 3. Unchaperoned travel of a child under the age of five years is not recommended.

Section 10 of the 1985 Act provides that the court can depart from “equal sharing” if this departure is justified by “special circumstances”. The law is not black and white in regard to what exactly constitutes a ‘special circumstance’ however; Section 10(6) provides an illustrative list of possible “special circumstances”:

• The terms of any agreement between the parties on the ownership or division of any of the matrimonial property; • The source of the funds or assets used to acquire any of the matrimonial property where those funds or assets were not derived from the income or efforts of the parties during the marriage; • Any destruction, dissipation or alienation of property by either party; • The nature of the matrimonial property, the use made of it (including use for business purposes or as a matrimonial home) and the extent to which it is reasonable to expect it to be realized or divided or used as security; • The actual or prospective liability for any expenses of valuation or transfer of property in connection with the divorce. The circumstances mentioned will not necessarily guarantee a departure from equal sharing but rather it will be a matter for negotiation, or in litigation for consideration by the Sheriff or Judge determining the case. The Sheriff or Judge must be satisfied that equal sharing would not be fair in the circumstances of the case and ultimately it will be a matter for agreement or exercise of the court’s discretion.

Common Law Marriage and Divorce

Common law marriage is an informal form of marriage. Couples that have an informal marriage do not obtain a marriage license. Instead, they live together for a significant period of time and have the intention to marry. Without a license or a wedding, these couples can be considered married in some states because they act like they are married by living together and caring for one another. Not every state recognizes common law marriage as a legal form of law. The only states that allow this type of marriage are: • Alabama • Colorado • The District of Columbia • Georgia (for marriages before 1/1/1997) • Idaho (for marriages before 1/1/1996) • Iowa • Kansas • Montana • New Hampshire (for inheritance purposes) • Ohio (for marriages before 10/10/1991) • Oklahoma • Pennsylvania • Rhode Island • South Carolina • Texas Couples are considered married by common law in these states if they act like they are married, for instance by wearing wedding rings, using the same last name, referring to each other as “husband” and “wife”, and filing joint tax returns. Even in states that do not allow common law marriages, these couples will get considered married. This is because the marriage is valid in the state that it occurred in, and all other states must recognize valid marriages of another state. This qualifies as a special circumstance.

Common Law Divorce

While the process of becoming informally married is very different than a traditional marriage, the divorce process is the same for both types of marriage. The rights and obligations present in a common law marriage are the same as those for a traditional marriage. As a result, ending the marriage means undergoing the traditional divorce process. You will have to file the procedures for divorce in the state that you live in. The divorce process will vary based on where you live. However, because many states do not allow common law marriage, if you live in one of these states, you won’t have to worry about filing for divorce, since your state will never recognize your marriage as legal in the first place. If you are not sure if you are legally married as a result of common law marriage in your state, and you want to get a divorce, you should discuss your situation with a divorce lawyer.

Marriage Annulment

Divorce and annulment have similarities; however, they are also two different procedures that can mean slightly different things. Both are court proceedings that dissolve a marriage, however, a divorce imply that the marriage has simply ended, while an annulment treats the marriage like it never happened. Because divorce can carry a negative stigma, some people prefer to get their marriages annulled. If this is the case, a civil annulment is applied for. However, some people want to get an annulment because it makes it easier to remarry within the church if the marriage is not recognized. If this is the case, you should get a religious annulment.

Marriage Annulment Reasons

If you want to get a civil annulment, there are several grounds that you can file for an annulment on. These vary slightly by state, so you should hire a divorce attorney to help you understand the exact laws and procedures in your state. However, getting an annulment will generally require at least one of the following reasons. The first reason to get a civil annulment is fraud or misrepresentation. If your spouse knowingly lied to you about something like his or her ability to have children, a previous and existing marriage, or lying about reaching the age of consent, these are grounds for an annulment. Another reason to get an annulment is the ability or refusal to consummate the marriage. If your marriage is never consummated, for whatever reason, you will have grounds for an annulment. Concealment is another ground for an annulment. If your spouse conceals an addiction to drugs or alcohol, children from another relationship, a sexually transmitted disease, a felony conviction, or impotency, you might be able to get an annulment. The final grounds for an annulment is a misunderstanding, such as if one spouse wants to have children and the other does not. This is the most open-ended of the reasons for an annulment, so you might want to talk to a lawyer about your specific circumstances and the likelihood of making a case for an annulment.

The legal reasons for divorce can vary by state, but below are some of the most generally accepted grounds to file for at-fault divorce: • Adultery or cheating • Bigamy • Desertion • Mental incapacity at time of marriage • Marriage between close relatives • Impotence at time of marriage • Force or fraud in obtaining the marriage • Criminal conviction and/or imprisonment • Mental or physical abuse • Drug or alcohol addiction • Mental illness Again, check your state laws to be sure, but these are the most common grounds for divorce across various states. You’ll be required to provide proof of misconduct during the court proceedings; so, be prepared. For example, if you’re divorcing on the grounds of adultery, you’ll need more than just a strong suspicion your spouse is sleeping around.

Filing for No-Fault Divorce

All states offer a form of no-fault divorce. However, you still need to file based on legal grounds. In no-fault cases, the grounds are commonly referred to by some of the following terms: • Irreconcilable differences • Incompatibility • Irretrievable breakdown This is simply a formal way of saying you and your spouses have serious differences that have broken your marriage beyond your ability to repair it. No one is at fault, but you still want a divorce. No-fault divorces are quite common and are usually the faster and simpler form of divorce proceedings. Because there is no burden of proof, the trials tend to be quicker and cheaper than their counterparts.

Deciding Between Filing for At-Fault or No-Fault Divorce

Making the right determination depends on a few factors. First, do you have hard proof of misconduct? If you don’t, filing for no-fault is going to be your only option. Similarly, if your budget is constrained, you may not want to endure the long, dragged out process of an at-fault divorce. However, in states where a spouse’s actions and misdeeds can influence the Court’s division of property and allocation of alimony, it may be worth bringing it up. For example, if your spouse lavished expensive gifts on his/her lover, you may want to ask the court to be reimbursed for the share of monies squandered as part of the final settlement. Ultimately, you’re the only one who can decide what the right path is going to be for you. While you can certainly consult a lawyer about your options, the final decision will be yours.

Resolving Issues on Your Own

If you and your spouse are on good terms, you can itemize your marital issues, and attempt to reach a meeting of the minds on each one of them. It would be wise to do some advance research to learn about the topics you’ll need to discuss, so you don’t omit anything. Typically, divorce issues include any or all of the following: • property and debt division • alimony or spousal support • child custody, and • child support. Once you’ve come to an agreement on all of your divorce-related issues, you should have a divorce lawyer formalize your settlement by preparing a Property Settlement Agreement (also known as a Marital Settlement Agreement). This will normally contain important legal clauses, in addition to the terms you’ve reached. Remember though that you and your spouse cannot use the same attorney you should each have your own lawyers review the agreement on your behalf.

Mediating Your Divorce

Mediation is a popular method of ADR. Mediators are trained professionals (typically lawyers or child custody experts) who assist the spouses in working out their differences. The couple will provide the mediator with information and documents (such as tax returns) in advance and meet with the mediator as often as necessary to reach a settlement. The goal is to reduce the settlement terms to a written agreement. Mediation is ordinarily much less stressful than a contested divorce. Sessions are relatively informal and often take place in the mediator’s office. And although the couple can have attorneys with them, it’s not required, which adds to the cost-effectiveness of the mediation process. (In fact, having attorneys present can at times be counterproductive, particularly if an attorney is combative.) You will have to pay the mediator, but that cost is usually shared.

Collaborative Divorce

Collaborative divorce is another form of ADR. It’s similar to mediation in that the goal is to reach a settlement, but it’s structured differently. Collaborative divorce doesn’t involve a mediator or other intermediary. Rather, the spouses each have an attorney, and participate in “four-way” sessions with that goal of reaching an agreement. Attorneys who practice collaborative law often have special training in this area. And to ensure that they keep their focus on settlement, the law in most if not all states won’t permit them to represent the spouses in future court proceedings, should the negotiations fail. Collaborative law is grounded in a team approach. All participants are obligated to work together to reach an agreement. Any experts that take part in the process (such as accountants, property appraisers, and child psychologists where custody is an issue) must be neutral and agreed to by both spouses. People tend to opt for collaborative divorce over mediation if they’re more comfortable having an attorney represent them in all phases of the settlement proceedings. But remember, if you’re unable to reach an agreement, you have to start the formal divorce process with new attorneys. This could mean a significant additional expense, because these new lawyers will have to familiarize themselves with the case, from scratch.

Divorce Arbitration

Divorce arbitration is yet another tool in the ADR kit and is often utilized by couples who don’t believe they’ll be able to settle their dispute, but want someone to decide their issues outside of the normal court process. Whereas mediation and collaborative divorce are geared to settling your case, the goal of arbitration is for the arbitrator to adjudicate the matter and issue a decision, much as a judge would after a trial. (Divorce arbitration may not be available in all states, so check with a local attorney to find out if it’s practiced where you live.) Arbitration has benefits over a court trial. You and your spouse get to choose the arbitrator. In court, you can’t pick your judge. Also, you can decide to relax the usual rules of evidence. For example, you might agree to allow the production of a witness’s sworn written statement, rather than having the witness appears in person. Additionally, you’ll work together to set the dates, times, and duration of your arbitration sessions. That’s a luxury you don’t have in court, where contested divorces can linger for over a year, and you can spend hours each time you’re there, just waiting for a judge to become available. The major drawback of arbitration is that the decision is binding and final. Barring some impropriety on the arbitrator’s part, you ordinarily can’t appeal. With a court trial, you can appeal almost as a matter of course. Also, in addition to paying your lawyers, you’ll have to pay the arbitrator. This can get pricey, particularly with complex cases.

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

Ascent Law LLC

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Source: https://www.ascentlawfirm.com/utah-divorce-code-30-3-36/

[divorcelawyergunnisonutah]

Utah Divorce Code 30-3-36

Utah Code 30-3-36: Special Circumstances

1. When parent-time has not taken place for an extended period of time and the child lacks an appropriate bond with the noncustodial parent, both parents shall consider the possible adverse effects upon the child and gradually reintroduce an appropriate parent-time plan for the noncustodial parent. 2. For emergency purposes, whenever the child travels with either parent, all of the following will be provided to the other parent:(a) a. an itinerary of travel dates; b. destinations; c. places where the child or traveling parent can be reached; and d. the name and telephone number of an available third person who would be knowledgeable of the child’s location. 3. Unchaperoned travel of a child under the age of five years is not recommended.

Section 10 of the 1985 Act provides that the court can depart from “equal sharing” if this departure is justified by “special circumstances”. The law is not black and white in regard to what exactly constitutes a ‘special circumstance’ however; Section 10(6) provides an illustrative list of possible “special circumstances”:

• The terms of any agreement between the parties on the ownership or division of any of the matrimonial property; • The source of the funds or assets used to acquire any of the matrimonial property where those funds or assets were not derived from the income or efforts of the parties during the marriage; • Any destruction, dissipation or alienation of property by either party; • The nature of the matrimonial property, the use made of it (including use for business purposes or as a matrimonial home) and the extent to which it is reasonable to expect it to be realized or divided or used as security; • The actual or prospective liability for any expenses of valuation or transfer of property in connection with the divorce. The circumstances mentioned will not necessarily guarantee a departure from equal sharing but rather it will be a matter for negotiation, or in litigation for consideration by the Sheriff or Judge determining the case. The Sheriff or Judge must be satisfied that equal sharing would not be fair in the circumstances of the case and ultimately it will be a matter for agreement or exercise of the court’s discretion.

Common Law Marriage and Divorce

Common law marriage is an informal form of marriage. Couples that have an informal marriage do not obtain a marriage license. Instead, they live together for a significant period of time and have the intention to marry. Without a license or a wedding, these couples can be considered married in some states because they act like they are married by living together and caring for one another. Not every state recognizes common law marriage as a legal form of law. The only states that allow this type of marriage are: • Alabama • Colorado • The District of Columbia • Georgia (for marriages before 1/1/1997) • Idaho (for marriages before 1/1/1996) • Iowa • Kansas • Montana • New Hampshire (for inheritance purposes) • Ohio (for marriages before 10/10/1991) • Oklahoma • Pennsylvania • Rhode Island • South Carolina • Texas Couples are considered married by common law in these states if they act like they are married, for instance by wearing wedding rings, using the same last name, referring to each other as “husband” and “wife”, and filing joint tax returns. Even in states that do not allow common law marriages, these couples will get considered married. This is because the marriage is valid in the state that it occurred in, and all other states must recognize valid marriages of another state. This qualifies as a special circumstance.

Common Law Divorce

While the process of becoming informally married is very different than a traditional marriage, the divorce process is the same for both types of marriage. The rights and obligations present in a common law marriage are the same as those for a traditional marriage. As a result, ending the marriage means undergoing the traditional divorce process. You will have to file the procedures for divorce in the state that you live in. The divorce process will vary based on where you live. However, because many states do not allow common law marriage, if you live in one of these states, you won’t have to worry about filing for divorce, since your state will never recognize your marriage as legal in the first place. If you are not sure if you are legally married as a result of common law marriage in your state, and you want to get a divorce, you should discuss your situation with a divorce lawyer.

Marriage Annulment

Divorce and annulment have similarities; however, they are also two different procedures that can mean slightly different things. Both are court proceedings that dissolve a marriage, however, a divorce imply that the marriage has simply ended, while an annulment treats the marriage like it never happened. Because divorce can carry a negative stigma, some people prefer to get their marriages annulled. If this is the case, a civil annulment is applied for. However, some people want to get an annulment because it makes it easier to remarry within the church if the marriage is not recognized. If this is the case, you should get a religious annulment.

Marriage Annulment Reasons

If you want to get a civil annulment, there are several grounds that you can file for an annulment on. These vary slightly by state, so you should hire a divorce attorney to help you understand the exact laws and procedures in your state. However, getting an annulment will generally require at least one of the following reasons. The first reason to get a civil annulment is fraud or misrepresentation. If your spouse knowingly lied to you about something like his or her ability to have children, a previous and existing marriage, or lying about reaching the age of consent, these are grounds for an annulment. Another reason to get an annulment is the ability or refusal to consummate the marriage. If your marriage is never consummated, for whatever reason, you will have grounds for an annulment. Concealment is another ground for an annulment. If your spouse conceals an addiction to drugs or alcohol, children from another relationship, a sexually transmitted disease, a felony conviction, or impotency, you might be able to get an annulment. The final grounds for an annulment is a misunderstanding, such as if one spouse wants to have children and the other does not. This is the most open-ended of the reasons for an annulment, so you might want to talk to a lawyer about your specific circumstances and the likelihood of making a case for an annulment.

The legal reasons for divorce can vary by state, but below are some of the most generally accepted grounds to file for at-fault divorce: • Adultery or cheating • Bigamy • Desertion • Mental incapacity at time of marriage • Marriage between close relatives • Impotence at time of marriage • Force or fraud in obtaining the marriage • Criminal conviction and/or imprisonment • Mental or physical abuse • Drug or alcohol addiction • Mental illness Again, check your state laws to be sure, but these are the most common grounds for divorce across various states. You’ll be required to provide proof of misconduct during the court proceedings; so, be prepared. For example, if you’re divorcing on the grounds of adultery, you’ll need more than just a strong suspicion your spouse is sleeping around.

Filing for No-Fault Divorce

All states offer a form of no-fault divorce. However, you still need to file based on legal grounds. In no-fault cases, the grounds are commonly referred to by some of the following terms: • Irreconcilable differences • Incompatibility • Irretrievable breakdown This is simply a formal way of saying you and your spouses have serious differences that have broken your marriage beyond your ability to repair it. No one is at fault, but you still want a divorce. No-fault divorces are quite common and are usually the faster and simpler form of divorce proceedings. Because there is no burden of proof, the trials tend to be quicker and cheaper than their counterparts.

Deciding Between Filing for At-Fault or No-Fault Divorce

Making the right determination depends on a few factors. First, do you have hard proof of misconduct? If you don’t, filing for no-fault is going to be your only option. Similarly, if your budget is constrained, you may not want to endure the long, dragged out process of an at-fault divorce. However, in states where a spouse’s actions and misdeeds can influence the Court’s division of property and allocation of alimony, it may be worth bringing it up. For example, if your spouse lavished expensive gifts on his/her lover, you may want to ask the court to be reimbursed for the share of monies squandered as part of the final settlement. Ultimately, you’re the only one who can decide what the right path is going to be for you. While you can certainly consult a lawyer about your options, the final decision will be yours.

Resolving Issues on Your Own

If you and your spouse are on good terms, you can itemize your marital issues, and attempt to reach a meeting of the minds on each one of them. It would be wise to do some advance research to learn about the topics you’ll need to discuss, so you don’t omit anything. Typically, divorce issues include any or all of the following: • property and debt division • alimony or spousal support • child custody, and • child support. Once you’ve come to an agreement on all of your divorce-related issues, you should have a divorce lawyer formalize your settlement by preparing a Property Settlement Agreement (also known as a Marital Settlement Agreement). This will normally contain important legal clauses, in addition to the terms you’ve reached. Remember though that you and your spouse cannot use the same attorney you should each have your own lawyers review the agreement on your behalf.

Mediating Your Divorce

Mediation is a popular method of ADR. Mediators are trained professionals (typically lawyers or child custody experts) who assist the spouses in working out their differences. The couple will provide the mediator with information and documents (such as tax returns) in advance and meet with the mediator as often as necessary to reach a settlement. The goal is to reduce the settlement terms to a written agreement. Mediation is ordinarily much less stressful than a contested divorce. Sessions are relatively informal and often take place in the mediator’s office. And although the couple can have attorneys with them, it’s not required, which adds to the cost-effectiveness of the mediation process. (In fact, having attorneys present can at times be counterproductive, particularly if an attorney is combative.) You will have to pay the mediator, but that cost is usually shared.

Collaborative Divorce

Collaborative divorce is another form of ADR. It’s similar to mediation in that the goal is to reach a settlement, but it’s structured differently. Collaborative divorce doesn’t involve a mediator or other intermediary. Rather, the spouses each have an attorney, and participate in “four-way” sessions with that goal of reaching an agreement. Attorneys who practice collaborative law often have special training in this area. And to ensure that they keep their focus on settlement, the law in most if not all states won’t permit them to represent the spouses in future court proceedings, should the negotiations fail. Collaborative law is grounded in a team approach. All participants are obligated to work together to reach an agreement. Any experts that take part in the process (such as accountants, property appraisers, and child psychologists where custody is an issue) must be neutral and agreed to by both spouses. People tend to opt for collaborative divorce over mediation if they’re more comfortable having an attorney represent them in all phases of the settlement proceedings. But remember, if you’re unable to reach an agreement, you have to start the formal divorce process with new attorneys. This could mean a significant additional expense, because these new lawyers will have to familiarize themselves with the case, from scratch.

Divorce Arbitration

Divorce arbitration is yet another tool in the ADR kit and is often utilized by couples who don’t believe they’ll be able to settle their dispute, but want someone to decide their issues outside of the normal court process. Whereas mediation and collaborative divorce are geared to settling your case, the goal of arbitration is for the arbitrator to adjudicate the matter and issue a decision, much as a judge would after a trial. (Divorce arbitration may not be available in all states, so check with a local attorney to find out if it’s practiced where you live.) Arbitration has benefits over a court trial. You and your spouse get to choose the arbitrator. In court, you can’t pick your judge. Also, you can decide to relax the usual rules of evidence. For example, you might agree to allow the production of a witness’s sworn written statement, rather than having the witness appears in person. Additionally, you’ll work together to set the dates, times, and duration of your arbitration sessions. That’s a luxury you don’t have in court, where contested divorces can linger for over a year, and you can spend hours each time you’re there, just waiting for a judge to become available. The major drawback of arbitration is that the decision is binding and final. Barring some impropriety on the arbitrator’s part, you ordinarily can’t appeal. With a court trial, you can appeal almost as a matter of course. Also, in addition to paying your lawyers, you’ll have to pay the arbitrator. This can get pricey, particularly with complex cases.

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

Ascent Law LLC

4.9 stars – based on 67 reviews

Recent Posts

Nursing Homes In Utah

Utah Divorce Code 30-3-35.5

Conceal Carry Law

Property Manager Law

Design Patent Law

State And Federal Firearms Laws

{ "@context": "http://schema.org/", "@type": "Product", "name": "ascentlawfirm", "description": "Ascent Law helps you in divorce, bankruptcy, probate, business or criminal cases in Utah, call 801-676-5506 for a free consultation today. We want to help you. ", "brand": { "@type": "Thing", "name": "ascentlawfirm" }, "aggregateRating": { "@type": "AggregateRating", "ratingValue": "4.9", "ratingCount": "118" }, "offers": { "@type": "Offer", "priceCurrency": "USD" } }

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Ascent Law Ogden Utah Office

The post Utah Divorce Code 30-3-36 first appeared on Michael Anderson.

from Michael Anderson https://www.ascentlawfirm.com/utah-divorce-code-30-3-36/

[elizabethcariasa]

6 big life events and the role taxes play

A first job is a major life event with obvious major tax implications. Other momentous changes throughout our lives involve taxes, too.

As COVID-19 continues to spread across the United States, the White House has decided to follow state and local officials in urging continued social (aka physical) distancing.

For millions of us, this new April 30 stay home recommendation means more time cooped up with loved ones. Or not-so-loved ones.

My favorite non-medical virus-related debate right now is whether all the coronavirus forced togetherness ultimately will end with a baby boom (coronials, anyone?) or a marriage bust.

While the hubby and I definitely won't be adding to the U.S. population, neither will we be splitting up. We've both worked from home for the last 15 years, so we sort of have this always underfoot situation under control.

Others, however, might find all this unexpected 24/7 time could produce a major life change. And most of the time, such changes also have tax implications.

Here are six ways that your personal and lifestyle changes — including marital status changes and family additions — affect, for good or bad, your taxes.

Coronavirus Caveat The following tax situations apply to more normal life and tax times. We aren't in normal times right now. The COVID-19 pandemic's extraordinary disruption, of both our lives and taxes, means that some of them aren't so important or applicable as we focus on just getting through these trying days. But life as we knew it before the coronavirus will return, along with our mundane tax matters. Here's hoping that happens soon!

1. Landing your first job The best thing about getting your first full-time paying job is the money. The worst thing is that you have to share some of that income with Uncle Sam. There are income, both federal and, for folks in most of the United States, state and sometimes local taxes that come out of our paychecks before we even get them.

The payroll taxes are set by Federal Insurance Contributions Act, or FICA. This law established the employer-employee shared automatic pay-ins to support Social Security and Medicare benefits.

They are set at a total of 15.3 percent of your pay, with 12.4 percent going to the government retirement benefits program and 2.9 percent to medical coverage for when you're older. Your boss pays half of each Social Security and Medicare payroll tax amounts. You pay the other half.

You do, however, have some control over how much income tax comes out of your pay by adjusting your withholding.

If you have too much withheld, you'll get a refund when you file. That's not necessarily bad, but you could have that money — your own money — year-round as a bit more in each paycheck.

On the other hand, if you don't have enough withheld, you could face an unexpected tax bill at filing time. That also means possible underwithholding penalties.

You can make sure you have the proper amount withheld — tax gurus (and the Internal Revenue Service) say that should be an amount that's as close as possible to your eventual tax liability — by filling out a new W-4 form and giving it to your payroll administrator. The IRS' online Tax Withholding Estimator can help you run the numbers to determine what goes on your W-4.

Finally, don't forget your job's benefits. Many workplaces offer tax-favored employee perks, like health insurance, associated medical flexible spending accounts (FSAs) and 401(k) retirement plans.

2. Getting married You didn't invite Uncle Sam to your wedding, but he became a big part of your new wedded life as soon as you and your spouse exchanged vows.

The year you say "I do", even if you utter that phrase on Dec. 31, means the IRS considers you married for the full tax year. If there are tax or financial reasons to not be married in one year over another (like the hubby and me way back when we waited for a new tax break to kick in), then take that into account when planning your big event.

The first time that you file taxes as a married couple you'll have to choose a new filing status, either married filing separately or married filing jointly. Joint filing is the most common choice of wedded duos because it generally produces the best tax results.

Yes, the marriage tax penalty is still around, but it's not as severe thanks largely to the broadening of the tax bracket for that filing status. Plus, some tax breaks aren't allowed to a husband and wife who file separate returns.

Even before filling out that first shared Form 1040, if both spouses work each should reassess withholding amounts. The IRS says it's generally better for the higher-earning spouse to claim all the couple's allowances on his or her W-4, with the lower wage earner claiming zero.

Also be sure to take a look at your tax-favored workplace benefits and coordinate to maximize between spouses. For those that require family circumstances in order to adjust them, marriage definitely qualifies.

3. Having children Congratulations on your new baby. Your favorite Uncle Sam wants to help cover some of your growing family's costs via a variety of child-related tax breaks.

Your new dependent youngster allows you to claim the Child Tax Credit, which was expanded by the Tax Cuts and Jobs Act (TCJA). It gives you a tax credit, which is a dollar-for-dollar reduction of any tax you owe, of up to $2,000 per qualifying child. A portion of it also could in some situations be refundable, meaning exactly what that descriptor says: if you don't owe any tax, the credit comes back to you as a refund.

If your family grew via an adoption, there's a tax credit (and possible a tax-free workplace benefit) to cover some of the many costs of that process.

Working parents can use the child and dependent care credit to pay for some of the costs of caring for their kids while they are on the job.

And the tax code also offers several ways to help families save for and pay for your future student's educational costs.

4. Buying (and selling) a home Your growing family means you need more space. Not only will a bigger abode mean more space, it also could provide some tax breaks. Note, however, that you'll need to itemize to claim most of them and that's become a less popular filing option since the TCJA greatly increased the standard deduction amounts.

Still, if you find your home makes filling a Schedule A worthwhile, you can deduct the interest you pay on your primary residence's mortgage up to $750,000 (for home loans taken out after Dec. 14, 2017). Interest on a home equity loan or line of credit of up to $100,000 also is deductible as long as the money is used for purposes directly related to the home.

Property tax you pay on your main house also is deductible, but it could be limited. The TCJA caps all tax deductions, both real estate and state income amounts, at a combined $10,000.

Some home upgrades, such as installing solar energy systems, also will get you an immediate tax credit to help offset the high cost of this type of improvement.

And one of the best tax benefits of homeownership remains untouched under TCJA. When you do sell your residential property, up to $250,000 of your sales profit ($500,000 for married joint filers) is tax-free as long as you owned the property for two years and lived in it for two of the five years before the sale.

5. Dealing with divorce As with marriage, taxes play a surprising large role when romance fades.

The date of your divorce, just like your wedding day, determines your filing status for the full tax year. If your divorce is final Dec. 31, then you are considered unmarried for the full year.

Spousal support, commonly known as alimony, used to have to take taxes into account. The TCJA changed that.

Before the tax reform law took effect, the recipient of alimony had to pay tax on the money and the ex making the support payments could deduct them as an above-the-line deduction. That's still in effect for marital splits before the law took effect in later 2017.

But for subsequent divorces — I'm talking generally here with this plural, not your personal serial separations! — alimony isn't a tax factor. It's no longer taxable to the ex getting it or deductible by the ex paying it. Basically, now alimony is just like child support, another sticking point in many divorces.

In addition to who pays what for the care of a former couple's kids, divorce also will mean changes in filing status. The parent who gets primary custody should file as a head of household, which provides a larger standard deduction amount. The custodial parent also can claim the child-related tax breaks when filing. The other parent will file as a single taxpayer.

One ex-spouse also typically is granted sole ownership of the family home. This could pose a problem for the newly single owner, especially when he or she sells the property. The profit exclusion amount then is just $250,000 versus the $500,000 that married filing jointly homeowners can exclude. Take that possibility into account before finalizing your split, perhaps opting to sell the house before the divorce and splitting the tax-free profits as part of the final decree.

Similarly, you need to take into account the tax treatment of other assets when dividing them. For example, a spouse who gets capital gains assets will owe less tax than on property, such as tax-deferred retirement accounts, that are taxed at ordinary rates.

6. Relishing retirement Remember back when you got that first job? It's amazing how quickly you'll go from that momentous day to the equally notable one when you retire. Your golden years will be more enjoyable if you take advantage of the many tax breaks afforded by retirement plans.

A traditional IRA contribution could produce a tax deduction when you file your tax return. Remember, though, that you'll have to pay taxes on this account (at the normal ordinary tax rates) when you start taking out money in retirement.

With a Roth IRA, you put in already-taxed money, but that means eventual distributions from a Roth are tax-free. The biggest drawback to a Roth is that you can't open or contribute to a Roth if you make a lot of money. However, regardless of your income, you can convert a traditional IRA to a Roth.

Workplace retirement plans, usually known as 401(k)s or Roth 401(k)s, offer similar retirement saving options, but with a nice bonus. Many employers match some of your plan contributions, which helps your retirement savings grow more quickly.

Social Security benefits generally are tax-free as long as you don't have a lot of other income.

And if you do have to file a tax return when you're older, you can claim a larger standard deduction amount on the new Form 1040-SR simply because you're age 65 or older.

Well, there you have it. These half-dozen tax matters essentially are "This is Your Life on Taxes."

Taxes are there every day of your every day, so it pays to pay attention to them periodically, if not on a daily basis. And definitely note the tax effects when you experience and celebrate a major event in your life.

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[melissawalker01]

Does A 401k Go Through Probate?

The short answer is maybe. It depends on it a beneficiary was named for the 401(k). Best next step is to talk to probate attorney.

Ensuring your assets go to your intended beneficiaries is important. Retirement accounts such as 401(k) or IRAs, annuities, and life insurance policies are controlled by the beneficiary designation you have selected. These types of assets are not controlled by the terms of your will or trust. Your named beneficiaries on these types of assets will receive the account or policy at your death after completing a claim process. If your 401(k) or other beneficiary driven asset does not have a valid beneficiary designated at your death, the terms of the plan control where the asset goes. Generally, the default in such cases is ‘my estate.’ This means the 401(k) or other asset would have to go through a probate process before the terms of your will or trust would determine who ultimately receives the asset. It is generally not a good idea to name a minor as the beneficiary for these types of assets. The custodian or administrator will likely require a conservator be named for the minor to receive the account. If you would like to leave an asset to a minor it would be better to have a trust for the minor’s benefit in your estate planning so the trust can be named as the beneficiary of the account or policy. It is a good idea to review your beneficiary designations every five to ten years or at the occurrence of a major life event such as a marriage, birth of a child, divorce, or death. You can update your beneficiary designations by contacting the plan administrator or custodian, or your life insurance agent. You can also find beneficiary designation forms on line in many cases. Not all property is equal in a person’s estate.

Property can fall into different categories, with some property required to go through probate while other assets, such as retirement accounts, pass outside of the probate process. As a retirement account, a 401(k) falls into the category of “non-probate” property. A 401(k) has a named beneficiary who will receive the assets in the account upon the death of the account holder regardless of whether the account is mentioned in a will.

Final Will & Testament

A will is the bedrock of any estate plan, and the document has many uses. One of the primary purposes of a will is to direct how the assets in a person’s estate are to be distributed after his death. The clearer the language used in the will, the less likely there will be contentious probate litigation between heirs, named beneficiaries and other relatives. A will typically only addresses “probate” property, which includes assets whose ownership does not automatically transfer upon death, such as solely-owned real estate or automobiles. Non-probate property is not affected by the terms of a will, even if those assets are mentioned in the will itself.

Probate Process In Utah

When a person dies having left behind a valid, correctly-executed will, the probate process begins. This process entails the named executor of the estate marshaling a decedent’s assets and paying creditors and applicable taxes, distributing any remaining property to the people named as beneficiaries in the will. For many simple estates, this process can be completed within a few months, while larger; more complicated estates including those in which the will is being contested can take much longer, possibly even a few years. During that time, probate property is tied up in the court process and mostly unavailable to beneficiaries, while non-probate property is often distributed almost immediately.

Utah Non-Probate Property

There are many different types of non-probate property and retirement accounts fall into this category. Individual retirement accounts, 401(k) and most other forms of retirement plans are set up with a named beneficiary attached to the account. Most people set up retirement accounts for their own use, but naming a beneficiary ensures funds pass directly to that person upon the account holder’s death, if there are any funds left in the account at that time. Life insurance policies and joint bank accounts are other common forms of non-probate property.

Advantages for Beneficiaries

The biggest advantage of being a named beneficiary of non-probate property, like a 401(k) account, is that this type of property will not get tangled up in the probate process. The funds in a 401(k) account, for example, will be available to the named beneficiary almost immediately, even if the beneficiary is also designated to receive property being distributed through the probate process. The death of a loved one inevitably causes distress. However difficult it may be to focus on finances at such a time, there are certain things you’ll need to know especially for tax planning if you are the beneficiary of that person’s 401k plan.

How the 401k is treated for Tax Purposes

When a person dies, his or her 401k becomes part of his or her taxable estate. However, a beneficiary generally won’t have to wait until probate is completed to receive the account balance. You will need to pay income tax on the amount you receive (in addition to any estate tax owed), but there are different strategies you may be able to use to spread out or delay the tax burden, especially if you are the spouse. There are other considerations also. For example, you may qualify for a federal income tax deduction if the 401k account is also subject to federal estate tax, which will generally be the case if the taxable estate is over $650,000.

All 401k Plans Are Not Created Equal

When looking at your options for receiving money from a 401k plan as a beneficiary, it is important to realize that each 401k plan has its own set of rules. The IRS sets the outside limits of what plans may do, but a plan is allowed to be more restrictive than that general framework. For example, the IRS may say it is okay for you to leave your 401k inheritance in the account for years without touching it (or paying taxes on it), but the plan rules may stipulate that you take it out sooner. If you inherit someone’s 401k account, the first thing you should do is look at the plan document or summary plan description of the 401k plan to find out what rules will apply to your situation. It is a good idea to ask a tax professional for help, as this can be complicated. Rules may also differ depending on whether the person who died was your spouse, and whether he or she was already receiving periodic payments from the account.

How Retirement Accounts End Up in Probate

While in most cases retirement accounts don’t end up in probate, there are a few ways it can happen. This also means that debt collectors for an estate might be able to use the funds in a retirement account to settle their debts, too. This is why it is best to avoid these mistakes to keep retirement accounts free and clear of probate.

Naming a Minor as a Beneficiary

Money can be left to a minor, but they can’t use it until they come of age. In this situation, in order to avoid probate, someone already needs to be assigned to manage the money until the minor comes of age. If no such party is stated, the probate court will get involved to set up a court supervised custodial account.

No Alternate Beneficiaries

If your primary beneficiary is no longer living, if you have no alternate named, then it will need to go through probate. The funds then become part of the estate and are divvied out to everyone else.

Beneficiary is the Estate

If you name your estate as the beneficiary, the funds will be probated. This may cause creditor and tax issues. It is usually recommended that you not leave these types of funds to your estate. The probate process is never particularly easy. This is why it is nice that in most cases, retirement accounts are not included in it.

What Assets Must Go Through Probate?

Lots of assets, including real estate and retirement accounts, may not need to go through probate. Almost every person leaves behind some assets that don’t need to go through probate. So even if you do conduct a probate court proceeding for the estate, not everything will have to be included. That’s good news, because property that doesn’t have to go through probate can be transferred to the people who inherit it much more quickly.

Common Assets That Go Through Probate

Basically, probate is necessary only for property that was: • owned solely in the name of the deceased person; for example, real estate or a car titled in that person’s name alone, or • a share of property owned as “tenants in common”: for example, the deceased person’s interest in a warehouse owned with his brother as an investment. This property is commonly called the probate estate. If there are assets that require probate court proceedings, it’s the responsibility of the executor named in the will to open a case in probate court and shepherd it to its conclusion. If there’s no will, or the will doesn’t name an executor, the probate court will appoint someone to serve. Either way, the person in charge can hire a lawyer to help with the court proceeding, and pay the lawyer’s fee from money in the estate.

Assets That Don’t Need to Go Through Probate

Typically, many of the assets in an estate don’t need to go through probate. If the deceased person was married and owned most everything jointly, or did some planning to avoid probate, a probate court proceeding may not be necessary. Here are kinds of assets that don’t need to go through probate: • Retirement accounts; IRAs or 401(k)s, for example—for which a beneficiary was named • Life insurance proceeds (unless the estate is named as beneficiary, which is rare) • Property held in a living trust • Funds in a payable-on-death (POD) bank account • Securities registered in transfer-on-death (TOD) form • U.S. savings bonds registered in payable-on-death form • Co-owned U.S. savings bonds • Real estate subject to a valid transfer-on-death deed (allowed only in some states) • Pension plan distributions • Wages, salary, or commissions (up to a certain amount) due the deceased person • Property held in joint tenancy with right of survivorship • Property owned as tenants by the entirety with a spouse (not all states have this form of ownership) • Property held in community property with right of survivorship (allowed only in some community property states) • Cars or boats registered in transfer-on-death form (allowed only in some states) • Vehicles that go to immediate family members under state law • Household goods and other items that go to immediate family members under state law

In addition, most states offer simplified probate proceedings for estates of small value. The simpler process is commonly called “summary probate.” The executor can use the simpler process if the total property that is subject to probate is under a certain amount, which varies greatly from state to state. In some states, the limit is just a few thousand dollars; in others, it’s $200,000. Because you count only the property that must go through probate and exclude property that was jointly owned or held in trust, for example, some very large estates can take advantage of the “small estate” procedures. For example, say an estate consists of a $400,000 house that’s jointly owned, a $200,000 bank account for which a payable-on-death beneficiary has been named, a $100,000 IRA, and a solely owned car worth $10,000. The estate has a value of more than $700,000, but the only probate asset is the car and its value qualifies it for the small estate procedure in almost every state.

As you can see, there are tax implications no matter what strategy you choose for receiving the 401k funds you inherit. If you are the beneficiary of someone else’s 401k plan, you should consider consulting a tax professional who can help you determine what options you have for receiving the money, and the income tax consequences of the different options.

Free Consultation with Probate Lawyer in Utah

If you have a question about probate law or if you need to start or defend against a probate case in Utah call Ascent Law LLC (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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from Michael Anderson https://www.ascentlawfirm.com/does-a-401k-go-through-probate/ from Divorce Lawyer Nelson Farms Utah https://divorcelawyernelsonfarmsutah.tumblr.com/post/616516154299727872

[asafeatherwould]

Does A 401k Go Through Probate?

The short answer is maybe. It depends on it a beneficiary was named for the 401(k). Best next step is to talk to probate attorney.

Ensuring your assets go to your intended beneficiaries is important. Retirement accounts such as 401(k) or IRAs, annuities, and life insurance policies are controlled by the beneficiary designation you have selected. These types of assets are not controlled by the terms of your will or trust. Your named beneficiaries on these types of assets will receive the account or policy at your death after completing a claim process. If your 401(k) or other beneficiary driven asset does not have a valid beneficiary designated at your death, the terms of the plan control where the asset goes. Generally, the default in such cases is ‘my estate.’ This means the 401(k) or other asset would have to go through a probate process before the terms of your will or trust would determine who ultimately receives the asset. It is generally not a good idea to name a minor as the beneficiary for these types of assets. The custodian or administrator will likely require a conservator be named for the minor to receive the account. If you would like to leave an asset to a minor it would be better to have a trust for the minor’s benefit in your estate planning so the trust can be named as the beneficiary of the account or policy. It is a good idea to review your beneficiary designations every five to ten years or at the occurrence of a major life event such as a marriage, birth of a child, divorce, or death. You can update your beneficiary designations by contacting the plan administrator or custodian, or your life insurance agent. You can also find beneficiary designation forms on line in many cases. Not all property is equal in a person’s estate.

Property can fall into different categories, with some property required to go through probate while other assets, such as retirement accounts, pass outside of the probate process. As a retirement account, a 401(k) falls into the category of “non-probate” property. A 401(k) has a named beneficiary who will receive the assets in the account upon the death of the account holder regardless of whether the account is mentioned in a will.

Final Will & Testament

A will is the bedrock of any estate plan, and the document has many uses. One of the primary purposes of a will is to direct how the assets in a person’s estate are to be distributed after his death. The clearer the language used in the will, the less likely there will be contentious probate litigation between heirs, named beneficiaries and other relatives. A will typically only addresses “probate” property, which includes assets whose ownership does not automatically transfer upon death, such as solely-owned real estate or automobiles. Non-probate property is not affected by the terms of a will, even if those assets are mentioned in the will itself.

Probate Process In Utah

When a person dies having left behind a valid, correctly-executed will, the probate process begins. This process entails the named executor of the estate marshaling a decedent’s assets and paying creditors and applicable taxes, distributing any remaining property to the people named as beneficiaries in the will. For many simple estates, this process can be completed within a few months, while larger; more complicated estates including those in which the will is being contested can take much longer, possibly even a few years. During that time, probate property is tied up in the court process and mostly unavailable to beneficiaries, while non-probate property is often distributed almost immediately.

Utah Non-Probate Property

There are many different types of non-probate property and retirement accounts fall into this category. Individual retirement accounts, 401(k) and most other forms of retirement plans are set up with a named beneficiary attached to the account. Most people set up retirement accounts for their own use, but naming a beneficiary ensures funds pass directly to that person upon the account holder’s death, if there are any funds left in the account at that time. Life insurance policies and joint bank accounts are other common forms of non-probate property.

Advantages for Beneficiaries

The biggest advantage of being a named beneficiary of non-probate property, like a 401(k) account, is that this type of property will not get tangled up in the probate process. The funds in a 401(k) account, for example, will be available to the named beneficiary almost immediately, even if the beneficiary is also designated to receive property being distributed through the probate process. The death of a loved one inevitably causes distress. However difficult it may be to focus on finances at such a time, there are certain things you’ll need to know especially for tax planning if you are the beneficiary of that person’s 401k plan.

How the 401k is treated for Tax Purposes

When a person dies, his or her 401k becomes part of his or her taxable estate. However, a beneficiary generally won’t have to wait until probate is completed to receive the account balance. You will need to pay income tax on the amount you receive (in addition to any estate tax owed), but there are different strategies you may be able to use to spread out or delay the tax burden, especially if you are the spouse. There are other considerations also. For example, you may qualify for a federal income tax deduction if the 401k account is also subject to federal estate tax, which will generally be the case if the taxable estate is over $650,000.

All 401k Plans Are Not Created Equal

When looking at your options for receiving money from a 401k plan as a beneficiary, it is important to realize that each 401k plan has its own set of rules. The IRS sets the outside limits of what plans may do, but a plan is allowed to be more restrictive than that general framework. For example, the IRS may say it is okay for you to leave your 401k inheritance in the account for years without touching it (or paying taxes on it), but the plan rules may stipulate that you take it out sooner. If you inherit someone’s 401k account, the first thing you should do is look at the plan document or summary plan description of the 401k plan to find out what rules will apply to your situation. It is a good idea to ask a tax professional for help, as this can be complicated. Rules may also differ depending on whether the person who died was your spouse, and whether he or she was already receiving periodic payments from the account.

How Retirement Accounts End Up in Probate

While in most cases retirement accounts don’t end up in probate, there are a few ways it can happen. This also means that debt collectors for an estate might be able to use the funds in a retirement account to settle their debts, too. This is why it is best to avoid these mistakes to keep retirement accounts free and clear of probate.

Naming a Minor as a Beneficiary

Money can be left to a minor, but they can’t use it until they come of age. In this situation, in order to avoid probate, someone already needs to be assigned to manage the money until the minor comes of age. If no such party is stated, the probate court will get involved to set up a court supervised custodial account.

No Alternate Beneficiaries

If your primary beneficiary is no longer living, if you have no alternate named, then it will need to go through probate. The funds then become part of the estate and are divvied out to everyone else.

Beneficiary is the Estate

If you name your estate as the beneficiary, the funds will be probated. This may cause creditor and tax issues. It is usually recommended that you not leave these types of funds to your estate. The probate process is never particularly easy. This is why it is nice that in most cases, retirement accounts are not included in it.

What Assets Must Go Through Probate?

Lots of assets, including real estate and retirement accounts, may not need to go through probate. Almost every person leaves behind some assets that don’t need to go through probate. So even if you do conduct a probate court proceeding for the estate, not everything will have to be included. That’s good news, because property that doesn’t have to go through probate can be transferred to the people who inherit it much more quickly.

Common Assets That Go Through Probate

Basically, probate is necessary only for property that was: • owned solely in the name of the deceased person; for example, real estate or a car titled in that person’s name alone, or • a share of property owned as “tenants in common”: for example, the deceased person’s interest in a warehouse owned with his brother as an investment. This property is commonly called the probate estate. If there are assets that require probate court proceedings, it’s the responsibility of the executor named in the will to open a case in probate court and shepherd it to its conclusion. If there’s no will, or the will doesn’t name an executor, the probate court will appoint someone to serve. Either way, the person in charge can hire a lawyer to help with the court proceeding, and pay the lawyer’s fee from money in the estate.

Assets That Don’t Need to Go Through Probate

Typically, many of the assets in an estate don’t need to go through probate. If the deceased person was married and owned most everything jointly, or did some planning to avoid probate, a probate court proceeding may not be necessary. Here are kinds of assets that don’t need to go through probate: • Retirement accounts; IRAs or 401(k)s, for example—for which a beneficiary was named • Life insurance proceeds (unless the estate is named as beneficiary, which is rare) • Property held in a living trust • Funds in a payable-on-death (POD) bank account • Securities registered in transfer-on-death (TOD) form • U.S. savings bonds registered in payable-on-death form • Co-owned U.S. savings bonds • Real estate subject to a valid transfer-on-death deed (allowed only in some states) • Pension plan distributions • Wages, salary, or commissions (up to a certain amount) due the deceased person • Property held in joint tenancy with right of survivorship • Property owned as tenants by the entirety with a spouse (not all states have this form of ownership) • Property held in community property with right of survivorship (allowed only in some community property states) • Cars or boats registered in transfer-on-death form (allowed only in some states) • Vehicles that go to immediate family members under state law • Household goods and other items that go to immediate family members under state law

In addition, most states offer simplified probate proceedings for estates of small value. The simpler process is commonly called “summary probate.” The executor can use the simpler process if the total property that is subject to probate is under a certain amount, which varies greatly from state to state. In some states, the limit is just a few thousand dollars; in others, it’s $200,000. Because you count only the property that must go through probate and exclude property that was jointly owned or held in trust, for example, some very large estates can take advantage of the “small estate” procedures. For example, say an estate consists of a $400,000 house that’s jointly owned, a $200,000 bank account for which a payable-on-death beneficiary has been named, a $100,000 IRA, and a solely owned car worth $10,000. The estate has a value of more than $700,000, but the only probate asset is the car and its value qualifies it for the small estate procedure in almost every state.

As you can see, there are tax implications no matter what strategy you choose for receiving the 401k funds you inherit. If you are the beneficiary of someone else’s 401k plan, you should consider consulting a tax professional who can help you determine what options you have for receiving the money, and the income tax consequences of the different options.

Free Consultation with Probate Lawyer in Utah

If you have a question about probate law or if you need to start or defend against a probate case in Utah call Ascent Law LLC (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

Recent Posts

How Long Does Probate Court Take To Make A Decision?

Amicable Divorce

3 Laws Business Owners Need To Know

When You Need A Mediator And A Lawyer

ATV Accident Lawyer Layton Utah

Will Bankruptcy Show Up On My Credit Report?

Source: https://www.ascentlawfirm.com/does-a-401k-go-through-probate/

[michaeljames1221]

Does A 401k Go Through Probate?

The short answer is maybe. It depends on it a beneficiary was named for the 401(k). Best next step is to talk to probate attorney.

Ensuring your assets go to your intended beneficiaries is important. Retirement accounts such as 401(k) or IRAs, annuities, and life insurance policies are controlled by the beneficiary designation you have selected. These types of assets are not controlled by the terms of your will or trust. Your named beneficiaries on these types of assets will receive the account or policy at your death after completing a claim process. If your 401(k) or other beneficiary driven asset does not have a valid beneficiary designated at your death, the terms of the plan control where the asset goes. Generally, the default in such cases is ‘my estate.’ This means the 401(k) or other asset would have to go through a probate process before the terms of your will or trust would determine who ultimately receives the asset. It is generally not a good idea to name a minor as the beneficiary for these types of assets. The custodian or administrator will likely require a conservator be named for the minor to receive the account. If you would like to leave an asset to a minor it would be better to have a trust for the minor’s benefit in your estate planning so the trust can be named as the beneficiary of the account or policy. It is a good idea to review your beneficiary designations every five to ten years or at the occurrence of a major life event such as a marriage, birth of a child, divorce, or death. You can update your beneficiary designations by contacting the plan administrator or custodian, or your life insurance agent. You can also find beneficiary designation forms on line in many cases. Not all property is equal in a person’s estate.

Property can fall into different categories, with some property required to go through probate while other assets, such as retirement accounts, pass outside of the probate process. As a retirement account, a 401(k) falls into the category of “non-probate” property. A 401(k) has a named beneficiary who will receive the assets in the account upon the death of the account holder regardless of whether the account is mentioned in a will.

Final Will & Testament

A will is the bedrock of any estate plan, and the document has many uses. One of the primary purposes of a will is to direct how the assets in a person’s estate are to be distributed after his death. The clearer the language used in the will, the less likely there will be contentious probate litigation between heirs, named beneficiaries and other relatives. A will typically only addresses “probate” property, which includes assets whose ownership does not automatically transfer upon death, such as solely-owned real estate or automobiles. Non-probate property is not affected by the terms of a will, even if those assets are mentioned in the will itself.

Probate Process In Utah

When a person dies having left behind a valid, correctly-executed will, the probate process begins. This process entails the named executor of the estate marshaling a decedent’s assets and paying creditors and applicable taxes, distributing any remaining property to the people named as beneficiaries in the will. For many simple estates, this process can be completed within a few months, while larger; more complicated estates including those in which the will is being contested can take much longer, possibly even a few years. During that time, probate property is tied up in the court process and mostly unavailable to beneficiaries, while non-probate property is often distributed almost immediately.

Utah Non-Probate Property

There are many different types of non-probate property and retirement accounts fall into this category. Individual retirement accounts, 401(k) and most other forms of retirement plans are set up with a named beneficiary attached to the account. Most people set up retirement accounts for their own use, but naming a beneficiary ensures funds pass directly to that person upon the account holder’s death, if there are any funds left in the account at that time. Life insurance policies and joint bank accounts are other common forms of non-probate property.

Advantages for Beneficiaries

The biggest advantage of being a named beneficiary of non-probate property, like a 401(k) account, is that this type of property will not get tangled up in the probate process. The funds in a 401(k) account, for example, will be available to the named beneficiary almost immediately, even if the beneficiary is also designated to receive property being distributed through the probate process. The death of a loved one inevitably causes distress. However difficult it may be to focus on finances at such a time, there are certain things you’ll need to know especially for tax planning if you are the beneficiary of that person’s 401k plan.

How the 401k is treated for Tax Purposes

When a person dies, his or her 401k becomes part of his or her taxable estate. However, a beneficiary generally won’t have to wait until probate is completed to receive the account balance. You will need to pay income tax on the amount you receive (in addition to any estate tax owed), but there are different strategies you may be able to use to spread out or delay the tax burden, especially if you are the spouse. There are other considerations also. For example, you may qualify for a federal income tax deduction if the 401k account is also subject to federal estate tax, which will generally be the case if the taxable estate is over $650,000.

All 401k Plans Are Not Created Equal

When looking at your options for receiving money from a 401k plan as a beneficiary, it is important to realize that each 401k plan has its own set of rules. The IRS sets the outside limits of what plans may do, but a plan is allowed to be more restrictive than that general framework. For example, the IRS may say it is okay for you to leave your 401k inheritance in the account for years without touching it (or paying taxes on it), but the plan rules may stipulate that you take it out sooner. If you inherit someone’s 401k account, the first thing you should do is look at the plan document or summary plan description of the 401k plan to find out what rules will apply to your situation. It is a good idea to ask a tax professional for help, as this can be complicated. Rules may also differ depending on whether the person who died was your spouse, and whether he or she was already receiving periodic payments from the account.

How Retirement Accounts End Up in Probate

While in most cases retirement accounts don’t end up in probate, there are a few ways it can happen. This also means that debt collectors for an estate might be able to use the funds in a retirement account to settle their debts, too. This is why it is best to avoid these mistakes to keep retirement accounts free and clear of probate.

Naming a Minor as a Beneficiary

Money can be left to a minor, but they can’t use it until they come of age. In this situation, in order to avoid probate, someone already needs to be assigned to manage the money until the minor comes of age. If no such party is stated, the probate court will get involved to set up a court supervised custodial account.

No Alternate Beneficiaries

If your primary beneficiary is no longer living, if you have no alternate named, then it will need to go through probate. The funds then become part of the estate and are divvied out to everyone else.

Beneficiary is the Estate

If you name your estate as the beneficiary, the funds will be probated. This may cause creditor and tax issues. It is usually recommended that you not leave these types of funds to your estate. The probate process is never particularly easy. This is why it is nice that in most cases, retirement accounts are not included in it.

What Assets Must Go Through Probate?

Lots of assets, including real estate and retirement accounts, may not need to go through probate. Almost every person leaves behind some assets that don’t need to go through probate. So even if you do conduct a probate court proceeding for the estate, not everything will have to be included. That’s good news, because property that doesn’t have to go through probate can be transferred to the people who inherit it much more quickly.

Common Assets That Go Through Probate

Basically, probate is necessary only for property that was: • owned solely in the name of the deceased person; for example, real estate or a car titled in that person’s name alone, or • a share of property owned as “tenants in common”: for example, the deceased person’s interest in a warehouse owned with his brother as an investment. This property is commonly called the probate estate. If there are assets that require probate court proceedings, it’s the responsibility of the executor named in the will to open a case in probate court and shepherd it to its conclusion. If there’s no will, or the will doesn’t name an executor, the probate court will appoint someone to serve. Either way, the person in charge can hire a lawyer to help with the court proceeding, and pay the lawyer’s fee from money in the estate.

Assets That Don’t Need to Go Through Probate

Typically, many of the assets in an estate don’t need to go through probate. If the deceased person was married and owned most everything jointly, or did some planning to avoid probate, a probate court proceeding may not be necessary. Here are kinds of assets that don’t need to go through probate: • Retirement accounts; IRAs or 401(k)s, for example—for which a beneficiary was named • Life insurance proceeds (unless the estate is named as beneficiary, which is rare) • Property held in a living trust • Funds in a payable-on-death (POD) bank account • Securities registered in transfer-on-death (TOD) form • U.S. savings bonds registered in payable-on-death form • Co-owned U.S. savings bonds • Real estate subject to a valid transfer-on-death deed (allowed only in some states) • Pension plan distributions • Wages, salary, or commissions (up to a certain amount) due the deceased person • Property held in joint tenancy with right of survivorship • Property owned as tenants by the entirety with a spouse (not all states have this form of ownership) • Property held in community property with right of survivorship (allowed only in some community property states) • Cars or boats registered in transfer-on-death form (allowed only in some states) • Vehicles that go to immediate family members under state law • Household goods and other items that go to immediate family members under state law

In addition, most states offer simplified probate proceedings for estates of small value. The simpler process is commonly called “summary probate.” The executor can use the simpler process if the total property that is subject to probate is under a certain amount, which varies greatly from state to state. In some states, the limit is just a few thousand dollars; in others, it’s $200,000. Because you count only the property that must go through probate and exclude property that was jointly owned or held in trust, for example, some very large estates can take advantage of the “small estate” procedures. For example, say an estate consists of a $400,000 house that’s jointly owned, a $200,000 bank account for which a payable-on-death beneficiary has been named, a $100,000 IRA, and a solely owned car worth $10,000. The estate has a value of more than $700,000, but the only probate asset is the car and its value qualifies it for the small estate procedure in almost every state.

As you can see, there are tax implications no matter what strategy you choose for receiving the 401k funds you inherit. If you are the beneficiary of someone else’s 401k plan, you should consider consulting a tax professional who can help you determine what options you have for receiving the money, and the income tax consequences of the different options.

Free Consultation with Probate Lawyer in Utah

If you have a question about probate law or if you need to start or defend against a probate case in Utah call Ascent Law LLC (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

Recent Posts

How Long Does Probate Court Take To Make A Decision?

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from Michael Anderson https://www.ascentlawfirm.com/does-a-401k-go-through-probate/

from Criminal Defense Lawyer West Jordan Utah https://criminaldefenselawyerwestjordanutah.wordpress.com/2020/04/27/does-a-401k-go-through-probate/

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Does A 401k Go Through Probate?

The short answer is maybe. It depends on it a beneficiary was named for the 401(k). Best next step is to talk to probate attorney.

Ensuring your assets go to your intended beneficiaries is important. Retirement accounts such as 401(k) or IRAs, annuities, and life insurance policies are controlled by the beneficiary designation you have selected. These types of assets are not controlled by the terms of your will or trust. Your named beneficiaries on these types of assets will receive the account or policy at your death after completing a claim process. If your 401(k) or other beneficiary driven asset does not have a valid beneficiary designated at your death, the terms of the plan control where the asset goes. Generally, the default in such cases is ‘my estate.’ This means the 401(k) or other asset would have to go through a probate process before the terms of your will or trust would determine who ultimately receives the asset. It is generally not a good idea to name a minor as the beneficiary for these types of assets. The custodian or administrator will likely require a conservator be named for the minor to receive the account. If you would like to leave an asset to a minor it would be better to have a trust for the minor’s benefit in your estate planning so the trust can be named as the beneficiary of the account or policy. It is a good idea to review your beneficiary designations every five to ten years or at the occurrence of a major life event such as a marriage, birth of a child, divorce, or death. You can update your beneficiary designations by contacting the plan administrator or custodian, or your life insurance agent. You can also find beneficiary designation forms on line in many cases. Not all property is equal in a person’s estate.

Property can fall into different categories, with some property required to go through probate while other assets, such as retirement accounts, pass outside of the probate process. As a retirement account, a 401(k) falls into the category of “non-probate” property. A 401(k) has a named beneficiary who will receive the assets in the account upon the death of the account holder regardless of whether the account is mentioned in a will.

Final Will & Testament

A will is the bedrock of any estate plan, and the document has many uses. One of the primary purposes of a will is to direct how the assets in a person’s estate are to be distributed after his death. The clearer the language used in the will, the less likely there will be contentious probate litigation between heirs, named beneficiaries and other relatives. A will typically only addresses “probate” property, which includes assets whose ownership does not automatically transfer upon death, such as solely-owned real estate or automobiles. Non-probate property is not affected by the terms of a will, even if those assets are mentioned in the will itself.

Probate Process In Utah

When a person dies having left behind a valid, correctly-executed will, the probate process begins. This process entails the named executor of the estate marshaling a decedent’s assets and paying creditors and applicable taxes, distributing any remaining property to the people named as beneficiaries in the will. For many simple estates, this process can be completed within a few months, while larger; more complicated estates including those in which the will is being contested can take much longer, possibly even a few years. During that time, probate property is tied up in the court process and mostly unavailable to beneficiaries, while non-probate property is often distributed almost immediately.

Utah Non-Probate Property

There are many different types of non-probate property and retirement accounts fall into this category. Individual retirement accounts, 401(k) and most other forms of retirement plans are set up with a named beneficiary attached to the account. Most people set up retirement accounts for their own use, but naming a beneficiary ensures funds pass directly to that person upon the account holder’s death, if there are any funds left in the account at that time. Life insurance policies and joint bank accounts are other common forms of non-probate property.

Advantages for Beneficiaries

The biggest advantage of being a named beneficiary of non-probate property, like a 401(k) account, is that this type of property will not get tangled up in the probate process. The funds in a 401(k) account, for example, will be available to the named beneficiary almost immediately, even if the beneficiary is also designated to receive property being distributed through the probate process. The death of a loved one inevitably causes distress. However difficult it may be to focus on finances at such a time, there are certain things you’ll need to know especially for tax planning if you are the beneficiary of that person’s 401k plan.

How the 401k is treated for Tax Purposes

When a person dies, his or her 401k becomes part of his or her taxable estate. However, a beneficiary generally won’t have to wait until probate is completed to receive the account balance. You will need to pay income tax on the amount you receive (in addition to any estate tax owed), but there are different strategies you may be able to use to spread out or delay the tax burden, especially if you are the spouse. There are other considerations also. For example, you may qualify for a federal income tax deduction if the 401k account is also subject to federal estate tax, which will generally be the case if the taxable estate is over $650,000.

All 401k Plans Are Not Created Equal

When looking at your options for receiving money from a 401k plan as a beneficiary, it is important to realize that each 401k plan has its own set of rules. The IRS sets the outside limits of what plans may do, but a plan is allowed to be more restrictive than that general framework. For example, the IRS may say it is okay for you to leave your 401k inheritance in the account for years without touching it (or paying taxes on it), but the plan rules may stipulate that you take it out sooner. If you inherit someone’s 401k account, the first thing you should do is look at the plan document or summary plan description of the 401k plan to find out what rules will apply to your situation. It is a good idea to ask a tax professional for help, as this can be complicated. Rules may also differ depending on whether the person who died was your spouse, and whether he or she was already receiving periodic payments from the account.

How Retirement Accounts End Up in Probate

While in most cases retirement accounts don’t end up in probate, there are a few ways it can happen. This also means that debt collectors for an estate might be able to use the funds in a retirement account to settle their debts, too. This is why it is best to avoid these mistakes to keep retirement accounts free and clear of probate.

Naming a Minor as a Beneficiary

Money can be left to a minor, but they can’t use it until they come of age. In this situation, in order to avoid probate, someone already needs to be assigned to manage the money until the minor comes of age. If no such party is stated, the probate court will get involved to set up a court supervised custodial account.

No Alternate Beneficiaries

If your primary beneficiary is no longer living, if you have no alternate named, then it will need to go through probate. The funds then become part of the estate and are divvied out to everyone else.

Beneficiary is the Estate

If you name your estate as the beneficiary, the funds will be probated. This may cause creditor and tax issues. It is usually recommended that you not leave these types of funds to your estate. The probate process is never particularly easy. This is why it is nice that in most cases, retirement accounts are not included in it.

What Assets Must Go Through Probate?

Lots of assets, including real estate and retirement accounts, may not need to go through probate. Almost every person leaves behind some assets that don’t need to go through probate. So even if you do conduct a probate court proceeding for the estate, not everything will have to be included. That’s good news, because property that doesn’t have to go through probate can be transferred to the people who inherit it much more quickly.

Common Assets That Go Through Probate

Basically, probate is necessary only for property that was: • owned solely in the name of the deceased person; for example, real estate or a car titled in that person’s name alone, or • a share of property owned as “tenants in common”: for example, the deceased person’s interest in a warehouse owned with his brother as an investment. This property is commonly called the probate estate. If there are assets that require probate court proceedings, it’s the responsibility of the executor named in the will to open a case in probate court and shepherd it to its conclusion. If there’s no will, or the will doesn’t name an executor, the probate court will appoint someone to serve. Either way, the person in charge can hire a lawyer to help with the court proceeding, and pay the lawyer’s fee from money in the estate.

Assets That Don’t Need to Go Through Probate

Typically, many of the assets in an estate don’t need to go through probate. If the deceased person was married and owned most everything jointly, or did some planning to avoid probate, a probate court proceeding may not be necessary. Here are kinds of assets that don’t need to go through probate: • Retirement accounts; IRAs or 401(k)s, for example—for which a beneficiary was named • Life insurance proceeds (unless the estate is named as beneficiary, which is rare) • Property held in a living trust • Funds in a payable-on-death (POD) bank account • Securities registered in transfer-on-death (TOD) form • U.S. savings bonds registered in payable-on-death form • Co-owned U.S. savings bonds • Real estate subject to a valid transfer-on-death deed (allowed only in some states) • Pension plan distributions • Wages, salary, or commissions (up to a certain amount) due the deceased person • Property held in joint tenancy with right of survivorship • Property owned as tenants by the entirety with a spouse (not all states have this form of ownership) • Property held in community property with right of survivorship (allowed only in some community property states) • Cars or boats registered in transfer-on-death form (allowed only in some states) • Vehicles that go to immediate family members under state law • Household goods and other items that go to immediate family members under state law

In addition, most states offer simplified probate proceedings for estates of small value. The simpler process is commonly called “summary probate.” The executor can use the simpler process if the total property that is subject to probate is under a certain amount, which varies greatly from state to state. In some states, the limit is just a few thousand dollars; in others, it’s $200,000. Because you count only the property that must go through probate and exclude property that was jointly owned or held in trust, for example, some very large estates can take advantage of the “small estate” procedures. For example, say an estate consists of a $400,000 house that’s jointly owned, a $200,000 bank account for which a payable-on-death beneficiary has been named, a $100,000 IRA, and a solely owned car worth $10,000. The estate has a value of more than $700,000, but the only probate asset is the car and its value qualifies it for the small estate procedure in almost every state.

As you can see, there are tax implications no matter what strategy you choose for receiving the 401k funds you inherit. If you are the beneficiary of someone else’s 401k plan, you should consider consulting a tax professional who can help you determine what options you have for receiving the money, and the income tax consequences of the different options.

Free Consultation with Probate Lawyer in Utah

If you have a question about probate law or if you need to start or defend against a probate case in Utah call Ascent Law LLC (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

Recent Posts

How Long Does Probate Court Take To Make A Decision?

Amicable Divorce

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When You Need A Mediator And A Lawyer

ATV Accident Lawyer Layton Utah

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Source: https://www.ascentlawfirm.com/does-a-401k-go-through-probate/

[mayarosa47]

Does A 401k Go Through Probate?

The short answer is maybe. It depends on it a beneficiary was named for the 401(k). Best next step is to talk to probate attorney.

Ensuring your assets go to your intended beneficiaries is important. Retirement accounts such as 401(k) or IRAs, annuities, and life insurance policies are controlled by the beneficiary designation you have selected. These types of assets are not controlled by the terms of your will or trust. Your named beneficiaries on these types of assets will receive the account or policy at your death after completing a claim process. If your 401(k) or other beneficiary driven asset does not have a valid beneficiary designated at your death, the terms of the plan control where the asset goes. Generally, the default in such cases is ‘my estate.’ This means the 401(k) or other asset would have to go through a probate process before the terms of your will or trust would determine who ultimately receives the asset. It is generally not a good idea to name a minor as the beneficiary for these types of assets. The custodian or administrator will likely require a conservator be named for the minor to receive the account. If you would like to leave an asset to a minor it would be better to have a trust for the minor’s benefit in your estate planning so the trust can be named as the beneficiary of the account or policy. It is a good idea to review your beneficiary designations every five to ten years or at the occurrence of a major life event such as a marriage, birth of a child, divorce, or death. You can update your beneficiary designations by contacting the plan administrator or custodian, or your life insurance agent. You can also find beneficiary designation forms on line in many cases. Not all property is equal in a person’s estate.

Property can fall into different categories, with some property required to go through probate while other assets, such as retirement accounts, pass outside of the probate process. As a retirement account, a 401(k) falls into the category of “non-probate” property. A 401(k) has a named beneficiary who will receive the assets in the account upon the death of the account holder regardless of whether the account is mentioned in a will.

Final Will & Testament

A will is the bedrock of any estate plan, and the document has many uses. One of the primary purposes of a will is to direct how the assets in a person’s estate are to be distributed after his death. The clearer the language used in the will, the less likely there will be contentious probate litigation between heirs, named beneficiaries and other relatives. A will typically only addresses “probate” property, which includes assets whose ownership does not automatically transfer upon death, such as solely-owned real estate or automobiles. Non-probate property is not affected by the terms of a will, even if those assets are mentioned in the will itself.

Probate Process In Utah

When a person dies having left behind a valid, correctly-executed will, the probate process begins. This process entails the named executor of the estate marshaling a decedent’s assets and paying creditors and applicable taxes, distributing any remaining property to the people named as beneficiaries in the will. For many simple estates, this process can be completed within a few months, while larger; more complicated estates including those in which the will is being contested can take much longer, possibly even a few years. During that time, probate property is tied up in the court process and mostly unavailable to beneficiaries, while non-probate property is often distributed almost immediately.

Utah Non-Probate Property

There are many different types of non-probate property and retirement accounts fall into this category. Individual retirement accounts, 401(k) and most other forms of retirement plans are set up with a named beneficiary attached to the account. Most people set up retirement accounts for their own use, but naming a beneficiary ensures funds pass directly to that person upon the account holder’s death, if there are any funds left in the account at that time. Life insurance policies and joint bank accounts are other common forms of non-probate property.

Advantages for Beneficiaries

The biggest advantage of being a named beneficiary of non-probate property, like a 401(k) account, is that this type of property will not get tangled up in the probate process. The funds in a 401(k) account, for example, will be available to the named beneficiary almost immediately, even if the beneficiary is also designated to receive property being distributed through the probate process. The death of a loved one inevitably causes distress. However difficult it may be to focus on finances at such a time, there are certain things you’ll need to know especially for tax planning if you are the beneficiary of that person’s 401k plan.

How the 401k is treated for Tax Purposes

When a person dies, his or her 401k becomes part of his or her taxable estate. However, a beneficiary generally won’t have to wait until probate is completed to receive the account balance. You will need to pay income tax on the amount you receive (in addition to any estate tax owed), but there are different strategies you may be able to use to spread out or delay the tax burden, especially if you are the spouse. There are other considerations also. For example, you may qualify for a federal income tax deduction if the 401k account is also subject to federal estate tax, which will generally be the case if the taxable estate is over $650,000.

All 401k Plans Are Not Created Equal

When looking at your options for receiving money from a 401k plan as a beneficiary, it is important to realize that each 401k plan has its own set of rules. The IRS sets the outside limits of what plans may do, but a plan is allowed to be more restrictive than that general framework. For example, the IRS may say it is okay for you to leave your 401k inheritance in the account for years without touching it (or paying taxes on it), but the plan rules may stipulate that you take it out sooner. If you inherit someone’s 401k account, the first thing you should do is look at the plan document or summary plan description of the 401k plan to find out what rules will apply to your situation. It is a good idea to ask a tax professional for help, as this can be complicated. Rules may also differ depending on whether the person who died was your spouse, and whether he or she was already receiving periodic payments from the account.

How Retirement Accounts End Up in Probate

While in most cases retirement accounts don’t end up in probate, there are a few ways it can happen. This also means that debt collectors for an estate might be able to use the funds in a retirement account to settle their debts, too. This is why it is best to avoid these mistakes to keep retirement accounts free and clear of probate.

Naming a Minor as a Beneficiary

Money can be left to a minor, but they can’t use it until they come of age. In this situation, in order to avoid probate, someone already needs to be assigned to manage the money until the minor comes of age. If no such party is stated, the probate court will get involved to set up a court supervised custodial account.

No Alternate Beneficiaries

If your primary beneficiary is no longer living, if you have no alternate named, then it will need to go through probate. The funds then become part of the estate and are divvied out to everyone else.

Beneficiary is the Estate

If you name your estate as the beneficiary, the funds will be probated. This may cause creditor and tax issues. It is usually recommended that you not leave these types of funds to your estate. The probate process is never particularly easy. This is why it is nice that in most cases, retirement accounts are not included in it.

What Assets Must Go Through Probate?

Lots of assets, including real estate and retirement accounts, may not need to go through probate. Almost every person leaves behind some assets that don’t need to go through probate. So even if you do conduct a probate court proceeding for the estate, not everything will have to be included. That’s good news, because property that doesn’t have to go through probate can be transferred to the people who inherit it much more quickly.

Common Assets That Go Through Probate

Basically, probate is necessary only for property that was: • owned solely in the name of the deceased person; for example, real estate or a car titled in that person’s name alone, or • a share of property owned as “tenants in common”: for example, the deceased person’s interest in a warehouse owned with his brother as an investment. This property is commonly called the probate estate. If there are assets that require probate court proceedings, it’s the responsibility of the executor named in the will to open a case in probate court and shepherd it to its conclusion. If there’s no will, or the will doesn’t name an executor, the probate court will appoint someone to serve. Either way, the person in charge can hire a lawyer to help with the court proceeding, and pay the lawyer’s fee from money in the estate.

Assets That Don’t Need to Go Through Probate

Typically, many of the assets in an estate don’t need to go through probate. If the deceased person was married and owned most everything jointly, or did some planning to avoid probate, a probate court proceeding may not be necessary. Here are kinds of assets that don’t need to go through probate: • Retirement accounts; IRAs or 401(k)s, for example—for which a beneficiary was named • Life insurance proceeds (unless the estate is named as beneficiary, which is rare) • Property held in a living trust • Funds in a payable-on-death (POD) bank account • Securities registered in transfer-on-death (TOD) form • U.S. savings bonds registered in payable-on-death form • Co-owned U.S. savings bonds • Real estate subject to a valid transfer-on-death deed (allowed only in some states) • Pension plan distributions • Wages, salary, or commissions (up to a certain amount) due the deceased person • Property held in joint tenancy with right of survivorship • Property owned as tenants by the entirety with a spouse (not all states have this form of ownership) • Property held in community property with right of survivorship (allowed only in some community property states) • Cars or boats registered in transfer-on-death form (allowed only in some states) • Vehicles that go to immediate family members under state law • Household goods and other items that go to immediate family members under state law

In addition, most states offer simplified probate proceedings for estates of small value. The simpler process is commonly called “summary probate.” The executor can use the simpler process if the total property that is subject to probate is under a certain amount, which varies greatly from state to state. In some states, the limit is just a few thousand dollars; in others, it’s $200,000. Because you count only the property that must go through probate and exclude property that was jointly owned or held in trust, for example, some very large estates can take advantage of the “small estate” procedures. For example, say an estate consists of a $400,000 house that’s jointly owned, a $200,000 bank account for which a payable-on-death beneficiary has been named, a $100,000 IRA, and a solely owned car worth $10,000. The estate has a value of more than $700,000, but the only probate asset is the car and its value qualifies it for the small estate procedure in almost every state.

As you can see, there are tax implications no matter what strategy you choose for receiving the 401k funds you inherit. If you are the beneficiary of someone else’s 401k plan, you should consider consulting a tax professional who can help you determine what options you have for receiving the money, and the income tax consequences of the different options.

Free Consultation with Probate Lawyer in Utah

If you have a question about probate law or if you need to start or defend against a probate case in Utah call Ascent Law LLC (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

Recent Posts

How Long Does Probate Court Take To Make A Decision?

Amicable Divorce

3 Laws Business Owners Need To Know

When You Need A Mediator And A Lawyer

ATV Accident Lawyer Layton Utah

Will Bankruptcy Show Up On My Credit Report?

from https://www.ascentlawfirm.com/does-a-401k-go-through-probate/

from Criminal Defense Lawyer West Jordan Utah - Blog http://criminaldefenselawyerwestjordanutah.weebly.com/blog/does-a-401k-go-through-probate

[aretia]

Does A 401k Go Through Probate?

The short answer is maybe. It depends on it a beneficiary was named for the 401(k). Best next step is to talk to probate attorney.

Ensuring your assets go to your intended beneficiaries is important. Retirement accounts such as 401(k) or IRAs, annuities, and life insurance policies are controlled by the beneficiary designation you have selected. These types of assets are not controlled by the terms of your will or trust. Your named beneficiaries on these types of assets will receive the account or policy at your death after completing a claim process. If your 401(k) or other beneficiary driven asset does not have a valid beneficiary designated at your death, the terms of the plan control where the asset goes. Generally, the default in such cases is ‘my estate.’ This means the 401(k) or other asset would have to go through a probate process before the terms of your will or trust would determine who ultimately receives the asset. It is generally not a good idea to name a minor as the beneficiary for these types of assets. The custodian or administrator will likely require a conservator be named for the minor to receive the account. If you would like to leave an asset to a minor it would be better to have a trust for the minor’s benefit in your estate planning so the trust can be named as the beneficiary of the account or policy. It is a good idea to review your beneficiary designations every five to ten years or at the occurrence of a major life event such as a marriage, birth of a child, divorce, or death. You can update your beneficiary designations by contacting the plan administrator or custodian, or your life insurance agent. You can also find beneficiary designation forms on line in many cases. Not all property is equal in a person’s estate.

Property can fall into different categories, with some property required to go through probate while other assets, such as retirement accounts, pass outside of the probate process. As a retirement account, a 401(k) falls into the category of “non-probate” property. A 401(k) has a named beneficiary who will receive the assets in the account upon the death of the account holder regardless of whether the account is mentioned in a will.

Final Will & Testament

A will is the bedrock of any estate plan, and the document has many uses. One of the primary purposes of a will is to direct how the assets in a person’s estate are to be distributed after his death. The clearer the language used in the will, the less likely there will be contentious probate litigation between heirs, named beneficiaries and other relatives. A will typically only addresses “probate” property, which includes assets whose ownership does not automatically transfer upon death, such as solely-owned real estate or automobiles. Non-probate property is not affected by the terms of a will, even if those assets are mentioned in the will itself.

Probate Process In Utah

When a person dies having left behind a valid, correctly-executed will, the probate process begins. This process entails the named executor of the estate marshaling a decedent’s assets and paying creditors and applicable taxes, distributing any remaining property to the people named as beneficiaries in the will. For many simple estates, this process can be completed within a few months, while larger; more complicated estates including those in which the will is being contested can take much longer, possibly even a few years. During that time, probate property is tied up in the court process and mostly unavailable to beneficiaries, while non-probate property is often distributed almost immediately.

Utah Non-Probate Property

There are many different types of non-probate property and retirement accounts fall into this category. Individual retirement accounts, 401(k) and most other forms of retirement plans are set up with a named beneficiary attached to the account. Most people set up retirement accounts for their own use, but naming a beneficiary ensures funds pass directly to that person upon the account holder’s death, if there are any funds left in the account at that time. Life insurance policies and joint bank accounts are other common forms of non-probate property.

Advantages for Beneficiaries

The biggest advantage of being a named beneficiary of non-probate property, like a 401(k) account, is that this type of property will not get tangled up in the probate process. The funds in a 401(k) account, for example, will be available to the named beneficiary almost immediately, even if the beneficiary is also designated to receive property being distributed through the probate process. The death of a loved one inevitably causes distress. However difficult it may be to focus on finances at such a time, there are certain things you’ll need to know especially for tax planning if you are the beneficiary of that person’s 401k plan.

How the 401k is treated for Tax Purposes

When a person dies, his or her 401k becomes part of his or her taxable estate. However, a beneficiary generally won’t have to wait until probate is completed to receive the account balance. You will need to pay income tax on the amount you receive (in addition to any estate tax owed), but there are different strategies you may be able to use to spread out or delay the tax burden, especially if you are the spouse. There are other considerations also. For example, you may qualify for a federal income tax deduction if the 401k account is also subject to federal estate tax, which will generally be the case if the taxable estate is over $650,000.

All 401k Plans Are Not Created Equal

When looking at your options for receiving money from a 401k plan as a beneficiary, it is important to realize that each 401k plan has its own set of rules. The IRS sets the outside limits of what plans may do, but a plan is allowed to be more restrictive than that general framework. For example, the IRS may say it is okay for you to leave your 401k inheritance in the account for years without touching it (or paying taxes on it), but the plan rules may stipulate that you take it out sooner. If you inherit someone’s 401k account, the first thing you should do is look at the plan document or summary plan description of the 401k plan to find out what rules will apply to your situation. It is a good idea to ask a tax professional for help, as this can be complicated. Rules may also differ depending on whether the person who died was your spouse, and whether he or she was already receiving periodic payments from the account.

How Retirement Accounts End Up in Probate

While in most cases retirement accounts don’t end up in probate, there are a few ways it can happen. This also means that debt collectors for an estate might be able to use the funds in a retirement account to settle their debts, too. This is why it is best to avoid these mistakes to keep retirement accounts free and clear of probate.

Naming a Minor as a Beneficiary

Money can be left to a minor, but they can’t use it until they come of age. In this situation, in order to avoid probate, someone already needs to be assigned to manage the money until the minor comes of age. If no such party is stated, the probate court will get involved to set up a court supervised custodial account.

No Alternate Beneficiaries

If your primary beneficiary is no longer living, if you have no alternate named, then it will need to go through probate. The funds then become part of the estate and are divvied out to everyone else.

Beneficiary is the Estate

If you name your estate as the beneficiary, the funds will be probated. This may cause creditor and tax issues. It is usually recommended that you not leave these types of funds to your estate. The probate process is never particularly easy. This is why it is nice that in most cases, retirement accounts are not included in it.

What Assets Must Go Through Probate?

Lots of assets, including real estate and retirement accounts, may not need to go through probate. Almost every person leaves behind some assets that don’t need to go through probate. So even if you do conduct a probate court proceeding for the estate, not everything will have to be included. That’s good news, because property that doesn’t have to go through probate can be transferred to the people who inherit it much more quickly.

Common Assets That Go Through Probate

Basically, probate is necessary only for property that was: • owned solely in the name of the deceased person; for example, real estate or a car titled in that person’s name alone, or • a share of property owned as “tenants in common”: for example, the deceased person’s interest in a warehouse owned with his brother as an investment. This property is commonly called the probate estate. If there are assets that require probate court proceedings, it’s the responsibility of the executor named in the will to open a case in probate court and shepherd it to its conclusion. If there’s no will, or the will doesn’t name an executor, the probate court will appoint someone to serve. Either way, the person in charge can hire a lawyer to help with the court proceeding, and pay the lawyer’s fee from money in the estate.

Assets That Don’t Need to Go Through Probate

Typically, many of the assets in an estate don’t need to go through probate. If the deceased person was married and owned most everything jointly, or did some planning to avoid probate, a probate court proceeding may not be necessary. Here are kinds of assets that don’t need to go through probate: • Retirement accounts; IRAs or 401(k)s, for example—for which a beneficiary was named • Life insurance proceeds (unless the estate is named as beneficiary, which is rare) • Property held in a living trust • Funds in a payable-on-death (POD) bank account • Securities registered in transfer-on-death (TOD) form • U.S. savings bonds registered in payable-on-death form • Co-owned U.S. savings bonds • Real estate subject to a valid transfer-on-death deed (allowed only in some states) • Pension plan distributions • Wages, salary, or commissions (up to a certain amount) due the deceased person • Property held in joint tenancy with right of survivorship • Property owned as tenants by the entirety with a spouse (not all states have this form of ownership) • Property held in community property with right of survivorship (allowed only in some community property states) • Cars or boats registered in transfer-on-death form (allowed only in some states) • Vehicles that go to immediate family members under state law • Household goods and other items that go to immediate family members under state law

In addition, most states offer simplified probate proceedings for estates of small value. The simpler process is commonly called “summary probate.” The executor can use the simpler process if the total property that is subject to probate is under a certain amount, which varies greatly from state to state. In some states, the limit is just a few thousand dollars; in others, it’s $200,000. Because you count only the property that must go through probate and exclude property that was jointly owned or held in trust, for example, some very large estates can take advantage of the “small estate” procedures. For example, say an estate consists of a $400,000 house that’s jointly owned, a $200,000 bank account for which a payable-on-death beneficiary has been named, a $100,000 IRA, and a solely owned car worth $10,000. The estate has a value of more than $700,000, but the only probate asset is the car and its value qualifies it for the small estate procedure in almost every state.

As you can see, there are tax implications no matter what strategy you choose for receiving the 401k funds you inherit. If you are the beneficiary of someone else’s 401k plan, you should consider consulting a tax professional who can help you determine what options you have for receiving the money, and the income tax consequences of the different options.

Free Consultation with Probate Lawyer in Utah

If you have a question about probate law or if you need to start or defend against a probate case in Utah call Ascent Law LLC (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

Recent Posts

How Long Does Probate Court Take To Make A Decision?

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Will Bankruptcy Show Up On My Credit Report?

Source: https://www.ascentlawfirm.com/does-a-401k-go-through-probate/

[gonnagoandrunwiththehorses]

Does A 401k Go Through Probate?

The short answer is maybe. It depends on it a beneficiary was named for the 401(k). Best next step is to talk to probate attorney.

Ensuring your assets go to your intended beneficiaries is important. Retirement accounts such as 401(k) or IRAs, annuities, and life insurance policies are controlled by the beneficiary designation you have selected. These types of assets are not controlled by the terms of your will or trust. Your named beneficiaries on these types of assets will receive the account or policy at your death after completing a claim process. If your 401(k) or other beneficiary driven asset does not have a valid beneficiary designated at your death, the terms of the plan control where the asset goes. Generally, the default in such cases is ‘my estate.’ This means the 401(k) or other asset would have to go through a probate process before the terms of your will or trust would determine who ultimately receives the asset. It is generally not a good idea to name a minor as the beneficiary for these types of assets. The custodian or administrator will likely require a conservator be named for the minor to receive the account. If you would like to leave an asset to a minor it would be better to have a trust for the minor’s benefit in your estate planning so the trust can be named as the beneficiary of the account or policy. It is a good idea to review your beneficiary designations every five to ten years or at the occurrence of a major life event such as a marriage, birth of a child, divorce, or death. You can update your beneficiary designations by contacting the plan administrator or custodian, or your life insurance agent. You can also find beneficiary designation forms on line in many cases. Not all property is equal in a person’s estate.

Property can fall into different categories, with some property required to go through probate while other assets, such as retirement accounts, pass outside of the probate process. As a retirement account, a 401(k) falls into the category of “non-probate” property. A 401(k) has a named beneficiary who will receive the assets in the account upon the death of the account holder regardless of whether the account is mentioned in a will.

Final Will & Testament

A will is the bedrock of any estate plan, and the document has many uses. One of the primary purposes of a will is to direct how the assets in a person’s estate are to be distributed after his death. The clearer the language used in the will, the less likely there will be contentious probate litigation between heirs, named beneficiaries and other relatives. A will typically only addresses “probate” property, which includes assets whose ownership does not automatically transfer upon death, such as solely-owned real estate or automobiles. Non-probate property is not affected by the terms of a will, even if those assets are mentioned in the will itself.

Probate Process In Utah

When a person dies having left behind a valid, correctly-executed will, the probate process begins. This process entails the named executor of the estate marshaling a decedent’s assets and paying creditors and applicable taxes, distributing any remaining property to the people named as beneficiaries in the will. For many simple estates, this process can be completed within a few months, while larger; more complicated estates including those in which the will is being contested can take much longer, possibly even a few years. During that time, probate property is tied up in the court process and mostly unavailable to beneficiaries, while non-probate property is often distributed almost immediately.

Utah Non-Probate Property

There are many different types of non-probate property and retirement accounts fall into this category. Individual retirement accounts, 401(k) and most other forms of retirement plans are set up with a named beneficiary attached to the account. Most people set up retirement accounts for their own use, but naming a beneficiary ensures funds pass directly to that person upon the account holder’s death, if there are any funds left in the account at that time. Life insurance policies and joint bank accounts are other common forms of non-probate property.

Advantages for Beneficiaries

The biggest advantage of being a named beneficiary of non-probate property, like a 401(k) account, is that this type of property will not get tangled up in the probate process. The funds in a 401(k) account, for example, will be available to the named beneficiary almost immediately, even if the beneficiary is also designated to receive property being distributed through the probate process. The death of a loved one inevitably causes distress. However difficult it may be to focus on finances at such a time, there are certain things you’ll need to know especially for tax planning if you are the beneficiary of that person’s 401k plan.

How the 401k is treated for Tax Purposes

When a person dies, his or her 401k becomes part of his or her taxable estate. However, a beneficiary generally won’t have to wait until probate is completed to receive the account balance. You will need to pay income tax on the amount you receive (in addition to any estate tax owed), but there are different strategies you may be able to use to spread out or delay the tax burden, especially if you are the spouse. There are other considerations also. For example, you may qualify for a federal income tax deduction if the 401k account is also subject to federal estate tax, which will generally be the case if the taxable estate is over $650,000.

All 401k Plans Are Not Created Equal

When looking at your options for receiving money from a 401k plan as a beneficiary, it is important to realize that each 401k plan has its own set of rules. The IRS sets the outside limits of what plans may do, but a plan is allowed to be more restrictive than that general framework. For example, the IRS may say it is okay for you to leave your 401k inheritance in the account for years without touching it (or paying taxes on it), but the plan rules may stipulate that you take it out sooner. If you inherit someone’s 401k account, the first thing you should do is look at the plan document or summary plan description of the 401k plan to find out what rules will apply to your situation. It is a good idea to ask a tax professional for help, as this can be complicated. Rules may also differ depending on whether the person who died was your spouse, and whether he or she was already receiving periodic payments from the account.

How Retirement Accounts End Up in Probate

While in most cases retirement accounts don’t end up in probate, there are a few ways it can happen. This also means that debt collectors for an estate might be able to use the funds in a retirement account to settle their debts, too. This is why it is best to avoid these mistakes to keep retirement accounts free and clear of probate.

Naming a Minor as a Beneficiary

Money can be left to a minor, but they can’t use it until they come of age. In this situation, in order to avoid probate, someone already needs to be assigned to manage the money until the minor comes of age. If no such party is stated, the probate court will get involved to set up a court supervised custodial account.

No Alternate Beneficiaries

If your primary beneficiary is no longer living, if you have no alternate named, then it will need to go through probate. The funds then become part of the estate and are divvied out to everyone else.

Beneficiary is the Estate

If you name your estate as the beneficiary, the funds will be probated. This may cause creditor and tax issues. It is usually recommended that you not leave these types of funds to your estate. The probate process is never particularly easy. This is why it is nice that in most cases, retirement accounts are not included in it.

What Assets Must Go Through Probate?

Lots of assets, including real estate and retirement accounts, may not need to go through probate. Almost every person leaves behind some assets that don’t need to go through probate. So even if you do conduct a probate court proceeding for the estate, not everything will have to be included. That’s good news, because property that doesn’t have to go through probate can be transferred to the people who inherit it much more quickly.

Common Assets That Go Through Probate

Basically, probate is necessary only for property that was: • owned solely in the name of the deceased person; for example, real estate or a car titled in that person’s name alone, or • a share of property owned as “tenants in common”: for example, the deceased person’s interest in a warehouse owned with his brother as an investment. This property is commonly called the probate estate. If there are assets that require probate court proceedings, it’s the responsibility of the executor named in the will to open a case in probate court and shepherd it to its conclusion. If there’s no will, or the will doesn’t name an executor, the probate court will appoint someone to serve. Either way, the person in charge can hire a lawyer to help with the court proceeding, and pay the lawyer’s fee from money in the estate.

Assets That Don’t Need to Go Through Probate

Typically, many of the assets in an estate don’t need to go through probate. If the deceased person was married and owned most everything jointly, or did some planning to avoid probate, a probate court proceeding may not be necessary. Here are kinds of assets that don’t need to go through probate: • Retirement accounts; IRAs or 401(k)s, for example—for which a beneficiary was named • Life insurance proceeds (unless the estate is named as beneficiary, which is rare) • Property held in a living trust • Funds in a payable-on-death (POD) bank account • Securities registered in transfer-on-death (TOD) form • U.S. savings bonds registered in payable-on-death form • Co-owned U.S. savings bonds • Real estate subject to a valid transfer-on-death deed (allowed only in some states) • Pension plan distributions • Wages, salary, or commissions (up to a certain amount) due the deceased person • Property held in joint tenancy with right of survivorship • Property owned as tenants by the entirety with a spouse (not all states have this form of ownership) • Property held in community property with right of survivorship (allowed only in some community property states) • Cars or boats registered in transfer-on-death form (allowed only in some states) • Vehicles that go to immediate family members under state law • Household goods and other items that go to immediate family members under state law

In addition, most states offer simplified probate proceedings for estates of small value. The simpler process is commonly called “summary probate.” The executor can use the simpler process if the total property that is subject to probate is under a certain amount, which varies greatly from state to state. In some states, the limit is just a few thousand dollars; in others, it’s $200,000. Because you count only the property that must go through probate and exclude property that was jointly owned or held in trust, for example, some very large estates can take advantage of the “small estate” procedures. For example, say an estate consists of a $400,000 house that’s jointly owned, a $200,000 bank account for which a payable-on-death beneficiary has been named, a $100,000 IRA, and a solely owned car worth $10,000. The estate has a value of more than $700,000, but the only probate asset is the car and its value qualifies it for the small estate procedure in almost every state.

As you can see, there are tax implications no matter what strategy you choose for receiving the 401k funds you inherit. If you are the beneficiary of someone else’s 401k plan, you should consider consulting a tax professional who can help you determine what options you have for receiving the money, and the income tax consequences of the different options.

Free Consultation with Probate Lawyer in Utah

If you have a question about probate law or if you need to start or defend against a probate case in Utah call Ascent Law LLC (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

Recent Posts

How Long Does Probate Court Take To Make A Decision?

Amicable Divorce

3 Laws Business Owners Need To Know

When You Need A Mediator And A Lawyer

ATV Accident Lawyer Layton Utah

Will Bankruptcy Show Up On My Credit Report?

Source: https://www.ascentlawfirm.com/does-a-401k-go-through-probate/

[coming-from-hell]

Does A 401k Go Through Probate?

The short answer is maybe. It depends on it a beneficiary was named for the 401(k). Best next step is to talk to probate attorney.

Ensuring your assets go to your intended beneficiaries is important. Retirement accounts such as 401(k) or IRAs, annuities, and life insurance policies are controlled by the beneficiary designation you have selected. These types of assets are not controlled by the terms of your will or trust. Your named beneficiaries on these types of assets will receive the account or policy at your death after completing a claim process. If your 401(k) or other beneficiary driven asset does not have a valid beneficiary designated at your death, the terms of the plan control where the asset goes. Generally, the default in such cases is ‘my estate.’ This means the 401(k) or other asset would have to go through a probate process before the terms of your will or trust would determine who ultimately receives the asset. It is generally not a good idea to name a minor as the beneficiary for these types of assets. The custodian or administrator will likely require a conservator be named for the minor to receive the account. If you would like to leave an asset to a minor it would be better to have a trust for the minor’s benefit in your estate planning so the trust can be named as the beneficiary of the account or policy. It is a good idea to review your beneficiary designations every five to ten years or at the occurrence of a major life event such as a marriage, birth of a child, divorce, or death. You can update your beneficiary designations by contacting the plan administrator or custodian, or your life insurance agent. You can also find beneficiary designation forms on line in many cases. Not all property is equal in a person’s estate.

Property can fall into different categories, with some property required to go through probate while other assets, such as retirement accounts, pass outside of the probate process. As a retirement account, a 401(k) falls into the category of “non-probate” property. A 401(k) has a named beneficiary who will receive the assets in the account upon the death of the account holder regardless of whether the account is mentioned in a will.

Final Will & Testament

A will is the bedrock of any estate plan, and the document has many uses. One of the primary purposes of a will is to direct how the assets in a person’s estate are to be distributed after his death. The clearer the language used in the will, the less likely there will be contentious probate litigation between heirs, named beneficiaries and other relatives. A will typically only addresses “probate” property, which includes assets whose ownership does not automatically transfer upon death, such as solely-owned real estate or automobiles. Non-probate property is not affected by the terms of a will, even if those assets are mentioned in the will itself.

Probate Process In Utah

When a person dies having left behind a valid, correctly-executed will, the probate process begins. This process entails the named executor of the estate marshaling a decedent’s assets and paying creditors and applicable taxes, distributing any remaining property to the people named as beneficiaries in the will. For many simple estates, this process can be completed within a few months, while larger; more complicated estates including those in which the will is being contested can take much longer, possibly even a few years. During that time, probate property is tied up in the court process and mostly unavailable to beneficiaries, while non-probate property is often distributed almost immediately.

Utah Non-Probate Property

There are many different types of non-probate property and retirement accounts fall into this category. Individual retirement accounts, 401(k) and most other forms of retirement plans are set up with a named beneficiary attached to the account. Most people set up retirement accounts for their own use, but naming a beneficiary ensures funds pass directly to that person upon the account holder’s death, if there are any funds left in the account at that time. Life insurance policies and joint bank accounts are other common forms of non-probate property.

Advantages for Beneficiaries

The biggest advantage of being a named beneficiary of non-probate property, like a 401(k) account, is that this type of property will not get tangled up in the probate process. The funds in a 401(k) account, for example, will be available to the named beneficiary almost immediately, even if the beneficiary is also designated to receive property being distributed through the probate process. The death of a loved one inevitably causes distress. However difficult it may be to focus on finances at such a time, there are certain things you’ll need to know especially for tax planning if you are the beneficiary of that person’s 401k plan.

How the 401k is treated for Tax Purposes

When a person dies, his or her 401k becomes part of his or her taxable estate. However, a beneficiary generally won’t have to wait until probate is completed to receive the account balance. You will need to pay income tax on the amount you receive (in addition to any estate tax owed), but there are different strategies you may be able to use to spread out or delay the tax burden, especially if you are the spouse. There are other considerations also. For example, you may qualify for a federal income tax deduction if the 401k account is also subject to federal estate tax, which will generally be the case if the taxable estate is over $650,000.

All 401k Plans Are Not Created Equal

When looking at your options for receiving money from a 401k plan as a beneficiary, it is important to realize that each 401k plan has its own set of rules. The IRS sets the outside limits of what plans may do, but a plan is allowed to be more restrictive than that general framework. For example, the IRS may say it is okay for you to leave your 401k inheritance in the account for years without touching it (or paying taxes on it), but the plan rules may stipulate that you take it out sooner. If you inherit someone’s 401k account, the first thing you should do is look at the plan document or summary plan description of the 401k plan to find out what rules will apply to your situation. It is a good idea to ask a tax professional for help, as this can be complicated. Rules may also differ depending on whether the person who died was your spouse, and whether he or she was already receiving periodic payments from the account.

How Retirement Accounts End Up in Probate

While in most cases retirement accounts don’t end up in probate, there are a few ways it can happen. This also means that debt collectors for an estate might be able to use the funds in a retirement account to settle their debts, too. This is why it is best to avoid these mistakes to keep retirement accounts free and clear of probate.

Naming a Minor as a Beneficiary

Money can be left to a minor, but they can’t use it until they come of age. In this situation, in order to avoid probate, someone already needs to be assigned to manage the money until the minor comes of age. If no such party is stated, the probate court will get involved to set up a court supervised custodial account.

No Alternate Beneficiaries

If your primary beneficiary is no longer living, if you have no alternate named, then it will need to go through probate. The funds then become part of the estate and are divvied out to everyone else.

Beneficiary is the Estate

If you name your estate as the beneficiary, the funds will be probated. This may cause creditor and tax issues. It is usually recommended that you not leave these types of funds to your estate. The probate process is never particularly easy. This is why it is nice that in most cases, retirement accounts are not included in it.

What Assets Must Go Through Probate?

Lots of assets, including real estate and retirement accounts, may not need to go through probate. Almost every person leaves behind some assets that don’t need to go through probate. So even if you do conduct a probate court proceeding for the estate, not everything will have to be included. That’s good news, because property that doesn’t have to go through probate can be transferred to the people who inherit it much more quickly.

Common Assets That Go Through Probate

Basically, probate is necessary only for property that was: • owned solely in the name of the deceased person; for example, real estate or a car titled in that person’s name alone, or • a share of property owned as “tenants in common”: for example, the deceased person’s interest in a warehouse owned with his brother as an investment. This property is commonly called the probate estate. If there are assets that require probate court proceedings, it’s the responsibility of the executor named in the will to open a case in probate court and shepherd it to its conclusion. If there’s no will, or the will doesn’t name an executor, the probate court will appoint someone to serve. Either way, the person in charge can hire a lawyer to help with the court proceeding, and pay the lawyer’s fee from money in the estate.

Assets That Don’t Need to Go Through Probate

Typically, many of the assets in an estate don’t need to go through probate. If the deceased person was married and owned most everything jointly, or did some planning to avoid probate, a probate court proceeding may not be necessary. Here are kinds of assets that don’t need to go through probate: • Retirement accounts; IRAs or 401(k)s, for example—for which a beneficiary was named • Life insurance proceeds (unless the estate is named as beneficiary, which is rare) • Property held in a living trust • Funds in a payable-on-death (POD) bank account • Securities registered in transfer-on-death (TOD) form • U.S. savings bonds registered in payable-on-death form • Co-owned U.S. savings bonds • Real estate subject to a valid transfer-on-death deed (allowed only in some states) • Pension plan distributions • Wages, salary, or commissions (up to a certain amount) due the deceased person • Property held in joint tenancy with right of survivorship • Property owned as tenants by the entirety with a spouse (not all states have this form of ownership) • Property held in community property with right of survivorship (allowed only in some community property states) • Cars or boats registered in transfer-on-death form (allowed only in some states) • Vehicles that go to immediate family members under state law • Household goods and other items that go to immediate family members under state law

In addition, most states offer simplified probate proceedings for estates of small value. The simpler process is commonly called “summary probate.” The executor can use the simpler process if the total property that is subject to probate is under a certain amount, which varies greatly from state to state. In some states, the limit is just a few thousand dollars; in others, it’s $200,000. Because you count only the property that must go through probate and exclude property that was jointly owned or held in trust, for example, some very large estates can take advantage of the “small estate” procedures. For example, say an estate consists of a $400,000 house that’s jointly owned, a $200,000 bank account for which a payable-on-death beneficiary has been named, a $100,000 IRA, and a solely owned car worth $10,000. The estate has a value of more than $700,000, but the only probate asset is the car and its value qualifies it for the small estate procedure in almost every state.

As you can see, there are tax implications no matter what strategy you choose for receiving the 401k funds you inherit. If you are the beneficiary of someone else’s 401k plan, you should consider consulting a tax professional who can help you determine what options you have for receiving the money, and the income tax consequences of the different options.

Free Consultation with Probate Lawyer in Utah

If you have a question about probate law or if you need to start or defend against a probate case in Utah call Ascent Law LLC (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/does-a-401k-go-through-probate/