Stephen Hughes 9/29/24 Stephen Hughes 9/29/24

MATT MILES ATTORNEY INTERVIEW

Stephen Hughes: Hey, everyone. Welcome back to the YouTube channel. It's your host, Stephen Hughes, the Hardship Real Estate Pro. Today, I have a special guest. It's the first time the channel has been created. I do have an attorney, and I know we will talk a little about preventing probate. If you've been on the channel, you've probably seen I've talked a little about that.

Of course, you see, I talked about some other issues and concerns and benefits and services to seniors, but we're going to go ahead and have our guests introduce themselves and tell us a little bit about what they do in the practice of law. If you want to go ahead, that'd be great.

Matt Miles: Perfect. Well, thanks, Stephen.

I appreciate the introduction and am happy to be here, have a chance to visit with you and the channel, and hopefully answer some basic questions about probate estate planning as a whole. My name is Matt Miles again. I'm an attorney at Ford Miles in Ogden, Utah, and have been practicing for seven years.

After graduating from law school at the University of Utah, I joined the firm. I grew up in Ogden and practice with my dad here at Ogden, an estate planning attorney who does estate settlements like I do. I joined him, his experience, and the other attorneys here.

I love the Ogden-Weber County area and enjoy practicing here. But I'm happy to answer some questions. Let's talk today a little bit about probate avoidance. Lots of people have heard about probate, and it can be intimidating and a long and drawn-out process.

So, if possible, it's a great thing to avoid for your loved ones.

Stephen Hughes: you know, It's kind of funny within my side of things, there's a big push within the real estate space to kind of get into probate, and it's one of a couple of ways I got into working with seniors, and I think of course I know some of the common misconceptions like Oh if I have a will, I won't go through probate. No, you will still go through probate. So maybe we can talk about what probate exactly means.

So there's really basic stuff, and you know, how do we prevent that probate process, and why should they prevent it?

Matt Miles: Sure., thoseare two great questions. Let's start there. Before I jump into it., letme just Be clear that this isn't legal advice.

This is my disclaimer at the beginning. This isn't legal advice. I'm talking in general terms. And obviously, I'm only licensed to practice in Utah. If you're outside of Utah, you may need to find further advice but seek advice from your own attorney. This will give you some basic information as you research these different topics.

So first of all, what is probate? As I like to describe it, probate is the process of having someone appointed by the court to settle a deceased individual's estate. So you lose a loved one, your mom or dad passed away, and somebody needs to be appointed to be able to access bank accounts, to be able to deal with retirement, to sell a home, whatever those different things may be.

Probate is the actual legal process of appearing in front of a judge. Sending out appropriate notice and getting appointed or having someone appointed as, as it's referred to in the state of Utah, a personal representative, also known as an executor or an administrator, but in Utah, it's referred to as a personal representative so that you have the authority to execute documents on behalf of your deceased loved one.

Probate can be a long process, but ultimately, the goal is to get somebody appointed to handle those things.

So the idea is, how can we avoid having to go to court, pay the attorney's fees, send notices to family members, and endure the lengthy process.?Typically, when you file for probate to get somebody appointed, it can take anywhere from six weeks to six months.

That's a long time since we've talked about a house and bank accounts sitting. Again, if we can avoid that, it's a great thing to do.

Matt Miles: Before we discuss how to avoid it, let's discuss when probate is necessary. Stephen, you mentioned that people have this idea that if I have a will, I don't have to go through probate.

That's not necessarily the case. Sometimes it is. And so I want to clarify how that works. So, currently, in ttah, if your estate is worth your estate, it is the assets tou own at your death. If your estate is worth more than $100,000 or the kicker here, or if you own real property and most of the time as it relates to you, Stephen, and real estate, it's because there is real property, right?

So if you die owning real property, whether it's a lot worth 5,000 or a house worth a million. That estate, your estate, will have to be probed because somebody has to be appointed to be able to sign the real estate documents to sell that piece of property. The two ways you end up in probate, whether you have a will or do not have a will, is if your estate is worth more than $100,000 or if you own real property.

A house, a cabin, land, something of that nature.

Now, probate can be avoided entirely if that piece of property or your assets are not owned in your name when you die But instead are owned in a trust. So, the most common way to avoid probate is to take your assets, like your house, and have them held in a trust, which, typically speaking, you will be the owner of and the controller of.

The terms we use in the trust world are you're the grantor, the person who created the trust, and you're also the trustee, the individual who's in charge of your trust. We would set up a trust in which you own the assets. You control the assets. You do with them what you want while you're alive.

The kicker is, or the real benefit is, that trust law allows you to name somebody as your successor to take over automatically when you die. And that happens by virtue of a death certificate. And it happens automatically without having to have a court order. So just that alone, by having your home owned in a trust and your other assets owned in a trust, you've now just saved your loved ones and family, you know, six weeks to six months of a headache.

And, you know, the court filing fees, the attorney's fees, and it's, the cost is different everywhere... thousand, five thousand, depending on who and what and how litigious the probate is. but that headache can be avoided by placing your assets in a trust.

Now we'll get into this, I'm sure a little bit later, but then, your trust should direct your trustee as to how you want those assets, the home, the cash to be distributed.

Stephen Hughes: Yeah, there's a couple of things about that. You mentioned the hundred thousand dollar mark or real property. It's funny. I wanted clarification on this. It's called the small.l estate affidavit or something if they have less than a hundred thousand or no real property because I had a mobile home, I think two years ago She had passed away, and the nephew from Colorado basically sold the home to us for like two years 5, 000 because it was totally trashed and she had passed in the home and he only had to do that and she had a will.

There's a big misconception about wills that you need not be poor or own a bunch of stuff. Even if you are making minimum wage and renting and such, do you still want to have a will? I think every adult should have a will. I'm curious if you had a comment on that before I ask another question.

Matt Miles: Sure.

Yeah, I'd be happy to address that. You're exactly right. I mean, there are a lot of benefits outside of avoiding probate that a trust accomplishes. But even if you're under that 100 000 and you're correct, you referenced the Utah small estate affidavit, which allows somebody to sign on behalf of a deceased individual if the estate is under 100 000.

And that's what I believe you're referring to: the nephew was able to use that small estate affidavit to liquidate the mobile home. The idea here is, though, that he takes responsibility when he signs the small estate affidavit. He takes on the liability and the responsibility to then distribute the funds where they're supposed to go, either in accordance with the will, if there was one, or in accordance with the laws of intestacy.

And let's talk about that because that's what plays to what I think you're referring to. In the state of Utah, if you die without a will or a trust or a beneficiary designation, that's another way that assets can pass. You can set up beneficiary designations on retirement or a bank account or life insurance, and they will go directly to those beneficiaries.

But if you own assets that don't have a beneficiary designation. If you don't have a will, then the Utah laws of intestacy are going to direct where your assets go. That may be where you want them to go. As a society, we have voted on laws to say, hey, this is where we think people would want their money to go, or their estate to pass, if they did not have a will.

But that's kind of like a one-size-fits-all-all, and we're doing our best to try to accomplish that. That may not be the case for you, Stephen, that may not be the case for me, or that may not be the case for someone who is listening to this. So it does its best, but if you want to make sure your estate and whatever assets you own when you die go to the correct people, you ought to have a will.

You ought to have trust. You should have an estate planning document that directs where your assets go when you die. So then it's your choice, not the state laws that are controlling where your assets go. So you're exactly right. You know, once you're an adult and own assets, you want to have some type of estate planning document to direct where your assets go when you die.

The other big benefit of a will is that, as you indicated, once you're an adult, the other, once you have children, your will is where you nominate a guardian to raise your Children. If something happens to you, it's a major decision. That's a huge impact on your Children's lives. If something happens to you, that's where you get to put in a legal document if me and my wife or you and the mother of your Children pass away; this is how we want to raise our Children. There's really not a more important decision out there than who's going to be the guardian and raise your children. So once you have kids, once you have assets, a will is a very important thing to say: This is where we want the money to go, and this is how we want to raise our children.

My dad as I indicated, I practice with my dad, Kelly Miles, and he's been doing this for 30-plus years He told all of his kids, once you have a child or once you buy real property, a house, those are the two big reasons why he directs his kids, hey, you should have a will and a trust in place.

The will to nominate a guardian, right, who's going to raise the kids, and the trust to secure and protect that property to avoid probate. So I hope that answers your question on whether people should get a will. Yes, they should. Even if they rent, even if they don't own real property, and even if they're under $100,000, they still should have a will, so it's their choice.

The other big decision that gets made in the will is who's going to be in charge. The Utah laws have a list of priority over who would be in charge of your estate if you died, but that's not your choice again. That's the cookie cutter. That's us as a society trying to figure out who we think would be the best person, but it may not be perfect for your situation.

And the only person who knows your situation is you. So you ought to be the one to say, hey, yes, I'm married, or yes, I have kids. Generally speaking, those are the people who have priority. But maybe it's your brother. Maybe it's your uncle. Maybe it's a trusted friend that would do a really good job, and you would trust them to take care of things.

Well, then you need to put that in writing so that your wishes can be honored and the court can know that to put that person in charge.

Stephen Hughes: Yeah, it's, it's interesting. There are a couple of things you mentioned there. I mean, the kids are something I don't even think I would have asked for, but it's such a great point because my wife and I have that to where if both of us were to, unfortunately, pass away, my daughter would actually be raised by my sister, So we had to line that out because there's just, you know, family dynamics. I think every family has that where you want to make sure that there's a plan for your offspring. It's just that's a really great point that I'm glad you brought up. Even personally, I've had to make that decision, and any parent should. Really, really should.

This is a question because you mentioned life insurance, and life insurance is, you know, considered an asset because it's going to pay out. I've heard of instances where people had a trust set up, such as for the house and other things. However, some big insurance policies and other financial assets were not included in that trust, and the family was forced to go through probate because those assets were not named. Is that something that can happen? Is that a concern when you set up a trust to make sure some of these other assets are named within that trust, or should it be a separate document? I really don't know.

Matt Miles: Lots of different assets can create problems, and although you have trust, you still end up on probation due to these other assets.

So, let me just give you some basic information about how a trust operates. A trust can only control assets that it owns. What I mean by that is the example that I like to use because it paints a clear picture: I can't create trust for myself, Matt Miles. I can't create the Matt Miles trust and say in my trust that when I die, Stephen's house is going to go to my kids.

How would that make sense? My trust doesn't own your house. You own your house. You know, it's going to go according to whatever you choose to do with it. So, the trust itself has to own the asset to be able to control it. And that's very clear. People understand that it relates to real property, like a house.

But the same thing applies to bank accounts, to life insurance, to retirement, to, you know, Water rights, to companies that you own all these different types of assets in your life; they have to be owned by the trust in order to be controlled by the trust. When you set up a trust, it is just as important as creating the trust and having it worded correctly. It is a valid document, and hiring someone who knows what they're doing also takes the time to fund your trust appropriately.

Funding a trust is the process of making sure all those assets are transferred to your trust now. Or they get funneled into the trust when you die. And life insurance is the example that you brought up. The life insurance would not be owned by the trust right now. It would be Stephen's life insurance policy that you're paying the premium on.

And you would name your trust, the Stephen trust, as the beneficiary of your life insurance so that if something happened to you, all the money would go into the trust, and it would follow the terms that you had set up. Let me give you an example. Okay. Stephen, you have minor children, correct? Some are still minors.

You may say in your trust that the money is to be held in trust for our minor children to be used for certain things, like education and medical expenses. Certain things are beneficial, and when they reach a certain age, they may receive their inheritance. So, the trust would receive those funds from the life insurance company, use them according to the terms of the trust, and then eventually distribute them according to the terms of the trust.

So yes, if there are assets that got left out of the trust because there was no beneficiary on that life insurance, Then you may have to probate the estate in order to get that money to the appropriate people.

Stephen Hughes: I had a very interesting conversation I think it was yesterday two days ago went to a senior networking meeting down in salt lake, florida Right, and I had mentioned I I've really been on one about other senior professionals Asking their clients if they have a will because only a third of americans have a will.

I mean, it's shocking how many people don't, and This person came up to me and said oh, yeah, you do that. We have this service where people pay 95. They get a will and a trust set up, blah blah blah, and I know that just from working with people, they're going to be mistaken because they don't practice law. Every day, in this, what you defined with the life insurance, and all I guarantee is knowing the types of people I've dealt with and just people, in general. They're probably going to overlook that.

Matt Miles: Sure.

Stephen Hughes: And they still end up having this problem where they still end up having to retain the services of an attorney. So what I want to say here, and you can comment on it if you'd like, is if you're going to do any sort of estate planning, you really do need to talk to a real-life person face to face.

And I think that's one of the things that impresses me about you is you will still meet people in person and, you know, you just don't funnel them through some other, like an assistant or a junior attorney. They're meeting with you directly. It's, it's, really not as common to find as some people would think, but I would encourage anyone watching this, of course, to, you know, go to you for services.

But again, there are just some people who will, you know, sell you that flat fee service. But if you've ever heard the saying if it sounds too good to be true, Well, it probably isn't true, or whatever; it's said a lot of different ways... in my opinion, with legal matters, that's pretty, pretty accurate.

Matt Miles: Well, sure. I get the question and I'm not afraid to address the question, but I get the question. Why should we hire you to do this when I can go to legal zoom or have chat GPT draft me a will or a trust or for different things like that. And sure you can't obviously I can't stop you from doing that.

And I'm sure there's a number of people who do that. And a lot of times, I'm grateful for those people because there ends up being problems, and I get to do legal work on the back end and generally make more money on it in the long run. But I'm obviously being kind of joking there, but. The biggest thing is, when you create a will or a trust, if you don't know what needs to be included or you don't know the questions to ask, are you going to catch everything?

And that, that's the idea. I mean, if you know how to fix your toilet, you don't hire a plumber. If you know how to fix your car, you don't hire a mechanic. I don't know how to do either of those things, so I hire people to do those things. If you don't know how to draft a trust or a will, you hire somebody to do it, and I'd be happy to do that.

There are a number of people who try to make it work, and sometimes I believe it works just fine, and sometimes there are problems. I will tell you, you hit the nail right on the head. The most common mistake for people who then Create trust online is kids who bring in a document that says, Hey, my mom or dad passed away, and I need to settle their estate.

They had trust. It's very clear when it wasn't drafted by an attorney based on the spacing and the structure of it and what it looks like. I can tell it was a form. The trust itself may operate just fine. There may not be any problems with the trust, but nine times out of 10, all of the assets were not placed in the trust because they did not have somebody. Do you own life insurance?

Do you own a business? Do you own it? You know, a house, you know, What bank accounts you have, and they're not getting the help they need to make sure all the assets are in their trust, and that is something that We prioritize here 30 years, and now for the last seven is When we create a trust, our package includes not only the drafting of the documents but also the funding of the trust.

I will prepare the deed for your home. I will help you direct your assets into the trust. So that at the end of the day, when something happens to you, there's the best chance of it flowing through that trust, avoiding probate and it going to the place that you want. A trust that doesn't own any assets is worth the piece of paper that it's written on because it's not controlling anything.

You know, it might give you some peace of mind, but it might not operate the way that you want, might not control your assets, and your kids will be at risk anyway. So those are, you know, one of the biggest reasons, whether it's me or somebody else who is a professional and can help you make sure all your assets end up in the trust.

That's an important part of Doing an estate plan.

When we create an estate plan for you, it consists of four, four main documents. There's the trust itself, which, as I indicated, owns and controls assets. It designates who's in charge when you pass away, and it says how the assets are going to be used and distributed after your death. It's the main controlling document.

Then we still create a will for you, and if you've listened to anything that we've discussed today, a lot of times you don't want a will because a will has to be probated, but there still is a will; it's called a pour-over will, and it directs any of your assets that got missed to be poured into the trust.

The goal is to never use it because if we have to, we have to go through probate or use a small estate affidavit. But it's better to have it and not need it and need it and not have it so it's created. It's also the document that designates a guardian for your minor children as we hit on. And then the 3rd document is a general financial power of attorney.

It's a legal document, as most people are familiar with, that allows people to transact on your behalf and manage your financial affairs if you need help due to being sick, quarantined because of COVID, out of the country, or something like that. And the fourth document is your Utah Advance Healthcare Directive.

You can talk to doctors and make medical decisions if you can't speak for yourself. And it also includes your living will or your right to die. At what point do you want the plug to be pulled if you're being kept alive by machines? Then, in addition to those four documents, as I just indicated, I help you with the process of funding your trust and transferring your assets into the trust so that we have the best chance of making sure your trust operates the way that you want without having to go through probate be happy to answer questions.

You know, again, I'm at Froerer Miles. You can reach out to us online at froererandmiles.com. Leave us a message there or our contacts there. Be happy to talk with you and answer further questions. As Stephen also indicated, I meet in person with my clients, and I offer free consultations so we can sit down and talk about some of these things. Also, I do estate settlement, which is if someone one of your loved ones has passed away, I will handle the probate process or settle a trust, or if there is no will, it's still often a probate process, but we don't probate a will.

So, Happy to answer any of those questions and get involved there. Thanks, Stephen. I know we're trying to wrap this up. Not go too long. Appreciate you having me on. Give me a chance to talk about some of these things. I believe there's a lot of value in it. Not only for the individual who creates an estate plan because it gives you peace of mind, but it also helps your kids.

It's a wonderful gift to your kids so that they know, hey, things are in order. Things are going to operate the way that we want. And so give me a call. I'd be happy to speak with you.

Stephen Hughes: Awesome. Hey, you, you wrapped that up perfectly.

Again. Matt's information will be in the description box below. Of course, if you have any questions or comments, you can reach out to him directly and ost below; please share and subscribe. Of course, Matt and I are going to chat for a minute or two after the video is done, but until next time, thanks so much for being here.

Matt Miles: Thanks again, Stephen. Appreciate it.Stephen Hughes: Hey, everyone. Welcome back to the YouTube channel. It's your host, Stephen Hughes, the Hardship Real Estate Pro. Today, I have a special guest. It's the first time the channel has been created. I do have an attorney, and I know we will talk a little about preventing probate. If you've been on the channel, you've probably seen I've talked a little about that.

Matt Miles: Perfect. Well, thanks, Stephen.

So, if possible, it's a great thing to avoid for your loved ones.

So there's really basic stuff, and you know, how do we prevent that probate process, and why should they prevent it?

Matt Miles: Sure., thoseare two great questions. Let's start there. Before I jump into it., letme just Be clear that this isn't legal advice.

Probate can be a long process, but ultimately, the goal is to get somebody appointed to handle those things.

That's a long time since we've talked about a house and bank accounts sitting. Again, if we can avoid that, it's a great thing to do.

A house, a cabin, land, something of that nature.

Now we'll get into this, I'm sure a little bit later, but then, your trust should direct your trustee as to how you want those assets, the home, the cash to be distributed.

Matt Miles: Sure.

Well, then you need to put that in writing so that your wishes can be honored and the court can know that to put that person in charge.

Matt Miles: Lots of different assets can create problems, and although you have trust, you still end up on probation due to these other assets.

Matt Miles: Sure.

That's an important part of Doing an estate plan.

It's a wonderful gift to your kids so that they know, hey, things are in order. Things are going to operate the way that we want. And so give me a call. I'd be happy to speak with you.

Stephen Hughes: Awesome. Hey, you, you wrapped that up perfectly.

Matt Miles: Thanks again, Stephen. Appreciate it.