Will Power

Where there’s a will, there’s a way

Mary Ann Turner and her husband were ready for a call to order.

“We’re getting older, and we want everything left to the children — not to the government,” she says.

So the St. George couple consulted attorney Justin Heideman, a partner at Ascione, Heideman & McKay in Provo, and is now hard at work with him on an estate plan.

“This is not something we should do by ourselves,” Mary Ann says. “This is something we need, and it’s important that it be done right.”

Mary Ann isn’t the only one who needs an estate plan — everyone does. And there are no ifs, ands or buts about it.

“This isn’t an option. It’s a new year, and it’s time to put your life in order,” Justin says. “If you don’t, there will be inescapable penalties and consequences.”
Consider this your “escape” clause — four dos and don’ts you can trust.

DO … Start now
It’s the age-old question of wills and trusts: How old should I be?

“Really, everyone should have a will. But in a practical world, a single sophomore in college isn’t worried about what they’re going to leave behind,” Justin says. “So I’d say the minute you purchase life insurance in excess of $250,000, or the minute you have children, you need a will.”

Other “triggering factors” include assets with sentimental value, or any time there’s a specific direction you want your possessions to go in. Also important to note: If you fail to get your estate in order, the government will create something out of nothing.

“Even if you don’t draw up an estate plan, you have one. It’s just not the one you want,” Justin says. “If you pass away without the right documents in place, the state legislature will enact their ‘default plan’ and disperse your assets for you. You give up any and all control you could have had.”

DON’T … D.I.Y.
Drawing up your own will is kind of like doing your own taxes.

“It can be done, but it is never done right,” Justin says.

The most common mistake for a do-it-yourself will is it fails to be compliant with state law. From failure to have proper witnesses and signatures to the inevitable language ambiguity, there are just too many critical points that can go wrong.

“Too often, people create a document that doesn’t accomplish what they think it does. It doesn’t protect their assets, or it’s improperly notarized,” Justin says. “A will or trust is too crucial to make such mistakes.”

DO … Use the right pros
It’s not enough to hire a professional. It must be the right professional.

“Attorneys have a unique advantage when it comes to creating estate plans,” Justin says. “From a legislative aspect, we help create the law, we argue the law in court and we understand the pitfalls someone can fall into. Because of that, we know how to draft wills and trusts correctly and effectively.”

That’s not to say you can’t consult your accountant or financial adviser — Justin recommends it, in fact. But when it comes to the actual drafting, make your case with a lawyer.

“Attorneys, by definition, are legal counselors,” he says. “When it comes to these documents, our counsel is tested.”

DON’T … Forget about trusts
Turns out the old idiom needs an addition: Where there’s a will — plus power of attorney and probating — there’s a way.

“A will by itself is actually not that effective,” Justin says. “There are extra steps involved in order to make it valid.”

Because of those extra steps, it’s important not to ignore trusts. They’re more costly, but unlike wills, they aren’t subject to probate proceedings, you can avoid court supervision when dealing with disputes, and the record remains private.

“There are certainly pros and cons to both documents,” Justin says. “But an attorney will lay out the options for you and find the best solution for your situation.” UV

Ascione, Heideman & McKay, LLC is a full-service law firm that focuses primarily on business litigation, contracts, real estate transactions and estate planning. The firm’s clients include many established and growing businesses, and it has offices in Provo, St. George and Price.

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