Before the foreclosure crisis, which peaked in 2010, federal and state laws regulating mortgage servicers and foreclosure procedures were relatively limited and tended to favor foreclosing lenders. Now, however, federal and state laws heavily regulate loan servicing and foreclosure processes. And most of the laws give protections to borrowers.
Servicers generally have to provide borrowers with loss mitigation opportunities, account for each foreclosure step, and strictly comply with foreclosure laws. Also, most people who take out a loan to buy a residential property in Utah sign a promissory note and a deed of trust, which is like a mortgage. These documents give homeowners some contractual rights in addition to federal and state legal protections.
In a Utah foreclosure, you’ll most likely get the right to:
A preforeclosure notice
Apply for loss mitigation
Receive certain foreclosure notices
Get current on the loan and stop the foreclosure sale
Receive special protections if you’re in the military
Pay off the loan to prevent a sale
File for bankruptcy, and
Get any excess money after a foreclosure sale.
So, don’t get caught off guard if you’re a Utah homeowner who’s behind in mortgage payments. Learn about each step in a Utah foreclosure, from missing your first payment to a foreclosure sale. Once you understand the process, you can make the most of your situation and, hopefully, work out a way to save your home or at least get through the process with as little anxiety as possible.
What Is Preforeclosure?
The period after you fall behind in payments, but before a foreclosure officially starts, is generally called the “preforeclosure” stage. (Sometimes, people refer to the period before a foreclosure sale actually happens as “preforeclosure,” too.) During this time, the servicer can charge you various fees, like late charges and inspection fees, and, in most cases, must inform you about ways to avoid foreclosure and send you a preforeclosure notice called a “breach letter.”
Fees the Servicer Can Charge During Preforeclosure
If you miss a payment, most loans include a grace period of ten or fifteen days, after which time the servicer will assess a late fee. Each month you miss a payment, the servicer will charge this fee. To find out the late charge amount and grace period for your loan, look at the promissory note you signed. You can also find this information on your monthly mortgage statement.
Also, most Utah deeds of trust allow the lender (or the current loan holder, referred to as the “lender” in this article) to take necessary steps to protect its interest in the property. Property inspections are performed to ensure that the home is occupied and appropriately maintained. Inspections, which are generally drive-by, are usually ordered automatically once the loan goes into default and typically cost around $10 or $15.
Other types of fees the servicer might charge include those for broker’s price opinions, which are like appraisals and property preservation costs, such as for yard maintenance or winterizing an abandoned home.
Federal Mortgage Servicing Laws and Foreclosure Protections
Under federal mortgage servicing laws, the servicer must contact, or attempt to contact, you by phone to discuss loss mitigation options, like a loan modification, forbearance, or repayment plan, no later than 36 days after you miss a payment and again within 36 days after each following delinquency. No later than 45 days after missing a payment, the servicer has to inform you in writing about loss mitigation options that might be available and appoint personnel to help you try to work out a way to avoid foreclosure. A few exceptions are in place for some of these requirements, though, like if you’ve filed bankruptcy or asked the servicer not to contact you pursuant to the Fair Debt Collection Practices Act. (12 C.F.R. § 1024.39, 12 C.F.R. § 1024.40).
Federal mortgage servicing laws also prohibit dual tracking (pursuing a foreclosure while a complete loss mitigation application is pending).
What Is a Breach Letter?
Many Utah deeds of trust have a provision that requires the lender to send a notice, commonly called a “breach letter,” informing you that the loan is in default before the lender can accelerate the loan. The breach letter gives you a chance to cure the default and avoid foreclosure.
When Can Foreclosure Start?
Under federal law, the servicer usually can’t officially begin a foreclosure until you’re more than 120 days past due on payments, subject to a few exceptions. (12 C.F.R. § 1024.41). This 120-day period provides most homeowners with ample opportunity to submit a loss mitigation application to the servicer.
What Is the Foreclosure Process in Utah?
If you default on your mortgage payments in Utah, the lender may foreclose using a judicial or non-judicial method.
How Judicial Foreclosures Work
A judicial foreclosure begins when the lender files a lawsuit asking a court for an order allowing a foreclosure sale. If you don’t respond with a written answer, the lender will automatically win the case. But if you choose to defend the foreclosure lawsuit, the court will review the evidence and determine the winner.
If the lender wins, the judge will enter a judgment and order your home sold at auction.
How Non-judicial Foreclosures Work
If the lender chooses a non-judicial foreclosure, it must complete the out-of-court procedures described in the state statutes. After completing the required steps, the lender can sell the home at a foreclosure sale. Most lenders opt to use the non-judicial process because it’s quicker and cheaper than litigating the matter in court.
Preforeclosure Requirements Under Utah Law
Much like the requirement under federal mortgage servicing laws, after determining that the loan is in default, the servicer or lender must appoint single point of contact who can provide information about the foreclosure and foreclosure relief. (Utah Code Ann. § 57-1-24.3).
Before filing a notice of default, the lender or servicer must mail a notice to you (the borrower) giving you at least 30 days to cure the default by getting current on the loan. The letter will also include the name, telephone number, email address, and mailing address of the single point of contact. (Utah Code Ann. § 57-1-24.3). This information will likely be included in the breach letter.
Notice of Default
The non-judicial foreclosure process formally begins when the trustee records a notice of default at the county recorder’s office. The notice of default gives you three months to cure the default. (Utah Code Ann. § 57-1-24).
Within ten days of the recording, the trustee mails a copy of the notice of default to anyone who has requested a copy. Most deeds of trust in Utah include a request for notice, so you’ll probably get this notification. (Utah Code Ann. § 57-1-26(2)(a)).
Notice of Sale
If you don’t cure the default, after three months, the trustee will record a notice of sale and:
Mail a copy to you at least 20 days before the sale (if your deed of trust includes a request for notice, which it probably does)
Publish notice of the sale in a newspaper, and
Post notice about the sale on the property at least 20 days before the sale. (Utah Code Ann. § 57-1-26(2)(b), § 57-1-25).
The Foreclosure Sale
At the sale, the lender usually makes a credit bid. The lender can bid up to the total amount owed, including fees and costs, or it may bid less. In some states, including Utah, when the lender is the high bidder at the sale but bids less than the total debt, it can get a deficiency judgment against the borrower, subject to some limitations. If the lender is the highest bidder, the property becomes what’s called “Real Estate Owned” (REO).
But if a bidder, say a third party, is the highest bidder and offers more than you owe, and the sale results in excess proceeds—that is, money over and above what’s needed to pay off all the liens on your property—you’re entitled to that surplus money.
How Long Do You Have to Move Out After Foreclosure in Utah?
If you don’t vacate the property following the foreclosure sale, the new owner will probably:
Offer you a cash-for-keys deal, or
Take steps to evict you.
The eviction process starts with a notice to quit. If you still don’t leave by the deadline given in the notice, the new owner will go through the court system to evict you. (Utah Code Ann. § 78B-6-802.5).
HOW CAN I STOP A FORECLOSURE IN UTAH?
A few potential ways to stop a foreclosure include reinstating the loan, redeeming the property before the sale, or filing for bankruptcy. (Of course, if you’re able to work out a loss mitigation option, like a loan modification, that will also stop a foreclosure.)
Reinstating the Loan
Utah law gives you three months after the trustee records the notice of default to reinstate the loan. (Utah Code Ann. § 57-1-31). Also, the deed of trust might give you more time to reinstate. Check the paperwork you signed when you took out the loan to find out if you get more time to get caught up on past-due amounts and, if so, the deadline to reinstate. You can also call your loan servicer and ask if the lender will let you reinstate.
Redeeming the Property before the Sale
One way to stop a foreclosure is by “redeeming” the property. To redeem, you have to pay off the full amount of the loan before the foreclosure sale.
Some states also provide foreclosed borrowers with a redemption period after the foreclosure sale, during which they can buy back the home. Under Utah law, however, foreclosed homeowners don’t get a right of redemption after a non-judicial foreclosure. (Utah Code Ann. § 57-1-28(3)).
Filing for Bankruptcy
If you’re facing a foreclosure, filing for bankruptcy might help. In fact, if a foreclosure sale is scheduled to occur in the next day or so, the best way to stop the sale immediately is by filing for bankruptcy. Once you file for bankruptcy, something called an “automatic stay” goes into effect. The stay functions as an injunction, which prohibits the lender from foreclosing on your home or otherwise trying to collect its debt, at least temporarily.
If a lender is preparing to foreclose on your home, they will first present you with an NOD, or Notice of Default. They also have to schedule a time for auction for your home. During this in-between period before the auction takes place, know that lenders will almost always work out a financial compromise that will allow you to get back on your mortgage program without foreclosure. Any final compromises you might be able to make should be suggested at that time.
Short Sale
If you receive an offer from a buyer between receiving your NOD and the auction date, the lender must consider it. They may view this option as a time-saver that nets them virtually the same result – after all, they’d already be turning around to re-sell the home anyway. This is called a short sale, and there are plenty of situations where it can work as an acceptable compromise for both sides.
Assumption/Lease-Option
Most loans these days are not assumable, but if you are facing foreclosure, there’s a chance your lender could be willing to modify your loan. They might be willing to allow another buyer to assume your loan if this means less hassle for them – if you can negotiate a down payment from the new buyer that pays off your outstanding balance plus assumes the loan at no additional risk to the lender, everyone wins.
Foreclosure Protections and Military Service members
The Service members Civil Relief Act provides legal protections to military personnel who are in danger of foreclosure.
Utah Deficiency Judgment Laws
In a foreclosure, the borrower’s total mortgage debt sometimes exceeds the foreclosure sale price. The difference between the total debt and the sale price is called a “deficiency.” For example, say the total debt owed is $600,000, but the home sells for $550,000 at the foreclosure sale. The deficiency is $50,000. In some states, the lender can seek a personal judgment against the debtor to recover the deficiency. Generally, once the lender gets a deficiency judgment, the lender may collect this amount—in our example, $50,000—from the borrower.
In Utah, the lender can get a deficiency judgment after a non-judicial foreclosure by filing a lawsuit within three months of the sale. (Utah Code Ann. § 57-1-32). The deficiency amount is limited to the difference between the lesser of :
Your total debt and the property’s fair market value or
Your total debt and the foreclosure sale price. (Utah Code Ann. § 57-1-32).
How to Find State Foreclosure Laws
To find Utah’s laws, search online for “Utah statutes” or “Utah laws.” Make sure you’re reading the most recent, official laws. Usually, the URL will end in “.gov” or the statutes will be on an official state legislature webpage.
Although the programs under the Making Home Affordable (MHA) initiative have expired, the MHA website still contains useful information for homeowners facing foreclosure.
Getting Help
How courts and agencies interpret and apply laws can change. And some rules can even vary within a state. These are just some of the reasons to consider consulting a lawyer if you’re facing a foreclosure. If you have questions about Utah’s foreclosure process or want to learn about potential defenses to a foreclosure and possibly fight the foreclosure in court, consider talking to a foreclosure attorney.
For people struggling with mortgage payments and at risk of default and foreclosure on a home, declaring bankruptcy can be a viable option in some cases. Bankruptcy attorneys can walk you through when declaring and might help save your home and preserve your equity.
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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Telephone: (801) 676-5506
Bankruptcy is a legal way to get rid of most of your current debt, stop harassment from creditors, and start fresh. It is a federal court process by which you can discharge some of your debt because you are unable to repay those debts. There are usually two ways bankruptcy is declared:
You file for bankruptcy
Your creditors ask the court to declare you bankrupt
Bankruptcy usually takes two forms: Chapter 7 and Chapter 13.
Chapter 7 Bankruptcy
Chapter 7 Bankruptcy, otherwise known as “straight bankruptcy” or “liquidation,” allows the debtor to sell their non-exempt assets to pay off their debts; after that, the debtor will be free from all dischargeable debts.
There are specific eligibility requirements that you must meet to qualify for Chapter 7 bankruptcy. Some of the scenarios where you wouldn’t be eligible for Chapter 7 include when:
Your income is too high (this is determined using the “means test”): In such cases, your case may be filed under chapter 13 bankruptcy
You have the ability to repay your debt
You dismissed a bankruptcy case within the past 180 days
You previously filed for bankruptcy and the time frame to file another bankruptcy case has not passed
You attempted to defraud creditors
Under Chapters 7, 11, 12, and 13 of the U.S. Bankruptcy Code, some or all of your existing debt can be discharged. A “discharge” means you are not personally liable for the money and do not need to pay it back. The creditor you owe, such as a hospital or credit card company, cannot call you or take collection actions against you once the debt is permanently discharged.
Chapter 7 bankruptcy often involves the liquidation (or selling off) of assets in order to pay past debts. Only after this process is completed can you have qualifying debts discharged. Some property is protected from liquidation by federal or state bankruptcy exemptions. In fact, many people who file for Chapter 7 can keep a majority of their property. It will be up to your attorney and bankruptcy trustee to decide what you can keep, what deals you can make with the creditor, and what you need to give up in your bankruptcy case.
Once assets are liquidated, the courts tend to discharge debts right away. In the whole Chapter 7 bankruptcy process, this happens about four months after you first file in bankruptcy court. Keep in mind you need to complete educational classes on debt management in between filing and receiving the discharge, or the judge may dent your debt discharge.
What Happens After a Chapter 7 Bankruptcy?
Those who pursue a Chapter 7 bankruptcy should be aware of some potential problems or concerns. Many forms of debt cannot be discharged under Chapter 7 bankruptcy, including:
Government-funded student loans
Some forms of tax debt
Federal tax liens
Child support
Alimony or spousal support
Debts for personal injury or death arising from a motor vehicle accident
Fines and penalties for violating the law
Certain tax-advantaged retirement plans
Cooperative housing fees
Potential applicants for Chapter 7 bankruptcy should be aware that even private student loans are rarely discharged without a special showing of undue hardship. This can be hard to prove but can happen if you become permanently disabled and cannot work.
Property That Can Be Taken Before a Discharge
Bankruptcy is intended to help you get relief from the burden of debt, so removing all of your property would be counterproductive, as you would need to rebuy a car or other items.
Property that is considered necessary for modern life may be exempt from creditors taking it back. But, you may need to petition a judge to stop them.
Some examples of the property a creditor might try to take back include:
Motor vehicles or a second vehicle
A second home or vacation home
Expensive clothing
Household furniture
Jewelry
Tools used in your work
Musical instruments (unless you can prove you are a professional musician)
Cash, bank accounts, stocks, bonds, and other investments
Pensions
A portion of the equity in your home
A portion of earned but unpaid wages
Public benefits that have accumulated in a bank account
Damages awarded for personal injury
Family heirlooms
While this list looks scary, it is important to remember that creditors can try to take these items, but they generally will not succeed. Much of this property is protected by Utah’s exemptions or wildcard exemptions, as it is essential for work or daily life.
A creditor will receive a notice saying your debts have been discharged. They can try reaffirming these items or sue you for debt if they do not agree with the discharge.
Once the discharge of debt is in place, things are considered final. A creditor cannot sue you, try to take your property, or harass you.
You also need to show you comply with the eligibility requirements before you can file Chapter 13. These include:
You are not a business organization
You took credit counseling
You have not dismissed a Chapter 13 case within the past 180 days
You have not filed for a Chapter 13 within the past two years
Use Reaffirmation to Stop Creditors Taking Your Property
Some creditors can keep their rights over your property even following a discharge. One way this can happen is through what is called a “lien.” A creditor can use a lien to enforce payment or take back the property.
For example, let’s say you keep certain secured property, such as your car. Your creditor may seek to reaffirm the debt with a lien. This “reaffirmation” takes place if you and the creditor agree:
You will remain liable for this debt
You will pay back some or all of a debt
You pay even though the debt would be discharged in bankruptcy
The creditor will not repossess the property as long as you continue to pay the debt
Reaffirmation must occur before the order of discharged debt is entered. If you want to keep a car or other property, you need to discuss this with the creditor early on. Your attorney can handle this for you and try to negotiate a fair payment schedule.
Solving Bankruptcy Problems
Following a bankruptcy, you may need to correct any inaccurate reports from former creditors. To do this, you will need to engage in a process with the credit bureau.
This can entail contacting former creditors for verification of the satisfaction of debts. Even when these issues are resolved, those who have completed a bankruptcy can still expect to:
Pay higher credit rates
Have higher down payments
Need to produce a co-signer when attempting to secure new credit
These complications are not the end of the world. They may require using a mortgage broker when seeking to purchase a house.
Even though it may be counterintuitive, there are benefits to bankruptcy when you have debts that you can’t pay. You will get a clean slate, and most negative outcomes will fade from your record within a few years. But whether or not you should file for bankruptcy is heavily dependent on an individual’s specific circumstances.
For this reason, it can be very beneficial to speak with a bankruptcy attorney in Utah who can explain the benefits and downsides to filing for bankruptcy in your particular situation.
Consult with a bankruptcy attorney or educate yourself on your options — you may find that filing for bankruptcy could help you out of a difficult financial bind.
Most filers find that bankruptcy eases stress by stopping:
Collections agency calls or harassment
Debt lawsuits from creditors
Wage garnishment (creditors taking money from your paycheck)
Foreclosure (unless the property has already sold)
Repossession of some property (in Chapter 13)
Bankruptcy will also:
Get rid of many debts (in Chapter 7)
Protect some property from being sold (depending on exemptions in your state)
Put an end to growing debt and give you a fresh start to turn things around
Is Bankruptcy a Good Idea for You?
The decision to file for bankruptcy is a serious one. There are several considerations worth examining closely before getting started:
The impact on your future ability to access credit, lenders, or low interest rates
The impact on your credit report
Whether you could lose assets (if you file for Chapter 7)
The differences in the time and expense associated with each form of bankruptcy
Whether you are eligible for certain forms of bankruptcy
Whether you can retain specific valuable assets from repossessions (many states have exemptions)
Considering other impacts can be critical in deciding whether to file for bankruptcy or which form is a better option. Some bankruptcies may:
Fail to discharge credit card debts
Impact your pension plans or other assets
Create financial issues for co-signers
Stop foreclosure
Feel like a significant invasion of your personal privacy with the bankruptcy court and working with your bankruptcy trustee
Any of these concerns may impact the desirability of the relief provided. However, none of these reasons are worse than staying in overwhelming debt or making your financial situation worse. Sometimes, you simply need debt help and cannot get there alone. Bankruptcy will give you a fresh start, and you can work towards the financial situation you want.
Despite what many think, filing for bankruptcy is not the end of the world. It can actually be the fresh start you have been looking for. The laws of bankruptcy were drafted with the purpose of giving people a second chance, and not to punish them.
But that doesn’t mean you should file for bankruptcy at the first sign of financial distress. Declaring bankruptcy will have short- and long-term consequences and should only be done as a last resort. So, when should you file for bankruptcy?
Before You File, Evaluate Your Situation
When should I file for bankruptcy? This is a question most people under financial distress ask. You should probably consider other options before going this route. These options include:
Getting credit counseling
Trying to negotiate your debt or make a payment plan with your creditor
Sticking to a budget
If, however, other options don’t seem feasible, filing for bankruptcy may give you the ability to get a fresh start.
Declaring Bankruptcy Will Affect Your Credit Score
In exchange for discharging your debt, filing bankruptcy shows everyone that you may be a credit risk, which will be reflected in your credit score. Thus, getting a loan, a mortgage, or a credit card may be very difficult after declaring bankruptcy.
You should note bankruptcy filed under Chapter 7 will remain on your record for 10 years. If you filed under Chapter 13, it would stay on your credit report for 7 years. After that, it is erased.
Your Co-Signers May Be Required to Pay Your Debts
Co-signers are people who agree to pay your debt if you are somehow unable/unwilling to pay the debt. If you file a Chapter 7 bankruptcy, your creditors are allowed to go after the co-signer even if your bankruptcy case is successful.
Under Chapter 13, your creditors can’t go after your co-signer as long as you make your regular payments per your agreement.
Filing for Bankruptcy during a Pandemic
Filing for bankruptcy during a pandemic or other national emergency may be challenging, as operational hours for courts may change. So, first, make sure your local bankruptcy court is open and taking cases before you file. You should also expect a delay in the processing of your case.
The Federal Government May Intervene
Under rare situations, the federal government may pass laws that could affect your bankruptcy case during a pandemic. For instance, the federal government passed a stimulus bill in response to the COVID-19 pandemic.
Under this stimulus bill, several temporary changes were made to the bankruptcy code. Some of these changes include:
Previously, the debt limit to be eligible to file for bankruptcy under the Small Business Reorganization Act (SBRA) was $2,725,625. Under this stimulus bill, the debt limit was increased to $7.5 million for a period of one year.
The bill also changed the definition of “income” for Chapter 7 and 13 bankruptcy filers. Accordingly, payments received from the federal government that are related to COVID-19 are not considered income for purposes of bankruptcy.
People with federal student loans can, without penalty, defer their payments for six months through September 30, 2020.
People who already filed a Chapter 13 and are under a repayment plan can make modifications if they can show “material financial hardship” because of the pandemic. The modifications include an extension of payments for seven years.
If your debts have become unmanageable or you’re facing foreclosure on your home, you might be thinking about declaring bankruptcy. While bankruptcy may be the only way out for some people, it also has serious consequences that are worth considering before you make any decisions. For example, bankruptcy will remain on your credit report for either seven or 10 years, depending on the type of bankruptcy. That can make it difficult to obtain a credit card, car loan, or mortgage in the future. It could also mean higher insurance rates and even affect your ability to get a job or rent an apartment.
The following are interesting things to know about filing bankruptcy. The decision to file bankruptcy can be tough so here are things you need to consider or know about before you make that decision:
• Deadlines: Deadlines are critical in bankruptcy court. The rules in bankruptcy are very complex, can be technical, and all case deadlines must be met. Failing to file the appropriate forms or documentation on time may result in your case being dismissed or delayed.
• You need to qualify to file for bankruptcy: Many people who would have qualified for a Chapter 7 discharge before the 2005 changes must now use Chapter 13 instead, which involve repayment of some of your debts. This is determined using the Means Test.
• Repayment Plans: In a Chapter 13 bankruptcy case a repayment plan that must be filed with the court. The court has a process that will determine exactly what income and expenses you have, and then calculate the reasonable expenses and monthly repayment amount for your case. In Utah this plan must be submitted to the court and confirmed.
• DIY Bankruptcy: Representing yourself in bankruptcy can be a huge mistake. The laws and the corresponding rules in bankruptcy can be very confusing, and many common errors could cost you a chance at a new financial start. An experienced attorney can help you determine the right laws to help you, represent you at the hearings and the meetings with creditors, and get most of the time save you money in the end.
• Focused Court: The Bankruptcy Court is a federal court which exclusively deals with bankruptcy cases. These courts are located around the United States, and they only handle bankruptcy cases and matters related to this legal area. You reside in an area that is served by a bankruptcy court.
• You get your own Trustee: The Department of Justice and the Bankruptcy Court in Utah will appoint a trustee in your case. This trustee will be responsible for overseeing your specific case and ensuring that all of the documentation is filed. The trustee is not in favor of either the consumer or creditors, but is an officer of the court instead.
• Get the best attorney: Choosing the right attorney that you can afford to represent you in bankruptcy court is very important and can affect the outcome of your case. You want a lawyer who will aggressively defend you and work hard to overcome any objections that may be presented by your creditors or the trustee. Experience is also very important, so you want an attorney who is very knowledgeable in bankruptcy law and that has been in the game for a long time.
• Your goal is a discharge: Another interesting things to know about filing bankruptcy is that a bankruptcy discharge is an order issued by the bankruptcy court stating which of your debts are forgiven. Usually this will include most unsecured debts that have not been repaid are eliminated in the process unless you have reaffirmed your obligation.
Utah Chapter 7 Bankruptcy or Utah Chapter 13 Bankruptcy
There are several situations where a Chapter 13 is preferable to a Chapter 7. A Chapter 13 bankruptcy is the only choice if you are behind on your mortgage or business payments and you want to keep your property, either in Utah or another state, at the end of the bankruptcy process. A chapter 13 bankruptcy allows you to make up their overdue payments over time and to reinstate the original mortgage agreement. In general, if you have valuable property not covered by your Utah bankruptcy exemptions that you want to keep, a chapter 13 filing may be a better option. Also, people file Chapter 13 bankruptcy because they have too much income to file a Chapter 7 bankruptcy or have the kind of debt that is non- dischargeable in a Chapter 7 (e.g. certain taxes). However, for the vast majority of Utah residents who simply want to eliminate their heavy debt burden without paying any of it back, Chapter 7 provides the most attractive choice.
Advantages to a Utah Chapter 7 filing:
• You receive a complete fresh start. After the bankruptcy is discharged the only debts you owe will be for secured assets on which you choose to sign a “Reaffirmation Agreement.”
• You have immediate protection against creditor’s collection efforts and wage garnishment on the date of filing.
• Wages you earn and property you acquire (except for inheritances) after the bankruptcy filing date are yours, not the creditors or bankruptcy court.
• There is no minimum amount of debt required.
• Your case is often over and completely discharged in about 3-6 months.
Disadvantages to a Utah Chapter 7 filing
• You lose your non-exempt property which is sold by the trustee. If you want to keep a secured asset, such as a car or home, and it is not completely covered by your Utah bankruptcy exemptions then Chapter 7 is not an option.
• If facing foreclosure on your home, the automatic stay created by your Chapter 7 filing only serves as a temporary defense against foreclosure.
• Co-signors of a loan can be stuck with your debt unless they also file for bankruptcy protection.
• If you filed a prior case and received a discharge of your debts, you can only file a second Chapter 7 bankruptcy case eight years after you filed the first case.
Advantages to a Utah Chapter 13 payment plan:
• If you choose and you can afford the payment plan, you can keep all your property, exempt and non-exempt.
• While debts are not canceled as in a Chapter 7 discharge they can be reduced under a Chapter 13 payment plan.
• You have immediate protection against creditor’s collection efforts and wage garnishment.
• More debts are considered to be dischargeable (including debt you incurred on the basis of fraud and credit card charges for luxury items immediately prior to filing).
• If the Chapter 13 plan provides for full payment, any co-signers are immune from the creditor’s efforts.
• You have protection against foreclosure on your home by your lender as long as you meet the terms of the plan.
• You have more time to pay debts that can’t be discharged by either chapter (like taxes or back child support).
• You can file a Chapter 13 at any time.
• You can file repeatedly.
• You can separate your creditors by class where different classes of creditors receive different percentages of payment. This enables you to treat debts where there is a co-debtor involved on a different basis than debts incurred on your own.
Disadvantages to a Utah Chapter 13 payment plan:
• You create a payment plan where you use your post bankruptcy income. This ties up your cash over the Chapter 13 plan period.
• Legal fees are higher since a Chapter 13 filing is more complex.
• Your plan and therefore your debt will last for 3 to five years.
• You are involved in the bankruptcy court process for the term of the 3-5 year plan.
• Stockbrokers and commodity brokers cannot file a Chapter 13 bankruptcy petition.
Filing for Bankruptcy without an Attorney
You are not required to have an attorney to file for bankruptcy. In some simple Chapter 7 cases, you can file on your own (it’s called filing “pro se,” meaning that you represent yourself) if you are willing to put in some time and research. However, in many cases, it’s a good idea to have a bankruptcy attorney. The importance of an attorney depends on the complexity of your case and whether you are filing a Chapter 7 or Chapter 13 bankruptcy.
When Is it Feasible to File Without an Attorney?
What Is a Priority Debt?
Bankruptcy is an excellent tool that helps many people overwhelmed with debt get back on their feet. But it might not discharge (get rid of) everything that you owe. Priority debts get paid first if money is available to pay creditors. More importantly, they’re non-dischargeable—they don’t go away in bankruptcy.
Debts that you’ll remain responsible for include (many, but not all of these debts are priority in nature):
• child support, spousal support, or another domestic support obligation
• fines, penalties, and restitution imposed as punishment for violating the law
• some taxes
• intoxicated driving debts
• homeowners’ association dues assessed after filing for bankruptcy
• retirement plan loans
• money borrowed to pay off non-dischargeable tax debt (for instance, the credit card debt incurred after using your account to pay a tax bill), and
• debts determined non-dischargeable in a previous bankruptcy.
A student loan won’t get wiped out either unless you can prove to the court that it would be a hardship to make you pay it. Most people are unable to meet the standard, however. It can be costly to file and litigate the lawsuit necessary to prove the case, as well. Additionally, any creditor can file a non-dischargeability complaint asking the court to determine that a debt shouldn’t be discharged in your case. To win, the creditor will need to prove that one of a variety of situations exists.
• You committed fraud (for instance, you wrote a bad check or lied about your income on a credit application).
• You charged a luxury item less than 90 days before you filed for bankruptcy.
• You intentionally harmed someone or damaged their property.
• You embezzled funds or stole money.
• You failed to list all creditors in your bankruptcy petition.
If you suspect that you might have non-dischargeable debts, or that a creditor might file a lawsuit against you, it’s probably not a good idea to represent yourself. Instead, consider speaking with a bankruptcy attorney. The lawyer can consult with you about the status of your debt and whether proceeding forward is in your best interests. However, keep in mind that even the simplest Chapter 7 requires you to fill out extensive paperwork, gather financial documentation, research bankruptcy and exemption laws, and follow the local rules and procedures.
When Is it a Bad Idea to File Bankruptcy Without an Attorney?
There are many reasons to file a Chapter 13 bankruptcy instead of a Chapter 7 bankruptcy. You may want to file a Chapter 13 bankruptcy because you wish to catch up on mortgage arrears, get rid of your second mortgage, cram down (reduce) your car loans, or pay back non-dischargeable priority debts, such as back taxes or support arrears. Or maybe you make too much money to qualify for a Chapter 7 bankruptcy. No matter what your reason is, most Chapter 13 cases are too difficult to file on your own. Chapter 13 bankruptcies are a lot more complicated than Chapter 7s. In addition to filling out the official bankruptcy forms (and perhaps some local forms), you must also design a proposed repayment plan, something that is very difficult to do without the expensive software that most attorneys use. Also, certain actions such as stripping your second mortgage or cramming down a car loan will usually require filing additional bankruptcy motions and paperwork with the court. As a result, even some attorneys will limit their bankruptcy practice to Chapter 7 cases because they feel they are not qualified to handle a Chapter 13. In fact, an overwhelming majority of Chapter 13 cases filed without an attorney get dismissed by the court. So if you are planning to file a Chapter 13, it is a good idea to hire a qualified attorney.
If You Have a Complicated Chapter 7 Case
Certain Chapter 7 cases are more complicated than others. Your Chapter 7 will usually be more complex if you own a business, have income above the median level of your state, have a significant amount of assets, or have creditors who can make claims against you based on fraud. If any of the above applies to you, you risk having your case dismissed, your assets being taken and sold, or facing a lawsuit in your bankruptcy to determine that certain debts should not be discharged. In that case, it is advisable to hire an attorney to handle your bankruptcy.
If You Are Not Comfortable Doing it on Your Own
If you have a simple Chapter 7 case, bankruptcy can be an intimidating and time-consuming process. You will need to accurately fill out many forms, research the law, and attend hearings. If you are not comfortable with any aspect of the bankruptcy process, you should consider hiring an attorney who will prepare the forms, attend the hearings with you, and guide you through the process.
Filing for Bankruptcy in Utah
Are you a resident of Utah and thinking of filing for Chapter 7 or Chapter 13 bankruptcy? If so, you will have to participate in credit counseling before you file, complete the bankruptcy petition and other required forms, and file those forms in the Utah bankruptcy court. After filing, you must complete debtor counseling before receiving your discharge. Although most of the bankruptcy process is governed by federal law, there is some Utah-specific information you will need to know before filing.
Pre-Bankruptcy Credit Counseling and Pre-Discharge Debtor Education in Utah
In order to qualify for Chapter 7 or Chapter 13 bankruptcy, you must show that you received credit counseling from an agency approved by the U.S. Trustee in Utah within the six month period before you file for bankruptcy. You’ll also have to take a debtor education course before you get a bankruptcy discharge.
Utah Bankruptcy Exemptions
Utah has a set of bankruptcy exemptions which help determine what property you get to keep in Chapter 7 bankruptcy and play a role in how much you repay unsecured creditors in Chapter 13 bankruptcy. Some states allow debtors to choose between the state exemption system and a set of federal bankruptcy exemptions but Utah is not one of them. In Utah, you must use the state exemptions–the federal bankruptcy exemptions aren’t available.
Completing the Bankruptcy Forms in Utah
When you file for Chapter 7 or Chapter 13 bankruptcy, you must complete a bankruptcy petition, a number of schedules containing detailed information about your finances, and several other forms, including a lengthy form known as the “means test” (for Chapter 7) and a similar form for Chapter 13.
Finding Means Test Information for Utah
When you file for bankruptcy in Utah, you must compare your income to the median income for a household of your size in Utah. If your income is less than the median, you will be eligible to file for Chapter 7 and, if you choose to file for Chapter 13, you can use a three-year repayment plan (rather than five years). This is called the means test. If your income is above Utah’s median income, you still might qualify for Chapter 7, but you’ll have to provide detailed information about your expenses and payments on secured debts in order to find out. Most Chapter 13 filers also have to provide this information.
Speak to an Attorney Before You File for Bankruptcy
If you are considering filing for bankruptcy, it is very important you have all the information you need, especially since bankruptcy laws tend to be detailed and complicated. Speaking to a bankruptcy attorney in Utah is the best way to ensure your rights are protected.
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
Domestic violence used to be a secret to be “kept in the family” or swept under the rug. But it’s now more prevalent in news and media than ever before. As a result, a lot of people are thinking about what constitutes domestic violence. Why do people stay in abusive relationships? How can family and friends help a loved one leave an abusive partner?
Domestic Violence, Legally Defined
Domestic abuse is a top public health concern. Homicide by an intimate partner is one of the leading pregnancy-associated causes of death, according to research. And yet many people do not understand the scope of abusive behavior. Early in their intimate relationship, victims may not realize they are experiencing domestic violence. They fail to take action and then it escalates.
The National Domestic Violence Hotline defines domestic abuse as “a pattern of abusive behaviors used by one person to gain or maintain control over another person in an intimate relationship.”
The victim is often a spouse (male or female). But they can also be a dating partner, a child or parent, a family member, or a roommate. It is a person with whom the abuser is in close proximity.
Most people think of domestic abuse as battering or assault, but there are several types of abuse:
Physical abuse is most likely to be seen by coworkers or health care providers. Victims often find ways to hide the evidence of the abuser’s violent behavior. But physical violence can lead to physical injury requiring medical care.
Sexual abuse may not be understood by the victim as abuse until it becomes sexual violence. Non-consensual sex, even within marriage, is sexual assault. Young people, in particular, need to be educated about dating violence.
Emotional abuse causes the victim to feel intense emotional distress. The abuser may verbally demean and socially humiliate their victim. They may engage in name-calling. Emotional abuse damages the victim’s self-esteem and sense of self-worth. Stalking, harassment, and threats are forms of emotional abuse; They are designed to instill fear in the victim.
Psychological abuse is controlling behavior that damages the victim’s mental health. They may think they are going crazy. They may develop post-traumatic stress disorder (PTSD).
Economic abuse or financial abuse is an extension of the abuser’s need for control. They may prevent a spouse from earning money or from having access to money. An abuser may steal money from an elder parent with whom they live.
Punishing Domestic Violence
While law enforcement once turned a blind eye to intimate partner violence, state laws now require an arrest and mandate penalties. Restraining orders are easier to get, at least initially. And federal and state laws are in place to prevent abusers from owning guns.
Survivors of domestic violence can sue their abusers in civil court to recover damages for their injuries.
Unfortunately, these remedies are only available after the abusive behavior or physical violence has already occurred.
Preventing Domestic Violence
Domestic abuse nonprofits and governmental agencies exist in every state. They provide information and training on how to identify the warning signs of abuse. They provide practical resources to help survivors of domestic violence create a safety plan to exit dangerous relationships. They provide referrals for safe places to shelter and offer victim hotlines in a variety of languages. And they undertake legal advocacy.
Help is a phone call away. But as many victims know, that phone call and those first steps can be extremely dangerous. Their lives are often at stake. If the U.S. wants to end the scourge of family violence, it needs to provide human services resources and physical and financial support to help victims break free once and for all.
Stopping Domestic Violence
There are a number of ways victims and other witnesses can stop domestic violence, which is defined as a violent act committed by one family or household member against another. For example, an abused spouse may petition a judge to issue an “ex parte” (or restraining) order against the abuser. In any event, victims should understand that they have options to living in an abusive household.
We can all take steps to stop domestic violence. If you or a loved one are trying to leave an abusive relationship, it’s important to remember that it’s the abuser who needs to change. However, your abuser may be unable or unwilling change and you should never have to endure abuse from anyone. Your number one priority should be safety for you and your loved ones.
Thinking of leaving an abusive relationship. Where to start?
First, plan for your safety. Contact the National Domestic Violence Hotline at 1-800-799-7233 or your local domestic violence outreach organization to learn more about how to create a safety plan or to discuss how to approach a friend about your concerns for his or her relationship. In addition, you or your loved one may want to attend a domestic violence support group.
Not feeling safe at home. Where to go?
If you need to immediately leave a home you share with your abuser, you can call a local domestic violence agency. They can give you information about how to enter the local domestic violence shelter or confidential motel voucher program. Shelters are frequently full and you may have to leave your area to find a safe, confidential shelter. If your abuser has not been trying to find you or is highly unlikely to try to find you, you may consider leaving to a regular, homeless women’s shelter.
Left the abuser. What can you do to stop him or her from coming after you?
A great legal option that can help to stop domestic violence is a protection order, which is a court order that says your abuser cannot come within a certain number of feet of you, your home, your car, your work, or your school. This doesn’t prevent an abuser from stalking or attacking you, but it does allow you to call the police for assistance if he or she violates the order.
How can you stop domestic violence? What can you do?
The best answer to the question of how to stop domestic violence, and the only way to permanently do so, is to end the cycles of control and abuse in relationships. This involves teaching children to respect their romantic partners by demonstrating respectful, healthy relationships with our spouses and partners.
We can also take more concrete steps in our daily lives to help achieve that goal, including:
Calling the police if you see or hear evidence of domestic violence.
Speaking out publicly against domestic violence (for example, if you hear a joke about beating your spouse, let that person know you aren’t okay with that kind of humor).
Referring your neighbor, co-worker, friend, or family member to a domestic violence outreach organization if you suspect they are being abused.
Considering reaching out to your neighbor, co-worker, friend, or family member that you believe is being abusive by talking to them about your concerns.
Educating others on domestic violence by inviting a speaker from your local domestic violence organization to present at your religious or professional organization, civic or volunteer group, workplace, or school.
Encouraging your neighborhood watch or block association to watch for domestic violence as well as burglaries and other crimes.
Donating to domestic violence counseling programs and shelters.
Being especially vigilant about domestic violence during the stressful holiday season.
Filing a Domestic Violence Lawsuit
Most acts of domestic violence result not only in criminal liability, but also civil liability for the perpetrator. This means that if you’re a victim of domestic violence, it’s possible to sue your abuser in civil court for your injuries under tort law.
Tort law provides civil legal remedies for people who are injured in some way by another, usually in the form of financial damages or injunctive relief (the court ordering someone to do or not do certain acts).
Criminal Proceedings Do Not Bar a Victim from Suing in Civil Court
A common misconception is that once a person has been tried for something in criminal court, he or she cannot be tried in civil court for that same claim. This isn’t true. Take the Goldman v. Simpson case, for example. O.J. Simpson was acquitted in criminal court for the murder of Ron Goldman, but Goldman’s parents sued Simpson for money damages in civil court and prevailed.
Just because your abuser has been tried in criminal court or you have obtained a restraining order against him or her does not mean you cannot sue your abuser in civil court. The concept of double jeopardy does not apply to civil cases, but only when there are multiple criminal prosecutions for the same crime.
Suing a Family Member
Traditionally, courts would not allow family members to sue each other for torts. This law was based on concerns about breaking down the family unit. Today, most state courts have moved away from this, reasoning that if family members have torts claims against each other, the family unit is probably already broken down, and those injured parties should have their day in court.
As it stands, Louisiana is the only state in the U.S. that still bars spouses from suing each other, except in certain circumstances. However, spouses can generally sue each other for intentional torts. An intentional tort refers to a deliberate action that causes harm to another person. Since many forms of domestic violence constitute intentional torts, such as battery, assault, and psychological abuse, these acts could constitute claims for a lawsuit even in a jurisdiction that would normally bar suits between family members. Another tort claim, the intentional infliction of emotional distress, may also be available if the abuser was stalking, threatening, or destroying property.
Things to Consider Before Filing a Domestic Violence Lawsuit
Often, victims of domestic violence have been robbed of their sense of control and of their emotional outlet. Suing your abuser can give them a sense of control and emotional relief. The types of damages potentially available to domestic violence victims include:
Lost wages
Medical expenses
Pain and suffering
Punitive damages (only available in some states)
Keep in mind that a great deal of stress is involved in any lawsuit. Lawsuits involving family members can be even more stressful because of the strain placed on family ties. It is often hard enough for victims to even make a police report or file for a restraining order against their abusers. Taking the abuser to court may be just as difficult. However, once victims realize their position, they may be ready to fight back. The act of taking their abuser to court may act as a form of closure for victims—a way to leave the past behind and start fresh.
Litigation can be very expensive. However, courts can force the abuser to pay your fees. Although unusual in these types of cases, attorneys sometimes work on a contingency basis in lawsuits involving money damages. If an attorney agrees to represent you under this fee arrangement, you won’t pay unless you win the case. To put it bluntly, when considering whether to file a domestic violence lawsuit, it matters whether your abuser has money or assets available to pay damages.
Orders of Protection and Restraining Orders
Survivors of domestic violence have several civil and criminal protection or restraining order options to protect themselves from further abuse. Although these orders won’t necessarily stop an abuser from stalking or hurting a victim, they permit the victim to call the police and have the abuser arrested if the order is violated.
Emergency Protection Orders
In many states, when the police encounter a domestic violence situation, one of the two parties involved in the dispute is required (or requested) to leave the home. Often, this person is the abuser, although the police can be mistaken about who the aggressor is. In about one-third of states, police officers are also authorized or required to remove guns when they arrive at the scene of a domestic violence incident.
In some states, the police can give the victim an Emergency Protection Order (EPO), which is a short-term protection order typically given to a victim by the police or magistrate when his or her abuser is arrested for domestic violence. An EPO is generally for limited period, such as three or seven days, which allows the victim time to request a longer-term protection order.
Protection Orders
All 50 states and the District of Columbia have statutes for some form of protection order. However, states call this protection order different things. For example, Illinois, New York and Texas call them protection orders or orders of protection, whereas California calls the same thing a restraining order, and Florida calls it an injunction for protection against domestic violence, it is simply known as a Protection Order in Utah.
A protection order is different from an EPO because it’s longer term, typically for one to five years, and in extreme circumstances, for up to a lifetime. A victim can renew the protection order if the victim still feels threatened by his or her abuser.
A protection order may include many different provisions, including:
No Contact Provision: Prohibiting the abuser from calling, texting, emailing, stalking, attacking, hitting, or disturbing the victim.
Peaceful Contact Provision: Permitting the abuser to peacefully communicate with the victim for limited reasons, including care and transfer for visitation of their child.
Stay Away Provision: Ordering the abuser to stay at least a certain number of yards or feet away from the victim, his or her home, job, school, and car. The stay-away distance can vary by state, judge or the lethality of the situation, but is often at least 100 yards or 300 feet.
Move Out Provision: Requiring the abuser to move out of a home shared with the victim.
Firearms Provision: Requiring the abuser to surrender any guns he or she possesses (about 2/3rds of states) and/or prohibiting the abuser from purchasing a firearm.
Counseling Provision: Ordering the abuser to attend counseling, such as batterer’s intervention or anger management.
Protection orders may include children, other family members, roommates, or current romantic partners of the victim. This means the same no contact and stay away rules apply to the other listed individuals, even if the direct harm was to the victim. Some states even allow pets to be protected by the same order, as abusers may harm pets to torment their victims.
Some states include as part of the protection order visitation and custody for children of the victim and abuser. These are generally temporary and can be modified by divorce or other future family court orders.
In order to obtain a protection order, you need to file the required legal papers with your local court, and follow your state law to present evidence at your hearing and to serve your abuser. The police can sometimes serve the papers for you.
Restraining Orders
A restraining order is an order requiring parties to a lawsuit to do or not do certain things. It may be part of a family law case, such as a divorce, or other civil case. Although this isn’t the same as a “domestic violence restraining order,” which is summarized above, domestic violence can be a factor in the underlying family law case.
Restraining orders may be requested “ex parte” meaning that one party asks the court to do something without telling the other party. If the restraining order is granted ex parte, then the other party is later permitted a hearing to present his or her side of the story. This is often the process for protection orders as well. Since restraining orders also vary by state, it’s important to consult with an attorney familiar with the law where you live. If a criminal case is pending, the district attorney may request or the judge may order a protection order for the victim of the crime.
Violation of Protection Orders
Violation of a protection order can be treated in one of three ways: as a felony, misdemeanor, or contempt of court. Felony charges are typically reserved for either repeat or serious violations. Sometimes violations are considered both contempt of court and a new domestic violence charge. In many states, police policy is to arrest violators of these orders automatically.
Enforcing Orders of Protection in Different States
Domestic violence survivors may move as part of a plan to keep them safe from a former abuser. The Full Faith & Credit Clause of the Constitution and federal law require valid protection orders to be enforced where it’s issued and in all other U.S. states and territories as well. Therefore, if an abuser stalks a victim in his or her new state of residency, the police must uphold the protection order from another state.
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 84088United States
Telephone: (801) 676-5506
Jimi Hendrix, the legendary guitarist, died without a will in 1970, leaving behind an estate that’s currently valued at more than $160 million. And now, more than five decades later, the bitter battle over its control rages on.
This is a prime example of what could go wrong when people die intestate – or without a will. It leaves your loved ones vulnerable, and more often than not, you’ll have all sorts of people coming out of the woodwork to claim a stake.
You don’t have to be a wealthy celebrity to have a will. If you have any assets that matter a great deal to you, it’s always better to decide while you’re still alive who should get them. If you don’t, then a probate lawyer would have to step in after your death to help your surviving beneficiaries get their share of your estate.
So, what is a probate lawyer, and what can they do for you? Here’s everything you need to know.
What does probate mean?
Probate is a legal term that refers to the process of proving a will. It means making sure that the deceased’s estate is distributed fairly among the rightful heirs, whether or not there was a will left behind.
If there was no will left behind, the process must go through probate court to decide how the assets will be distributed among the deceased’s loved ones. For smaller estates, the probate process doesn’t usually take long. The matter can be concluded in a matter of weeks.
However, probate for bigger estates can take several years, especially when individuals with legitimate claims to the property and assets file petitions in court to contest the will. So, as you can expect, this could end up dragging out the process even longer.
What does a probate lawyer do?
Probate lawyers wear many hats. The exact role they play in a probate process ultimately depends on whether or not the decedent had drafted a will before their death. Here’s what a probate lawyer does in both instances.
The role of a probate attorney when there’s a will
If an individual dies testate or with a legal will, the concerned parties may retain a probate lawyer in an advisory role to offer guidance to the concerned parties. These include the beneficiaries or the estate executor.
For instance, the attorney may inspect the will to check that it wasn’t created under duress or in a way that would contravene the interests and wishes of the person. This is particularly important if the decedent was elderly and suffered from dementia.
The role of a probate attorney when there’s no will
If an individual dies intestate, the decedent’s estate is distributed among the rightful beneficiaries according to the intestacy laws in the state where the property is located. Although these laws vary widely, in most states, the surviving spouse receives all the property.
In such instances, a probate attorney may be hired to help the estate administrator – who plays a similar role to the executor – in the distribution of the assets according to the state laws.
Keep in mind that regardless of what the deceased’s wishes were or the needs of the family members, the probate lawyer can only act within the confines of the state’s intestacy laws.
If one of the deceased’s relatives wants to become the estate’s administrator, the probate lawyer can help file renunciations with the probate court from all the other relatives. A renunciation is a legal statement from all the other beneficiaries renouncing their right to administer the decedent’s estate.
Other roles of a probate lawyer
Aside from that, a probate attorney also helps the administrator/executor to:
Settle the deceased’s bills and debts
Collect and manage life insurance proceeds
Determine whether the estate owes any taxes
Find and secure all the deceased’s assets
Get the decedent’s assets appraised
Manage the estate’s checkbook
The former works with living clients on how their estates should be administered when they die, while the latter deals with the estate administration process after the individual dies.
So, what percentage does a lawyer get for settling an estate? The answer to this varies widely and will likely depend on the complexity involved in the probate process.
One lawyer may charge you a flat fee while another may prefer to bill you by the hour. However, most charge a percentage of the estate’s value. This could be anywhere between 10 and 40 percent of the settlement amount.
When does an estate have to be probated?
Contrary to what you might believe, not every estate has to go through the probate process. It is only required when there are no other means through which the decedent’s property can be transferred to the estate heirs.
If the individual had taken steps to distribute the assets before death, the estate doesn’t need to be probated. For instance, life insurance policies and retirement accounts usually have a designated beneficiary. These go directly to them on the death of the principal, subsequently by-passing the probate process.
The same goes for bank accounts with a TOD (transfer on death) or POD (payable on death) beneficiary designation and jointly owned assets with survivorship rights. In the latter, the surviving owner automatically inherits the deceased’s share of the property or asset.
In case you’re wondering how to avoid probate, here are three easy steps you can take:
Name beneficiaries on all the accounts that you own. These include bank, brokerage, retirement accounts, and life insurance policies, and pension plans.
Create a trust that leaves your assets and property to your beneficiaries upon your death. This allows for asset distribution without getting the courts involved.
Hold your property jointly with your spouse or partner. That way, ownership automatically passes to them upon your demise.
Things to do before you hire a probate lawyer
Funeral expenses. Sorting through personal possessions. Emotional healing.
Life after the death of a loved one comes with a certain set of challenges. But haggling over property or money shouldn’t be one of them.
According to Forbes, over $30 trillion will be inherited in the next 30 years. And given the money-motivated culture we live in, its no wonder children and grandchildren all have their hands out — waiting for a piece of the estate pie.
Hiring a probate attorney can help avoid many of the issues associated with probating a will. It also gives ailing family members a sense of peace in their final days.
Here are the things to do when hiring a probate attorney and how it might help salvage family ties.
Choose An Estate Planning And Probate Attorney Based On Your Situation
No two wills or estates are exactly the same. Everyone’s wishes are different. And everyone places value on different things. Some people leave property, money, and other valuables to family and friends. While others have more specific requests. Depending on your age, you may need to choose legal guardians for your children in your will.
Find an estate planning and probate attorney that specializes in your type of estate planning. Some lawyers are highly skilled in handling large sums of money or real estate. If you own a family home or business, this type of estate planning and probate lawyer is best.
Like any other business, an estate planning and probate attorney is providing a service that you’re paying for. But probating a will is about more than just the money side of things.
Find an attorney who is sympathetic, available, and compassionate. If you’re dealing with a probate attorney, it means you’re also dealing with the loss of a loved one.
Emotions are running high. You need a probate attorney who can patiently answer your countless questions without annoyance. Signs that your probate lawyer may not be the best-fit include:
Unanswered phone calls and questions
Making rushed decisions
Not explaining the details of the process
Unavailable
Insensitive to your situation
A quality probate attorney will exhibit the following characteristics:
Sympathetic to your needs and your recent loss
Explains the probate process in detail
Available to answer questions
Doesn’t take sides in the probate process
Forthcoming with all information
Use your gut instinct when choosing an estate probate attorney. While getting through the probate process should be swift and smooth, it shouldn’t be rushed. Don’t be afraid to interview several lawyers before making a final decision.
Collect All Necessary Paperwork
The probate process doesn’t fall squarely on the shoulders of the attorney. You need to bring important and necessary information to the table. The more organized and prepared you are, the smoother the process will go.
This holds true for both before and after the probate process.
If you’ve been named the executor of the will and are entering the probate process, bring these documents to your first meeting:
Copies of the death certificate
Last will and testament and any codicils
Bank statements and other financial documents
A list of your loved one’s assets
A list of the names, addresses, and contact information for individuals named in the will
You may not have all of this information readily available for your first meeting, and that’s okay. But the more information you can collect, the fewer questions your probate lawyer will have.
Be Realistic About Potential Family Resistance
Family drama is all too common during the probate process. Even the most detailed wills are questioned and picked apart based on greed or entitlement.
Do you have a strained relationship with your siblings? Did your loved one leave all of their most valued possessions to a single family member? If you sense there’s trouble ahead when it comes to carrying out your loved one’s wishes, you’re probably right. Sharing this information with the probate attorney is essential.
While you can’t prevent family members from contesting the will, knowing you may meet resistance can help both you and the probate lawyer prepare. You can collect additional documents that support what’s already outlined in the will.
The executor of the will (if it’s you) is responsible for distributing property, money, and assets according to the wishes of the deceased. But they’re also responsible for paying off any debts and creditors of the deceased. This can be a stressful position.
Being named as the executor means the deceased trusted you with carrying out their final wishes. But don’t be surprised if this puts you in a compromising position with other family members.
Understand What Probate Is And If You Can Avoid It
Most people believe that probate is inevitable following the death of a loved one. But this isn’t always the case. Probate is the legal distribution and transfer of assets following someone’s death. And is often used when a person owns property or real estate only listed in their name.
Even if their will leaves the property to a family member, legal steps are required to carry out this inheritance. Probate is common when handling large, complex estates that include property, large sums of money, or multiple assets.
If your loved one created a simple will leaving mostly possessions to family and friends, probate may not be necessary. Avoiding probate means the following:
The ability to keep the proceedings private and out of the court system
Less legal fees and taxes
A more speedy and less complex settlement of the will
A reputable attorney will advise you on whether or not the will in question needs to be probated.
Handle Your Loved One’s Estate With Ease
Handling the death of a loved one is difficult in and of itself. When you add carrying out their final wishes to the mix, it can be emotionally draining.
Hiring a probate attorney can help ease your mind during this difficult time. Finding the right lawyer means the difference between easy probate and a long, drawn-out process.
If you’re sold on the idea of hiring a probate attorney to help you through the Will or probate process, but you’re not sure how to go about hiring the best attorney these are some great tips to follow when hiring a probate lawyer that will ensure that you find the best probate lawyer for you. Ask the right questions. Once you have a few free consultations set up, you want to ask the right questions during these consultations, to make sure that you fully understand the attorney’s qualifications. Ask questions such as:
Do you have any client testimonials?
What would you do in certain situation?
What do you charge?
Check out the reputation. Client testimonials are great ways to get a feel for customer satisfaction, but they’re not the only way. Sometimes, lawyers will only show you the best reviews that they get, not necessarily the reviews that give the most accurate picture of customer satisfaction. For this reason, you should consider asking friends or coworkers for suggestions of probate lawyers that they have used in the past. This feedback will probably be honest and it will come from people that you can trust.
Finding the right probate lawyer can be a difficult process, but it doesn’t have to be! If you follow these tips, you will be able to find the right lawyer for you!
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
