Real Estate Lawyer South Salt Lake

If your property has been included in a comprehensive plan, consult an experienced South Salt lake Utah real estate lawyer.

The real goal of a comprehensive plan is to decide where a community wants to go in the future. There is a normative aspect to the comprehensive plan. Good planners will survey their residents and businesses to find out what they want and what they want their community to look like. The real purpose of the comprehensive plan is a needs assessment and chart for the future of a city, town, or a county. It is an effort to answer questions such as: Do we need more housing in the city? Do we need more parks? Is another school needed, or more retail shopping or should we maybe enlarge the tax base by trying to encourage a new factory or business? These are the most general questions that a comprehensive plan tries to address, and the successful plan then tries to make sure that the land use laws for the community reflect the choices that have been made in the comprehensive plan.

Once a comprehensive plan has been developed, it is subject to public debate, hearings, and eventually a vote by a city council or the body adopting it. This plan is often considered a law or an ordinance and in some cases might require more than a simple majority to adopt it. The important point to note is that a good comprehensive plan is subject to long, intense, and open discussion. It permits broad citizen input, and the eventual adoption should not come as a surprise to anyone.

A second major point when it comes to a comprehensive plan is that, once adopted, it does not go onto a shelf or sit in someone’s computer. Comprehensive plans are “alive.” By that, they are meant to be blueprints for everything else a community does. They should be guides for the economic, housing, and other types of development that a community plans for the next five or ten years. Moreover, comprehensive plans are the cornerstone for many other documents and actions undertaken by the government. Once a comprehensive plan has been adopted it is, for example, the basis for a zoning code. This means that in terms of a hierarchy, the comprehensive plan is the most important document, and then after that, the zoning ordinance or code must be in accordance with it. Conflicts between the two generally mean that the comprehensive plan prevails. Or, phrased another way, if the zoning ordinance does not comply with the comprehensive plan, the former is illegal.

Combined, the comprehensive plan and the zoning code are really the master plans for economic development and planning for a community. Together they should set out specific goals and a direction for what a community wants to look like in the future. Together they should state, for example, that a community would like to turn some vacant land into a future home for a mall. Or, perhaps together they might state that land currently zoned industrial should be used in the future as a mixed-use residential area with some shopping and maybe some recreational activities. The hope in doing this is that land comped and zoned for a specific use will attract the appropriate investment and interest to make that happen. A local government, such as a city, can also make that possibility more real by doing things such as making infrastructure investments that will facilitate the development they would like to see. These infrastructure investments might be money for roads, water, or sewer lines, or, they might be resources that make it less costly for a developer to build housing or a shopping mall.

Below the level of a comprehensive plan and a zoning ordinance is the creation of a specific plan for a particular project or parcel or parcels of land. This plan too must be in accordance with the comprehensive plan and zoning. If it is not, either the project cannot be done or the comprehensive plan and the zoning must be changed to accommodate or permit this project. But what type of project is in question here? Almost anything. Reference to a specific project means any type of development or public works project proposed by either a private party or by the government or governmental agency. For the former it could be a project to build housing, or maybe a new store, shopping mall, or even perhaps an industrial park or just about anything else that a private party might want to build. For a governmental agency or unit, it could include any of the above; or it might be a road, park, or cemetery; or the agency might want to clear and develop land that will make it possible for a developer to be able to accomplish some project that needs land. The critical issue here is that there is some parcel or several parcels of land within some community and someone wants to develop them. The assumption here will be that the land aimed to be developed is privately owned and it would need to be acquired in order for the project to happen. This is where the government and eminent domain step in.

Any project where eminent domain is involved, or where some type of government action is required, is going to need to be approved by the local government. This may also be true when no government money or action is required. The purpose of the hearings and approvals is to make sure that the project is compatible with applicable zoning and comprehensive plan requirements, that the proposal meets other housing or building code requirements, or that it otherwise complies with all applicable laws that will affect the proposed use and properties in question. The hearings and governmental approval are often also informational. They are in part to inform public officials about a proposed project, and also to provide information to neighbors and other citizens. Finally, these initial hearings may also be necessary if eminent domain is to be used because they may begin the process of helping the government decide if there is a valid public use associated with the project such that it could take property if necessary. Overall, these hearings on a specific project are important in making it possible to develop some property.

At some point during these hearings, the developer and the jurisdiction or government in question will identify specific properties or parcels needed. This may have already occurred in the early design stage when the initial plan for the project was presented. At that point, the government or the developer might have already owned all the property needed for a project, or it might have already identified the land that it needed or wanted, even if neither of them already owned the property in terms of a fee simple absolute. However, in some cases, no specific parcels of land had been designated. In either case, at some point in the project review the property needs will be determined, including ones that need to be acquired from other owners. This property identification will include showing them on a map, but more important, this stage in the process seeks to determine the official legal description for the properties, as well who the owners are. This means asking who has a legal interest in the property.

Owners may have already been involved or contacted during the preliminary planning stage; they may have attended earlier hearings; or they may in fact be a partner or involved already with the project in some way. But at some point, owners need to be officially notified that their property is being considered for some type of development project. With almost any project that involves a public works project or a private development, the starting point begins with seeking the cooperation of the property owners. While the image may be that “big, bad, ugly developers” come into town and force owners to sell their property or threaten them with eminent domain, the reality is that most of the time efforts are first made to negotiate with property owners in order to convince them to sell their property. Almost no one wants a court fight that will drag out for years and cost both sides tens of thousands of dollars or more. The effort will be to convince owners willingly to sell their property.

If owners agree to sell their property, then the issue is price. How much do owners deserve for their property? Constitutionally, the standard is fair market value. This, of course, makes a lot of sense. If an owner plans to sell her property, she would be a fool (or very generous!) to sell her property for less than the fair market value. The very definition of fair market value that courts often use—what a willing buyer would pay a willing seller—is what owner and developer or local government will try to identify. The two will simply negotiate a price that both parties believe is fair. Three ways to decide what the fair price is are often used to guide negotiations.

First, both sides will look to comparable sales of similar property. By that, both sides will look at other properties that are similar in as many respects as possible in order to determine price. This might mean looking at the price that other homes in similar neighborhoods sold for in the last three or six months. This is the same process that realtors often use when trying to price property. A second way to determine a fair market value is the “replacement cost,” meaning, what it would cost to replace the home, for example, if it had to be built from scratch today. This is similar to a test used by insurance companies when writing policies. Often property owners will purchase policies for the replacement cost of their homes or businesses. Finally, a third test might be to look at the income stream produced by a specific property.

This test is more common with businesses and rental property. Here, one seeks to determine the value of the property as an investment asset. This would be the type of evaluation used most commonly in business negotiations involving the sale of business property.

This preliminary stage when owners and sellers are negotiating the determination of fair market value may be more or less formal. By that, a less formal attempt at determining a price may simply be estimates of value based upon quick estimates of the comparable value, replacement, or income streams. However, in some cases, the appraisal process might be more formal if there is a serious dispute. At this point, outside experts may be brought in to implement a formal appraisal process. Eventually, if the owner and buyer cannot agree on a price and eminent domain is used, a court will hold a hearing regarding what the fair market value is, and formal appraisals will be ordered. Based on those appraisals, a court will fix the fair market value.

As part of negotiating fair market value, an owner may also receive relocation costs or assistance. This assistance might include costs associated with looking for a new home or business location, the costs of moving and relocation, and perhaps any other incidental costs. All of this is subject to negotiation. Additionally, if the property has tenants, they too may be awarded compensation to buy out their leases, to pay for relocation, or to address any expenses they may also have. Or in some situations, buyers may condition a sale that requires owners to deliver to them property that is already free of tenants. This means the owners may have to do their own negotiations with their tenants. This might involve buying out their tenants, or they might have what is called a “condemnation clause” in their leases. A condemnation clause would inform tenants that, in the event that the property is taken by eminent domain, the leases would automatically expire within a certain number of days, weeks, or months.

South Salt Lake City Utah Real Estate Attorney Free Consultation

When you need legal help with real estate in South Salt Lake City Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We can help you with all real estate issues. Quiet Title. Partition Actions. Zoning. Boundary Disputes. CC&Rs. Declarations of Condominiums. And More. We want to help you.

Ascent Law LLC
8833 S. Redwood Road, Suite C
<span itemprop=”addressLocality”>West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Ascent Law LLC

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Family Lawyer Riverton Utah

If you are thinking how your properties and assets will be distributed after your death, speak to an experienced Riverton Utah family lawyer.
Our legal system—and our social system—has its own conventional definition of property, which excludes, for example, public office. The economic and social system is based to a large extent on the concept of private property. Assets—things of value—can be “owned” by individuals. This means that people have a full bundle of rights over their assets. The bundle of rights includes the right to buy and sell these assets and, what is germane to our subject, to dispose of the assets at death, as a general rule. Of course, two or more people can share ownership rights. Husbands and wives can have joint bank accounts. In some apartment buildings, tenants “own” their apartments, but there is a kind of collective ownership of lobbies and other common areas. Other buildings are “co-ops.” In modern societies, social collectives—families or clans—do not usually “own” property.

Succession Laws

To enable orderly disposition of the affairs of someone who dies, the law provides machinery for payment of debts, death taxes, and expenses of administration, and for distribution of remaining assets to those entitled to the estate under the terms of the will or, if there is no will, under the applicable intestate laws. This is done by appointment of a personal representative, generally called an “executor, ” if named in the will or an “administrator” if not named in the will. The personal representative has the right and obligation to take possession of the property and to apply it to the payment of funeral expenses, debts, and the costs of administering the estate. Costs of administration usually include compensation to the personal representative and a fee to counsel for the estate. The remainder is distributed to the individuals named in the will.

You don’t need to have a will. If you die without a will, the State of Utah will only be too happy to deal with your property and distribute it according to Utah intestacy laws. So your money may end up in the hands of someone who you never wanted to give your money to.

When there is a probated estate, the deceased is much more likely than not to have a will. To be sure, not everybody who actually has a will ends up with a probate file. Sometimes a will cannot be found. If the estate is small, the family may not bother to file the will in court. Poor people usually die intestate, and their property rarely goes through probate.
If there is no will, the person is said to have died “intestate,” and the estate is distributed according to the intestate laws of the state where the deceased lived (if the estate includes land located in another state, the intestate laws of the second state apply to the land). The intestate laws in most of the United States derive from English common law. The surviving spouse, if there is one, gets a share of the estate, usually one-third or one-half (the fraction varies depending on the number of children), and the rest of the estate goes in equal shares to surviving children and descendants of children who have died.

The descendants divide the equal share the deceased child would have received if living. If there are no children or descendants of children, the property that does not go to the surviving spouse will typically go to parents and, if there are no parents, to brothers and sisters. Many states limit inheritance by remote relatives; if there are no next of kin closer than some designated degree such as first cousin or children of first cousins, the property that does not pass to the surviving spouse will go to the state.

The intestate pattern is frequently unsatisfactory to a married person who primarily wants to make sure that his or her spouse will be adequately taken care of and wishes to provide for children or others only out of funds not likely to be needed for the spouse. Intestate laws may also fail to take care of the special cases of adopted children or stepchildren and, of course, make no provision for non-relatives or favored charities.
In the absence of a will, the probate court must select an administrator to settle the estate. Preference is usually given to those who will inherit under the intestate laws or to their nominees. Depending upon the family situation, these may or may not be persons the deceased would have considered qualified.

If minors are among the next of kin of someone who dies without leaving a will, it will usually be necessary, unless the amount involved is small, to have a guardian appointed by the court to receive their shares of the estate. In many states, the court will not appoint a surviving parent or other close relative who might be the very person the deceased would have chosen.

The expense of settling an intestate estate usually is higher than for an estate administered under a will. The extra costs can arise in various ways. Speak to an experienced Riverton Utah to know how you can make your own will.

Changing your will

Generally speaking, the law has stood firm on one crucial point. The law will not take into account the mere fact that a will is old, out-dated, and doesn’t seem to fit the testator’s present situation or conform to his later wishes. The message is plain: if your situation changes, then change your will. Otherwise, the old will stands.

To err is human. This is true for lawyers as well as for ordinary people. Lots of wills have mistakes in them—spelling errors, grammatical errors, ambiguities, words or whole paragraphs left out, words or whole paragraphs put in by mistake, and so on. Lawyers who draft wills proofread them carefully, for the most part; but inevitably mistakes creep in, through carelessness or sheer ignorance.

Standard doctrine once insisted that courts had absolutely no right or power to correct a mistake in a will. If a will left money to Milly instead of Billy because somebody’s finger slipped and nobody caught the mistake, then Milly would get the money (if there was a Milly). Wills were to be read literally. Courts refused to listen to testimony, or admit evidence, which contradicted what the will itself said. Even if the lawyer who drafted the will admitted the mistake, and beat his breast and cried out “mea culpa,” the will would stand as written.

No doubt typos and other mistakes are common enough in wills. Rarely do they make much of a difference; and as we know, only a tiny percentage of wills are ever challenged in court. The case law does show a strong trend toward relaxing the formalities—at least somewhat.

No contest clause

Many wills also try to protect themselves with no-contest clauses. These are standard clauses that threaten to disinherit anybody who contests the will, or leave one dollar to anybody who does so, or words to that effect. Of course, if you contest a will successfully, the no-contest clause dies along with the will. And if the will left you nothing, you have nothing to lose. The clause can be effective, on the other hand, if the will left you something, but (in your opinion) not enough. Contesting the will could cost you the something, and you would end up with nothing at all.

Contesting a will

If you want to contest a will, consult an experienced Riverton Utah family lawyer.

To contest a will, too, you have to have “standing.” You cannot contest unless you would gain personally if the will failed, in whole or in part. If your father disinherited you, and you are an “heir-at-law” (someone who would be entitled to a share if your father died without a will), then you have “standing” (a right) to contest. So too if you were supposed to inherit money under an earlier will.

Even if you have standing to contest, you must have a valid legal reason. That the will was unfair, mean, or unjust is simply not (formally) a reason. Another non-reason, for the most part, is that the will fails to reflect what the dead person actually wanted to do. This might be perfectly true: it might be obvious that he or she planned a new will and never got around to it. The courts on the whole refuse to listen to arguments about intention, or to receive any evidence of it, unless there was an actual will.

On what basis, then, can you contest a will? You can say that it is not the dead man’s will at all, that the will was a forgery. This is not a very common claim.

Fraud is another basis for contesting a will. But this too is a rare claim, and rarely successful. The books and the cases talk about “fraud in the inducement,” and “fraud in the execution.” Fraud in the inducement means “willfully false statements of fact,” that intends to deceive testator and induce him to make a will, and without which he would not have made such a will.” Lies about the will itself—the document—which induce the testator to “execute an instrument of whose nature or contents he is ignorant,” constitute fraud in the execution.

A disappointed heir can also contest a will by claiming it was not properly executed. The statutes set out requirements for a valid will, and they have to be followed. In fact, very few wills have fatal flaws. There are, however, plenty of decisions on technicalities: whether the witnesses and the testator are in each other’s “presence,” whether the signature was in the right place, whether the will was properly signed, and so on. Enough decisions, in short, to provide editors of casebooks with plenty of material to fill their pages. Still, such cases represent a tiny minority of contested wills, itself a tiny minority of wills filed in court. In fact, over 99% of all wills are properly executed. This is almost always true when a lawyer is involved. Complying with the statutes is not rocket science. If you follow a few simple rules when the client comes in to sign his will, there is almost no chance of making a mistake. Any lawyer, unless he is utterly incompetent, can guarantee, with close to 100% assurance, that a document she prepared, and which was signed and witnessed in the office, was properly done. Besides, as today’s courts become more indulgent, it is getting harder to break a will by showing some minor flaw in execution.

Lack of capacity” means either that you are too young to make out a will or are, to put it bluntly, too deranged or demented to do so. Too young is almost never grounds for a contest. The statutes typically say that you have to be an adult to execute a will.

Any will is vulnerable. Newspapers are eager to print bizarre or intriguing stories about will contests, especially if the dead person was rich or famous. But such accounts can be misleading. When all is said and done, it is easy to claim the testator lacked capacity, and hard to convince a judge or jury that this is true. The courts have to draw a line between people who are somewhat eccentric and those who, at least in the eyes of contemporaries, would be considered downright insane.

Conventional standards of the times determine what is considered insanity or depravity. The courts repeat certain stock doctrines endlessly. But in truth, the cases turn on their particular facts. Contests usually fail; still, results are not always predictable. There are cases where the testator seems senile, or a lunatic, or hopelessly drunk and befuddled, or even an inmate of a mental institution; and yet the will passes muster. Courts routinely state that a person does not need much in the way of brain cells to make out a will. The “test” for testamentary capacity is not the same as the “test” for the capacity to enter into a contract, or to function very well at all (financially speaking). Some cases seem to stretch this point to the limit. The court can always say that the testator made out the will during a “lucid moment.”

Don’t let your near and dear ones miss out on receiving a share in your assets once you are gone. Speak to an experienced Riverton Utah family lawyer today.

Riverton Utah Family Lawyer Free Consultation

When you need legal help with a family matter in Riverton Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We can help with estate planning, asset protection, divorce, child support, child custody, alimony, divorce modifications, child custody order, criminal defense, DUI, Elder Law, Guardianships, Conservatorships, and much more. We want to help you.

Ascent Law LLC
8833 S. Redwood Road, Suite C
<span itemprop=”addressLocality”>West Jordan, Utah
84088 United States
Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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Business Law In Utah

Business Law In Utah

Business law encompasses all of the laws that dictate how to form and run a business. This includes all of the laws that govern how to start, buy, manage and close or sell any type of business. Business laws establish the rules that all businesses should follow. A savvy businessperson will be generally familiar with business laws and know when to seek the advice of a licensed attorney. Business law includes state and federal laws, as well as administrative regulations. Let’s take a look at some of the areas included under the umbrella of business law. Much of business law addresses the different types of business organizations. There are laws regarding how to properly form and run each type. This includes laws about entities such as corporations, partnerships and limited liability companies. There are many laws that concern managing a business because there are many aspects involved in managing. As you can already see, running a business will involve a lot of employment law and contract law.

While Utah has not yet adopted the Uniform Deceptive Trade Practices Act, the state has enacted several statutes within its Consumer Protection and Criminal sections that prohibit sellers from intentionally misleading buyers. These laws prohibit everything from mislabeling food products to altering a used car’s odometer. Utah’s laws prohibiting deceptive trade practices are generally limited to prosecuting scams after they happen. Therefore, consumers must do their best to avoid these swindles before they happen. A state consumer protection office can give you the most up-to-date information on local scams, and receive reports about a person or local business engaging in deceptive business practices. State deceptive trade statutes can be as confusing. If you would like legal assistance regarding a consumer fraud or a possible deceptive trade practices matter, you can consult with a Utah consumer protection attorney.

In Utah, pyramid and Ponzi schemes are illegal under the Pyramid Scheme Act. A pyramid scheme is a sales device or plan where a person makes what is essentially a worthless investment that is contingent upon procuring others who must also invest and procure other investors, thereby perpetuating a chain of people. The Beehive State outlaws participating in, organizing, establishing, promoting, or administering a pyramid scheme. Pyramid or Ponzi schemes are also considered deceptive acts or practices prohibited under Utah’s Consumer Sales Practices Act. The following is a quick summary of Utah pyramid and Ponzi scheme laws.

Utah Pyramid and Ponzi Scheme Laws

What is prohibited: Knowingly participating in, organizing, establishing, promoting, or administering a pyramid scheme. Knowingly organizing, establishing, promoting, or administering a pyramid scheme is a third-degree felony punishable by up to 5 years in prison and up to $5,000 in fines. Knowingly participating in a pyramid scheme and receiving compensation for procuring other investors is a Class B misdemeanor punishable by up to 6 months in prison and up to $1,000 in fines. An injured party may file an action to recover damages and the court may also award interest, reasonable attorney’s fees, and costs. A pyramid or Ponzi scheme is also a deceptive act or practice and under the Consumer Sales Practices Act, the Division of Consumer Protection may issue a cease-and-desist order and impose up to $2,500 in administrative fines for each violation. The Division of Consumer Protection may also seek a restraining order or injunction to stop a pyramid or Ponzi scheme. If the injunction is violated, the court may impose up to $5,000 each day in fines for each violation.

Wage and hour laws help ensure that employees are paid a fair wage by providing them with certain rights. The federal wage and hour laws are contained in the Fair Labor Standards Act (FLSA), and provide minimum standards that the state laws may not dip below. States have the power to enact their own wage and hour laws, as long as the state law doesn’t violate the federal FLSA. Utah has chosen to enact its own minimum wage rule, and the following chart provides a brief overview of this law.

Utah’s minimum wage law doesn’t apply to the following workers:

• Any employee entitled to a Federal minimum wage as provided in 29 U.S.C. Sec. 201 et seq. of the FLSA

• Outside sales persons

• Employee who are members of the employer’s immediate family

• Employees who provide companionship services to people who (because of age or infirmity) aren’t able to care for themselves

• Casual and domestic employees

• Seasonal employees of nonprofit camping programs, religious, or recreational programs, and nonprofit or charitable organizations

• Employees of the USA

• Prisoners employed through the prison system

• Agricultural employees who mainly produce livestock, harvest crops on a piece rate basis, worked as an agricultural employee for less than 13 weeks during the previous year, or retired and performs incidental work as a condition of residing on a farm

• Registered apprentices or students employed by their educational institution, or

• Seasonal hourly employees employed by a seasonal amusement park

Employing Minors

A “minor” is any person under 18 years old. In Utah, a minor employee must be paid at least $4.25 per hour for the first 90 days working for a particular employer, and then the minor must be paid a minimum wage of $7.25 per hour.

Tipped Employees

A “tipped employee” is a worker who regularly receives tips from customers. For example, waiters and waitresses are traditionally tipped employees. An employer may credit tips received by tipped employees against the employer’s minimum wage obligation. An employee must receive at least $30.00 in tips per month before the credit is allowed. Tipped employees can be paid as little as $2.13 per hour, so long as this base pay combined with the employee’s tips equals at least $7.25 per hour.

Additional information about tipped employees:

• Service charges that are imposed on a customer don’t qualify as tips

• Tip pooling or sharing among employees who regularly receive tips qualifies

• Dishwashers, chefs, cooks, janitors, and other employees who don’t regularly receive tips from customers don’t qualify as tipped employees

Enforcement of the Minimum Wage

If an employer in Utah repeatedly violates the minimum wage law outlined above, that employer has committed a Class B misdemeanor. A Class B misdemeanor is punishable by up to six months in jail, and/or a fine of up to $1,000. An employee can bring a civil action against his employer in order to enforce his rights under Utah’s minimum wage laws. If the employee wins in court then he is entitled to injunctive relief and may recover the difference between the wage paid and the minimum wage, plus interest. If you’re an employee in Utah and feel that your employer has violated Utah’s state labor laws, you can file a claim with the Division of

Antidiscrimination and Labor.

• A “workweek” can be any 168 consecutive hours. The FLSA allows employers to set their own workweek. Overtime hours must be paid at a rate of at least 1½ of the employee’s standard pay rate.

Utah Antitrust Laws

As consumers, we’re always wondering what’s going on behind the scenes in the “free market.” Are a few companies conspiring to set an inflated price? Or uniting to artificially control supply? And fellow businesses may wonder if their competitors are colluding in an effort to undercut competition. As long as the battle for sales is open, transparent, and above board, we’re generally okay with it. That’s why the State has strict laws created to make sure pricing is fair and to protect open markets. State antitrust laws prohibit companies gaining an unfair competitive advantage in the consumer market via collusion between companies. These laws will also try to avoid monopolies by blocking certain mergers and acquisitions as well. In order to enforce these provisions, Utah law allows private citizens, as well as the state attorney general, to bring lawsuits against companies for antitrust violations. If successful, a citizen may recover attorneys’ fees and the cost of the lawsuit.

Antitrust Enforcement

Along with Utah’s antitrust statutes, there are numerous additional business regulations designed to protect free trade and commerce. The United States government uses two federal statutes, the Sherman Act and the Clayton Act, to assist states in prosecuting antitrust claims by prohibiting any interference with the ordinary, competitive pricing system, as well as price discrimination, exclusive dealing contracts and mergers that may lessen competition. If you suspect a person or business has committed an antitrust violation, you can report it the Utah Attorney General’s Markets and Financial Fraud Division. As with many statutes covering corporate malfeasance, state antitrust laws can be as complicated as the conspiracies they are intended to prevent. If you would like legal assistance regarding an antitrust matter, or if you are interested in understanding the rules and regulations regarding your business, you can consult with a Utah antitrust attorney in your area.

Interest Rates Laws

States may craft their interest rate laws depending on the type of credit or loan involved. By restricting the amount of interest a creditor can charge, these laws are designed to help consumers avoid crippling debt and deter predatory lenders. Utah’s maximum interest rate is 10% absent a contract, and charging more than the legal rate, (known as “usury”) is a felony. Interest Rates on Judgments Federal post-judgment interest rate as of Jan. 1 of each year plus 2%; judgment on contract shall conform to contract and shall bear interest agreed to by parties The easiest way to prevent the financial pitfalls of high interest rate credit cards is to avoid credit card debt entirely. This is certainly easier said than done, but one of the best strategies for staying out of debt is to use a credit card responsibly and pay off the entire balance quickly — every month, if possible. For those already in significant credit card debt, there could be consumer protections under federal law that can help.

Utah Statute of Limitations

All states have developed laws to regulate the time periods within which a person can bring a civil action against another person or entity. These laws are called the “statutes of limitations.” If you sue after this time limit has run, your claim is barred and the defendant will automatically win. Read on to learn more about Utah’s civil statute of limitations laws. The time period to sue doesn’t start to run until the person knew or should have known they suffered harm and the nature of that harm. For example, a woman takes a fertility medication to have a child. Fifteen years later, she discovers her child has a reproductive system problem that didn’t show up until puberty and it’s discovered that all of the women who took this fertility medication have children with the same defect. She wasn’t warned of this possible problem until the child was older. The child’s time limit to sue for damages didn’t start when her mom first took the medicine, but when she discovered or reasonably should have discovered the related harm to her. However, if the drug company had a national campaign exposing the problem and contacted all former users to inform them of the problem, and the child, now an adult, still waited 15 more years to sue, it would probably be too late. This is called the “discovery of harm rule” and generally doesn’t apply to the most common personal injury claims, like car accidents and slip and falls.

Tolling of the Statute of Limitations

The time period to sue can be extended for various reasons, based on the legal concept of “tolling.” Generally, being under the age of majority, 18 years old in Utah, or having a mental disability causes the clock to stop. If someone suffered from severe mental illness for many years and was harmed during this time, it would be unfair to expect him or her to have the mental capacity to sue. Medical Malpractice Two years after discovering or reasonably should have discovered the injury caused by health care provider, but not more than four years from the date of act, omission, neglect, or occurrence.

Business Lawyer Free Consultation

When you need legal help with a business matter in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We can help with Business Formations. Business Lawsuits. Business Restructuring. Franchises in Utah. Business Dissolutation. Business Administration. Bylaws. Private Placement Memorandums. Operating Agreements. Shareholder Derivative Actions. And Much More. We want to help you.

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

Ascent Law LLC

4.9 stars – based on 67 reviews

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Probate Assistance

The word “probate” sometimes brings to mind thoughts of contested wills, family fights, lengthy legal arguments, and expensive attorney fees. The reality is that many probate actions can be handled quickly and without excessive costs. In general, probate is the legal process for making sure that the property of a deceased person is collected and preserved, the decedent’s debts and taxes are paid, and the remaining property is distributed to the beneficiaries designated in the decedent’s last will .
Probate can be a complicated and stressful process that requires multiple court appointments, filling out detailed forms, and an understanding of legal regulations.

In truth, the entire process can be a legal nightmare for the layperson, and the last thing you may want after the death of a loved one is to deal with the matters of settling their property. It requires submitting documents, filing notices, and informing various government agencies of scheduled hearings. There may also be moments where a probate judge or a court representative will ask to review documents, which will leave you scurrying to and from the courts without much notice or time. Hiring a probate attorney, however, will help you skip the courtrooms entirely, as an attorney can handle all those affairs on your behalf.

A probate attorney will also help you take possession of the deceased person’s property and provide expert advice regarding estate management. Assets such as bank accounts, securities accounts, deeds to real estate properties, jewelry and other assets will need to be inventoried and appraised during the probate process. Once those items are taken care of, a final distribution of the estate is typically made soon after an estate tax return has been filed generally around eight months after the date of death. If a lawyer is not used during probate, the entire process is extremely complicated, and any minor omissions or missed deadlines will only slow down or even stop probate in its tracks.

Hiring a probate attorney will only provide you with the peace of mind that your family’s affairs are being handled in the proper and most efficient manner possible.

The executor of the will is responsible for starting the probate process, retaining an attorney, and taking caring of all financial obligations the deceased person left behind. An executor is typically named in the will, but if not will is available; the probate court will name a close relative to handle the process. A representative, either the executor named in the will or an individual named by the probate court, will be appointed to disperse real and personal property. This individual also collects debts owed to the deceased.

The will is validated by the probate court. If there is no will, then the probate court designates a legal heir usually a close relative to serve as the administrator. A list of assets from the estate is presented to the probate court. Beneficiaries named in the will, or heirs-at-law if there is no will, are notified that the probate process is taking place. Creditors are notified of the proceedings so they can file claims for any debts owed to them. Title to decedent’s property, such as real estate, bonds and stocks, are cleared so that the property can be passed onto beneficiaries or sold. Any jointly held properties or assets with the right of survivorship which means ownership is transferred over once someone passes away. However, the property will eventually pass through probate once the surviving owner passes away.

Duration Of Probate

Probate is a complicated issue with many moving parts involved and it can last anywhere from eight months to several years. It can take much longer if the estate is challenged by family members at odds with the decision. Typically, probate will take about eight months to a year, but the exact factors for determining a timeline will depend on each person’s unique situation. The probate court will not enter an order of distribution allowing assets and property to be transferred to waiting beneficiaries until all the correct paperwork has been approved, and all debts have been paid including court fees, estate taxes, debts and until all stocks and bonds have been cleared. The actual time required depends on various factors, including:

• The extent, value, and type of property owned by the decedent

• How quickly the personal representative acts

• Whether the probate is formal or informal

• Whether the decedent’s heirs dispute the personal representative’s decisions

Initially, the necessary probate opening documents are prepared usually by a probate lawyer retained by the decedent’s survivors and are filed with the probate court. The court appoints the personal representative, who ordinarily administers the estate without court supervision. If the decedent had a last will, the court determines if the will is valid. When the estate has been fully administered, the necessary probate closing documents are filed with the probate court, a final distribution is made to the heirs or beneficiaries, and the court discharges the personal representative from further responsibility.

Property That Can Be Transferred Without A Probate

Any of the decedent’s untitled property, such as personal and household possessions, valuables, or money, can be transferred without a probate. Doing so, however, may subject such property to the claims of the decedent’s creditors. In addition, several types of property pass outside of probate because they have a built in transfer mechanism that does not involve probate. Such property includes:

• Jointly owned assets, such as a joint bank account or a home or other real estate owned as joint tenants with rights of survivorship

• POD (Pay on Death) bank accounts or TOD (Transfer on Death) stock brokerage accounts

• Insurance proceeds, including life insurance and accidental death benefits

• Death benefits of annuities, pension plans, and retirement accounts

• Property held by a trustee of a living trust

Even if the decedent did not own titled property that requires a probate to be transferred, you should still consider a probate if:

• The decedent left unpaid debts, and you want to cut off potential claims of the decedent’s creditors.

• There is a dispute over who is entitled to the decedent’s property.

• The decedent had a last will, which you want to be able to enforce in court. A will that is not probated is not legally enforceable.

• The decedent’s estate needs to make an income tax or estate tax election. (Usually, only a personal representative can make this election.)

• The person dealing with the decedent’s property wants to be discharged from liability to the heirs and beneficiaries after the property is distributed.

Probate Assistance Options

 Small Estate Affidavit: You may be able to avoid filing a probate by signing a small estate affidavit, which can be used to collect a decedent’s property, except real estate, if the net value of the decedent’s property subject to probate does not exceed $100,000. A small estate affidavit is not legally available, however, until 30 days after the decedent’s death.

 Filing Options: If filing a probate cannot be avoided, the most common filing options are Informal probate, which is generally appropriate for simple, uncontested estates and usually costs less than a formal probate because no attorney travel or in-court time is required. In some circumstances, the decedent’s relatives may be required to sign written consents to this process. While Formal probate, which is appropriate for estates in which the right of the person seeking appointment as personal representative is contested or in which some other dispute may arise. Formal probate requires an in-court hearing, which the attorney but not the client is required to attend.

 Order Determining Heirs: This is appropriate when the decedent’s Utah real estate or other property located in Utah needs to be sold and more than three years have passed since the decedent’s death.

 Ancillary Probate For Out-Of-State Decedents: This option can be used when the decedent resided outside Utah at the time of death, a probate has been filed there, and the decedent owned Utah real estate or other property that needs to be sold.

Steps In A Probate

• Opening: A probate is commenced or opened by filing documents with the probate court necessary to have a personal representative appointed and, if the decedent had a will, to have the will validated. If the opening is formal, a court hearing is required; if it is informal, no court hearing is required.

• Notice to creditors and estate administration: After the probate is opened, the personal representative publishes a notice in the newspaper that creditors must present their claims within three months or be barred. The personal representative does whatever else is necessary to administer the estate, including protecting and managing the estate property.

• Closing: When the notice to creditors’ period has run, creditors’ claims have been paid, and the estate has been fully administered, the personal representative can close the estate by filing the necessary documents with the probate court and by distributing the estate property to the appropriate heirs or beneficiaries. Like the opening, the closing can be formal or informal; again, a formal closing requires a court hearing, and an informal closing does not.

Filing Requirements For Probate

 General Requirements: In Utah, a probate is filed or opened by presenting the necessary opening documents and paying a filing fee to the appropriate district court

 Required Documents: The opening documents include an Application (if the opening is informal) or a Petition (if the opening is formal) requesting that the probate court appoint a personal representative and, if the decedent had a last will, that the court validate the will (which is attached to the Application or Petition).

Other required documents include a Renunciation by any person with an equal right to serve as personal representative; a Statement (if the probate is informal) or an Order (if the probate is formal) by the court appointing the personal representative and validating the will; an Acceptance of the appointment by the personal representative; and Letters issued by the court stating that the personal representative has been duly appointed. An optional document that can speed up the opening is a Waiver of Notice by the decedent’s surviving family members and will beneficiaries. If the decedent had a last will, the court appoints the person chosen by the decedent in the will. If all persons chosen in the will fail to accept an appointment as personal representative, or if the decedent died without a valid will, then the court appoints one of the following persons, in descending priority:

• the decedent’s spouse, provided he or she is a beneficiary under the decedent’s will,

• another will beneficiary,

• the decedent’s surviving spouse, whether or not a beneficiary,

• other heirs,

• Creditors of the decedent’s estate.

Duties Of A Personal Representative

A personal representative is obligated to act in the best interests of the heirs and beneficiaries and to quickly and efficiently administer the decedent’s estate. The personal representative has many duties which, in general, include the following:

I. Take possession of, manage, and preserve the decedent’s property

II. Search for the decedent’s last will

III. Notify the surviving family members of the probate

IV. Prepare an Inventory of the decedent’s property and its value

V. Notify the decedent’s creditors of their right to file claims for payment

VI. Pay valid creditors’ claims and applicable taxes

VII. Sell estate assets, if necessary, for cash to pay debts and taxes

VIII. Distribute the decedent’s remaining property to the designated beneficiaries or lawful heirs

There are numerous reasons that wills may be challenged, although most wills go through probate without a problem. Additionally, a probate attorney may be responsible for performing any of the following tasks when advising an executor:

• Collecting and managing life insurance proceeds;

• Getting the decedent’s property appraised;

• Finding and securing all of the decedent’s assets;

• Advising on how to pay the decedent’s bills and settle debts;

• Preparing/filing documents as required by probate court;

• Managing the estate’s checkbook; and

• Determining whether any estate taxes are owed.

A party may challenge any aspect of the probate administration, such as a direct challenge to the validity of the will, known as a will contest, a challenge to the status of the person serving as personal representative, a challenge as to the identity of the heirs, and a challenge to whether the personal representative is properly administering the estate. The personal representative must understand and abide by the fiduciary duties and to treat all beneficiaries equally. Not complying with the fiduciary duties may allow interested persons to petition for the removal of the personal representative and hold the personal representative liable for any harm to the estate.

Probate Assistance in Utah Free Consultation

When you need legal help with a probate, please call Ascent Law LLC for your free estate law consultation (801) 676-5506. We can help you with probate administration, probate litigation, Estate Planning, asset protection, lawsuits for estates, and more. We want to help you.

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

Ascent Law LLC

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Family Lawyer Draper Utah

Family Lawyer Draper Utah

In any family law dispute, the probability of winning increases with the skillful presentation of evidence. Don’t fight a family law dispute in court without an experienced Draper Utah family lawyer. Evidence is information presented to a court to support or refute a case or a position in a lawsuit. Evidence may include oral testimony as well as tangible material such as documents, exhibits, and demonstrative aids. Evidence is critical to the outcome of a case, since courts decide verdicts based upon the evidence. However, not all evidence in a case is heard by the court; only evidence that is relevant and admissible plays a role in the outcome of a case.

Expert Witness

An experienced Draper Utah family lawyer will review the facts of your case and determine if you need to use an expert witness. Basically, an expert witness provides an unusual input into a trial. The general rule in a civil trial is that a witness may testify only as to what he or she has seen or heard.

In trial practice, this is an individual who assists trial counsel to prepare an expert witness for trial. In general, since they work with trial counsel preparing the case for trial, what they produce for a client is not subject to discovery. In the federal court system, discovery, the pre-trial process whereby the parties exchange information, specifically applies to expert witnesses. They generally do not apply to those working with the trial counsel, usually including a consulting expert.

While, in some cases, the emotions of the witness may be a subject for testimony, the average witness is not permitted to offer an opinion or to discuss an event which he or she did not actually see. The formation of an opinion, based on the facts in evidence, is traditionally the responsibility of the jury, or of the judge when there is no jury. The use of an expert witness is an exception to this rule. The reasoning for this exception is that some situations are so complex that an expert must be brought in to explain the significance of what is in evidence to a jury However, since the American common-law based system still places ultimate responsibility for the finding of facts with a jury, the expert comes in as another type of witness. That means the jury must evaluate the expert’s testimony, particularly his or her conclusions, as it would that of any other witness. The jury is not required to accept what the expert says as its own conclusion. Therefore, the jury must also be told the facts on which the expert’s opinion is based, as well as the special qualifications that the expert has to be able to draw the conclusion advanced.

How is Someone Qualified as an Expert Witness?

An expert witness is typically presented to the court by one of the parties. The party presenting the expert must satisfy the judge as to the following issues:

• that there is some specialized area of knowledge that will help the jury understand the case before it

• that this area has a reasonable foundation as the subject of activities such as formal research, academic courses, professional education or licensing, trade or professional groups

• that this area has a reasonable foundation as the subject of activities such as formal research, academic courses, professional education or licensing, trade or professional groups

The way this is usually done is by having the witness being offered as an expert directly testify as to these points. Then, the witness can be considered as qualified. At that point, the expert is permitted to testify on the matter before the court. This is done by having the attorney present the expert with specific facts.

The expert can offer his or her opinion as to the meaning of the offered facts. But it is still for the jury (or judge sitting in place of a jury) to determine whether or not to accept the testimony and opinion offered. The process does not end there. The opposing trial counsel has the right to do several things. They include:

• challenging that the area of testimony is a legitimate area for expert testimony

• arguing that the expert presented is not really qualified to draw a conclusion

• asking the expert questions based on different assumptions, to elicit different conclusions

• offering up opposing expert witnesses

An expert witness, at the time of a trial, is actually qualified by the court and must be requalified each and every time that person comes to a subsequent trial for the offering of expert opinion. This qualification by each trial judge takes place regardless of how many previous times the same individual has been court-qualified before or in other jurisdictions. Other witnesses, or experts who may be called as percipient witnesses, can testify without being qualified by the court, but only as to their personal knowledge or observed information related to the matter at hand.
The trier of fact (i.e., the judge alone, or the judge and jury) hears preliminary testimony from the proposed expert, elicited by the attorney presenting the case, as to the expert’s knowledge, experience, and training that demonstrate he knows more about his subject or field than does the average layperson. The qualifications of the expert can be challenged by opposing counsel, who will also be allowed to cross-examine the expert on any area of her background, training, education, or experience. The judge then will rule on that witness’s acceptability as an expert in this specific case. This challenge to a witness’s expertise can be in front of the jury or elsewhere.

This is a critical issue to be understood by science-oriented professionals, as most medical, scientific, or engineering professionals would generally be embarrassed or dismayed at calling themselves “experts.” A necessary realization, required by working expert witnesses, is that they do know more about their particular field than just about any other person who may be on a lay jury.

Witness Preparation

Witness preparation is critical in all legal cases. This doesn’t mean the testimony is changed or biased in any way, only that the person giving the testimony is a bit more familiar with what the conditions of the legal playing field will be prior to being asked to score a touchdown. Your Draper Utah family lawyer will prepare your expert witness for testimony.
It is not uncommon for some attorneys to take advantage of that intimidation factor when questioning witnesses of their own or when cross-examining those on the other side. Advantage is gained if the attorney can get an opposing witness to say things that are not representative of what he believes to be correct, or things that cause the witness to lose credibility when speaking. The skilled trial lawyer will try to take advantage of any aspect of a witness’s demeanor or lack of conviction when testifying. This is why the more experienced witnesses seem to have an easier time dealing with the rigors of cross-examination.

Just as the nature of an expert witness’s testimony varies, so does the role of the expert witness. In some cases, the expert witness is used to identify problems or defects in the testimony of fact witnesses. In other cases, expert testimony is necessary to meet the burden of proof in order to establish a claim or defense. At times, expert witnesses are used primarily to match the opponent’s experts and to add persuasive strength to the proponent’s claim or defense.

Although experts are most commonly identified with their role as testifying witnesses in deposition or at trials, they also can assist attorneys in the development of the case before trial. Lawyers may hire experts to evaluate the credentials and work of other experts. Experts also may assist lawyers in understanding the technical aspects of a case by reviewing records and documents produced by the parties and by identifying and evaluating issues in a case. In addition, experts can help formulate requests for documents and other information which may become admissible evidence, or they can prepare questions for direct and cross-examination of witnesses. Expert advice may be critical in avoiding a case being dismissed by the court before trial by establishing persuasive theories of causation which should be heard and evaluated by the jury.

Another important function of expert witnesses may be to conduct tests or experiments related to an element involved in the litigation and to prepare demonstrative evidence illustrating their conclusions and the basis for them. To do so, tests and experiments must be painstakingly and extensively planned, documented, and recorded. Experts must be able to defend each step of the testing and experimental process to explain how laboratory conditions relate to the actual facts and circumstances of the case.

Types of Experts

There are two types of experts: consulting and testifying. The distinction between the two is critical because it has an impact on the disclosure of information, thoughts, and processes. Consulting experts provide background knowledge and lend their expertise outside of the courtroom. A consulting expert is used as a resource in complicated and technical areas in which lawyers have little background, often instructing and guiding lawyers on unfamiliar subject matter. A consulting expert will not be called as a witness. Testifying experts, on the other hand, go beyond the support provided by consulting experts and ultimately assist the lawyers trying a case by providing testimony either in court or in depositions.

The distinction between a testifying expert and a consulting expert is important because the identity and opinions of testifying experts must be revealed to the opposing party in advance of trial if properly requested. This means the opposing side will have access to the experts and their records and, therefore, be better able to prepare a response Because of the distinct differences in rules between the two types of experts, the work of consulting experts and that of testifying experts should be kept separate. Successful lawyers strategically balance the use of testifying and consulting experts in order to protect their cases.

The Relationship between Lawyers and Experts

Draper Utah family lawyers expect experts to be confident, persuasive, and impartial, yet not boastful or contentious. They want experts who are firm, with strength of conviction. They need experts who will explain technical, complex matters in a way that the jury fully understands and to which jurors can relate. Lawyers also want experts with appropriate credentials to support narrowly tailored opinions that will serve the lawyers’ objectives at trial. While communication and teaching skills may be more important than credentials for a testifying expert, outstanding expertise and analytical ability may be more important than the ability to communicate and teach for a nontestifying, or consulting, expert. Thus, the lawyer’s expectations will change depending on how the expert will be used.
In turn, experts expect lawyers to provide a complete and thorough explanation of the case, the key issues and challenges, and the fundamental standards of proof from a legal perspective. They expect to be provided with all relevant information and documentation to which the lawyer is privy as soon as physically possible.

Lawyers should respect the ethics and professional integrity of the expert and not demand that opinions be slanted in order to bolster the case. Experts need lawyers to clearly describe and explain the interrelationships between their testimonies and those of other experts involved in the case so the experts can prepare to explain conflicts of opinion.

Experts also expect attorneys to educate them about the nature of the legal proceedings and vocabulary, as well as what is expected of the expert at each juncture. In a positive working relationship with an experienced Draper Utah family lawyer, an expert will be treated as a peer over the course of the case and will be actively involved in developing case strategy, based on the objective, impartial, and independent findings of the expert.

If you believe your family law litigation requires the services of an expert witness, speak to your family lawyer who is the best person to take a call.

Draper Utah Family Attorney Free Consultation

When you need legal help from a family lawyer in Draper Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you. We can help you with Divorce. Child Custody. Child Support. Adoptions. Prenups. Postnups. And Much More.

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

Ascent Law LLC

4.9 stars – based on 67 reviews

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