Michelle Wagner: February 2020

Saturday, 29 February 2020

Trust Protector and Dynasty Trusts

A trust protector is an independent third party or institution given the authority to perform certain duties with regard to a trust. A trust protector’s role is to ensure that the wishes of the trust maker, the individual who made the trust are fulfilled and that the trust continues to serve the purpose for which it was intended. The trust agreement typically details his responsibilities and his areas of authority.

Serve as a Trust Protector

As an independent third party, the trust protector cannot be related to the trust maker or to any of the trustees or trust beneficiaries. Sometimes the trust agreement, the trust’s formation documents will specifically name a trust protector, but it might instead just lay out the process by which a trust protector can be appointed instead. If the trust maker is married, his spouse may be granted the power to appoint someone. Otherwise, the trust beneficiaries can nominate someone and the court can appoint that individual. If the trust agreement names a specific individual, the document should also specify how he should be replaced if the initial individual is unable or unwilling to serve when called to action.
A trust protector is most commonly associated with irrevocable living trusts.

For all practical purposes, the terms of these trusts are set in stone. The trust maker of an irrevocable trust cannot later undo it or take back property he placed into it. In the case of an emergency, such as if something happens so the trust can no longer serve the purpose for which it was intended, or if changes in the economy cause it to lose money at an alarming rate as it’s presently set up only a trust protector can step in and take action to make things right. The trust maker has relinquished all control, so he’s personally powerless to remedy the situation. The trust protector may be granted limited or an expansive list of powers. At a minimum, he should be able to remove and replace the existing trustees. He may be given the power to settle disputes among co-trustees, or between trustees and beneficiaries. He may be permitted to alter trust provisions due to unanticipated circumstances, such as changes in the economy or with tax laws. This power is critical for Dynasty trusts that can continue for many years into the future after being set up. He may be able to terminate the trust entirely, to modify the powers of the trustee, to change the sites or legal jurisdiction of the trust, or to correct ambiguities or errors made when the trust was drafted. Under the laws of some states, the trust protector will be able to exercise these powers without the need for court approval. This can minimize the costs incurred in administering the trust. The role of trust protector is a function that carries out enumerated administrative and strategic purposes generally not reserved to the trustee, settler, or beneficiaries. There is no mandate that the trust protector actually protect the trust. The name itself could be anything and has no inherent meaning. To help interpret the intricacies of the trust protector’s role, commentators look to the variety of statutory and case law that exists in the United States regarding trust advisors, although there seems to be some question about how similar the roles of trust protectors and trust advisors are. Also, there is international common law jurisprudence that can be used for reference purposes. In structuring a trust, generally the attorney delineates the relative rights and powers of the parties. For instance, the trust generally addresses matters such as whether the settler (and beneficiaries, after the settler’s death or incapacity) will have the right to remove or replace a trustee. Further, the powers of the trustee regarding many matters, including investment and distribution, are also generally addressed. Beyond these basics, sometimes more profound issues are not easily addressed by the traditional roles. For example, questions can arise over whether to change the legal sites, governing provisions, or beneficiaries of the trust. These are the instances in which the role of the trust protector is most helpful.

Paying the Trust Protector

A trust protector is entitled to compensation for the services he renders on behalf of the trustees and beneficiaries. The trust agreement should set forth the method for determining how much he is paid.

A Dynasty Trust is a long-term trust created for the purposes of passing and building wealth from generation to generation without incurring federal estate tax. For families with significant wealth, this trust provides substantial tax savings for future generations for up to 360 years in Tennessee. The Dynasty Trust is created in your will/revocable trust and only becomes funded at your death. The idea behind the trust is that your children do not receive their inheritance outright. Instead, your assets pass through the Dynasty Trust and stay in trust for their lifetime. Most often, clients want their children to be trustees of their own trust and that is certainly possible. But the trust must have certain boundaries/standards by which money may be used. The broadest limits we usually put in the trust are the assets may be used for the child’s health, education, maintenance, and support. That restrictive language is critical to ensure that the assets in the trust are not included in the child’s estate. A trust with no standard by which the trustee must distribute assets would likely cause the trust to be included in their estate. This circumstance would make the trust asset subject to the estate tax and thereby defeat the entire purpose of the Dynasty Trust. Be aware that if you use a broad standard for distribution of the assets, it would ensure that the child may use significant portions of the assets for their needs. For example, if your child wanted to purchase a home she could do so with trust assets. If she needs groceries, or to pay for medical expenses, the money would be there to support her. Also, included in the Dynasty Trust is a limited power of appointment. This limited power of appointment allows the trustee to appoint trust property by will to whomever they like. So, if someone wanted to leave her trust assets to her spouse or children she can choose to do so in her will. But note, the Dynasty Trust has a provision which directs the trust assets to pass to your lineal decedents should your children fail to exercise this power of appointment. Even if your children do not exercise their limited power of appointment, the trust assets will be provided to the new beneficiaries in a new Dynasty Trust that will be governed by terms and standard of the original Dynasty Trust. As such, each successive generation of beneficiaries will have a power to appoint where these assets go in their will, just as if they owed the assets personally. But these successive beneficiaries will never own the assets personally. Rather, the trustees will control the assets in trust and keep them free from estate taxation for generations to come. Under the terms of the Dynasty Trust, your daughters would have the ability to appoint new trustees at their death. For example, your children could easily name your grandchildren as trustees of their trust once they are of age. On the other hand, if a grandchild has substance abuse problems, your child may decide to name a third party as trustee for that grandchild for his or her life.
An understated benefit of a Dynasty Trust is assets placed into the trust are protected from the claims of creditors. This means that in the event any of your descendants incur any debts on their own, their creditors will never be able to seek relief from the assets in this trust. Additionally, the Dynasty Trust is a good estate planning vehicle for ensuring that the wealth your family has stays within your family bloodline. By placing your assets into a Dynasty Trust, you can ensure that the wealth will be protected from any future ex-spouses in the event of divorces. While there are many benefits to including a Dynasty Trust within your estate plan, there are two significant drawbacks to using a dynasty trust. The trust, like most irrevocable trusts, will be subject to an income tax that has a higher tax rate than that of an individual tax payer if the income of the trust is not distributed directly to the beneficiary. Currently, the highest income tax rate on a trust is 40%. This rate is higher that any personal tax rate. But if the income of the trust is distributed to the beneficiary, the beneficiary pays the tax at his or her personal tax rate. (Note this is income tax and not the estate tax. If the trust is properly planned the principal of the trust will not be taxed, only the income derived from the assets in trust). Accordingly, if your children want to live off of the income of their trusts they can do so. The income from the trust would only be taxed at their personal tax rate, not at the rate of 40%. It is only taxed at a maximum rate of 40% if the funds are reinvested in the trust.

Second, it is likely that assets that were purchased many years ago have increased in value over time. If the assets are owned by individuals they will receive a step-up in tax basis at the death of the owner. What that means is if the owner dies his family inherits the property based upon the value at his death, not what he paid for it. This step-up in basis amounts to significant tax savings for families. However, that is not the case with Dynasty Trusts. These trusts do not provide families with a step-up in basis at the death of each successive generation. So, as a consequence, a Dynasty Trust may not be appropriate for families that plan to sell assets down the road.

Make Trusts More Flexible

Trusts that continue for the benefit of a surviving spouse’s lifetime and then for the benefit of several generations have become

the norm. Drafting trust agreements that will cover the administration, investment, and distribution of trust property over the span of multiple decades is challenging. In this issue you will learn how trust agreements can be made flexible to address changes in the lives of beneficiaries and governing laws by:
• Carefully selecting trustees.
• Defining trust beneficiaries.
• Including powers of appointment.
• Allowing for trust decanting.
• Providing for the appointment of a trust protector.
Choosing the right succession of trustees for an irrevocable trust that is intended to continue for years into the future is critical to the trust’s success and longevity. Typically the client’s initial thought is to name one or more family members as Trustee(s) who can then appoint additional family members because they will better understand the varying needs of the beneficiaries and will keep the costs of administering the trust down. But in reality family members will not be able to fulfill all of their fiduciary obligations without hiring legal, investment, and tax advisors. These expenses will add up and can ultimately cost more than a corporate trustee, such as a bank or trust company, which will be able to meet all fiduciary obligations under one roof for one fee. On the other hand, forcing trust beneficiaries to be stuck with the wrong trustee without a reasonable means for removing and replacing the trustees will land the beneficiaries and trustee in court. It is crucial to build provisions into the trust agreement which allow beneficiaries or a trust protector to remove and replace trustees without court intervention. A corporate trustee will act as a neutral party to oversee discretionary distributions and investment strategies that benefit both current and remainder beneficiaries. To create flexibility, specific beneficiaries (such as current income beneficiaries) or a trust protector should be given the right to remove the corporate trustee and replace it with another corporate trustee.

Clients need to consider who they want to include as trust beneficiaries twenty, thirty, or even fifty years into the future. While clients cannot predict or foresee everything that will happen in the future, they should still take time to consider who they want to take care of after they are gone. Clearly defining the class of beneficiaries who will benefit from the trust will allow for a smooth transition between generations and potentially head off litigation. Clients who are concerned about how children, grandchildren, or great grandchildren will eventually grow up can build flexibility into a dynasty trust by giving a surviving spouse or other beneficiary the ability to include or exclude heirs through a power of appointment. A power of appointment is also important when a trust is designed as a generation skipping trust but one or more beneficiaries do not have children, and it can also be used to include or exclude charitable beneficiaries. Powers of appointment at each generation should be considered when designing a trust that is intended to last for decades into the future. The powers can be as limited or as broad as the client desires without creating any gift tax or estate tax problems.

Trust Decanting involves taking the funds

from an existing trust and distributing them to a new trust that has different and more favorable terms. Decanting may be authorized under state common law or statutory law and should be included as an option in the trust agreement.
Reasons for Decanting a trust may include the following:
• Tweaking the trustee succession provisions.
• Converting a trust that terminates when a beneficiary reaches a certain age into a Dynasty trust.
• Changing a support trust into a full discretionary trust so that a beneficiary’s creditors cannot seize assets from the trust.
• Clarifying ambiguities or drafting errors in the existing trust.
• Changing the governing law or trust sites to a less taxing state.
• Modifying powers of appointment.
• Merging similar trusts into a single trust or creating separate trusts from a single trust.
• Adjusting the trust terms to provide for a special needs beneficiary. Clients may be concerned that including decanting provisions into a Dynasty Trust will defeat their long-term goals and intent. However, including the authority to decant a trust provides flexibility into the trust agreement from the beginning, reducing the risk that a client’s beneficiaries will end up in court to fix a trust that no longer makes practical or economic sense.
A trust protector is an individual or entity that is empowered to make trust changes so that the grantor’s wishes can be ultimately fulfilled. A trust protector’s duties can be as limited or all-encompassing as the grantor chooses. In essence a trust protector can be given the power to modify the terms of a trust without necessarily having to decant it and to address unforeseeable events such as changes in tax laws or family dynamics. Of any of the options clients can include in their trust agreements to insure flexibility; a trust protector is in and of itself the most flexible. This is because a trust protector can be given the right to appoint, remove and replace trustees; include or exclude beneficiaries; adjust powers of appointment; and decant the trust into a new one. Therefore, trust protector provisions should be included in all trust agreements. Unfortunately trust agreements that are more than a few years old will most likely lack provisions for allowing the trust terms to be adjusted as the needs of the beneficiaries and governing laws change. The good news is that modern trust law contemplates these changes and can be invoked to fix an old trust that has gone sideways.

Trust Protector Lawyer Free Consultation

When you need legal help with a trust protector or dynasty trust, please call Ascent Law LLC for your free estate law 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

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What Is A Class B Misdemeanor In Utah?

Misdemeanors in Utah are punishable by up to 364 days in county or local jail, and are designated as class A, B, or C. Some misdemeanors are unclassified and punished as infractions. Felonies (more serious crimes) are punishable by incarceration in state prison. Under Utah’s laws, class B misdemeanors are punishable by up to six months in jail and a fine of up to $1,000.

For example, an adult who knowingly furnishes alcohol to a minor can be convicted of a class B misdemeanor in Utah. If a statute designates an offense as a misdemeanor but fails to classify or specify a punishment for it, the crime is punishable as an infraction. Potential punishments include:

• a fine of up to $1,000
• compensatory service (unpaid work for a government agency, nonprofit, or other court-approved organization)
• forfeiture (government seizure of property from the convicted person)
• disqualification from public or private office, or
• any combination of those punishments.
The Legislature sets the minimum and maximum for all types of classifications, which are divided into 3 classifications: Class A, Class B, and Class C. There is also a category under a Class C misdemeanor, which is called an infraction. 0 to 180 days in jail for incarceration with maximum fine of $1,000, plus 90 percent surcharge.

Common Utah Misdemeanors with Devastating Collateral Effects:
• DUI: Utah DUI, drugged or Impaired driving cases are complicated.
• Domestic Violence: Often, domestic violence cases have numerous defenses and the stakes are high. If you are charged with a crime of domestic violence, you should consult a trial lawyer who is capable of trying the case in front of a jury.
• Damage to or Interruption of a Communication Device
• Assault Charges: When you are facing Assault charges or aggravated assault charges and you did not start the fight, but were merely protecting yourself, you will need an aggressive Utah criminal defense attorney who will dig deep in preparation on your case.
• Drug Charges: You will need a good trial lawyer when you are falsely accused of possession of drug paraphernalia when they either were not yours or were simple, innocent items that the police mistook at drug paraphernalia.
• Possession of Illegal Drugs: Possession and Distribution charges should be taken very seriously as even first time offenders can be sentenced to prison for many years. An experienced criminal defense trial lawyer can help you alleviate or win against the great weight of the government.

Small Possession of Marijuana Being charged with even small amounts of marijuana is still illegal in Utah. A petty marijuana conviction in Utah carries mandatory driver’s license suspensions, fines, court probation and possible a substance abuse evaluation.

According to the Utah State Courts, a Class B misdemeanor includes charges of assault, resisting arrest, DUI, reckless driving, possession of marijuana under 1 ounce, drug paraphernalia, shoplifting (under $300), trespass of a dwelling and public nuisance. Concealed weapon violations and numerous traffic offenses are also Class B misdemeanors. A Class B offense is punishable by up to six months in jail, and up to a $1,000 fine. If a person is convicted, a judge determines sentencing by consulting the Utah Sentence and Release Guidelines. Other factors can affect sentencing, including the severity of the crime, which may increase or decrease the usual recommended sentencing. In Utah, a person commits domestic violence by committing (or attempting to commit) any crime involving violence, physical harm, or the threat of violence or physical harm against a cohabitant. Cohabitants include spouses; former spouses; people in relationships that resemble marriage; people who live together or have lived together; people who are related by blood or marriage; and people who have children together. Cohabitants must be over the age of 16 or emancipated minors. Siblings under the age of 18 and parents and their children are not cohabitants of one another. Any violent crime, such as harassment, stalking, violating a restraining order, or assault, is domestic violence if committed by one cohabitant against another. People who are convicted of crimes of domestic violence in Utah more than once are subject to increased punishment for subsequent offenses.

Arrests for Domestic Violence

Under Utah’s laws, if a police officer has probable cause to believe (a reasonable belief) that domestic violence has occurred; the officer must make an arrest without a warrant or issue a citation (ticket). This is an exception to the usual rule that an officer can make a warrantless arrest only under certain conditions when a misdemeanor has been committed in his presence, or he has reason to believe a felony has occurred and the arrest is outside the home. If the officer has probable cause to believe the victim will continue to be in danger or that the defendant has recently caused serious injury or used a dangerous weapon, the officer must make an arrest and take the defendant into custody. People who are arrested for domestic violence may not personally contact the victim before being released and may not be released from jail before the next court day unless they are ordered as a condition of their release not to:

• personally contact the victim
• harass the victim, or
• go to the victim’s residence.
Contacting the victim before being released or in violation of a court’s order is a crime. People who are arrested for domestic violence may also be subject to electronic monitoring.

Protective Orders

A protective order (also called a restraining order) is a court order requiring one person (the respondent or defendant) to not contact and stay away from another person (the petitioner or victim).

Pre-trial protective orders

Whenever a defendant is charged with domestic violence, the court may issue a pre-trial protective order:
• prohibiting the defendant from committing or threatening acts of domestic violence
• prohibiting the defendant from contacting or communicating with the victim
• excluding the respondent from petitioner’s residence, school, or workplace, or any other place, and
• granting any other relief necessary for the safety and welfare of petitioner or another person.
The order remains in effect until the defendant’s trial. It is a crime to violate a pre-trial protective order.

Ex parte orders

Even if no charges are pending, any cohabitant who has been the victim of or is in danger of domestic violence or abuse (physical harm) may also file a petition for a protective order in Utah. An “ex parte” order is one made without notice to the defendant and without the defendant first appearing in court. Under Utah’s laws, if a court finds that there is a danger of domestic violence or abuse, it may issue an ex parte order:

• prohibiting the respondent from committing domestic violence or abuse
• prohibiting the respondent from contacting the petitioner
• excluding the respondent from petitioner’s residence, school, or workplace, or any other place
• prohibiting the respondent from possessing a weapon
• permitting the petitioner to use a vehicle or other personal property
• granting the petitioner temporary custody of any children
• appointing a guardian
• granting any other relief necessary for the safety and welfare of petitioner or another person.

An ex parte order may be in effect for up to 20 days before a hearing is held. If the court finds that there is a good reason to delay the hearing, the order may be in effect for up to 180 days.

After The Court Hearing

To obtain a court order that is in effect for a longer period of time, the petitioner must have the respondent served (given a copy). Then, there is a hearing, where both the petitioner and the respondent may appear. Following a hearing, the court may also issue an order granting custody and visitation of any children, as well as any relief that can be granted as part of an ex parte order. Generally, the criminal provisions (see below) of a protective order are in effect for two years. After that time, a hearing can be held to dismiss the order.

Criminal and civil provisions

Under Utah’s laws, a person who violates almost any provision of a protective order issued ex parte or after a hearing commits a crime. The only exceptions are those provisions related to custody or other relief necessary for the safety and welfare of the petitioner or another person. A person who violates these provisions can be punished only with civil contempt. Contempt (violating a court’s order) is punishable by a fine and time in jail.

Contacting a victim before being released on a domestic violence arrest is a class B misdemeanor, punishable by up to six months in jail and a fine of up to $1,000. If the defendant was originally arrested for a felony, violating a judge’s order to not contact a victim or a pre-trial protective order is a third degree felony, punishable by a prison term of up to five years and a fine of up to $5,000. If the defendant was originally arrested for a misdemeanor, violating a judge’s order or a pre-trial protective order is a class A misdemeanor, punishable by up to one year in jail and a fine of up to $2,500.
Violating the criminal provisions of a protective order is also class A misdemeanor.

When a person who has been convicted of a domestic violence offense within the past five years is convicted of another domestic violence crime, including violating a restraining order, if the current offense is:
• a class C misdemeanor, then it is punishable as a class B misdemeanor by up to six months in jail and a fine of up to $1,000
• a class B misdemeanor, then it is punishable as a class A misdemeanor by up to one year in jail and a fine of up to $2,500, or
• a class A misdemeanor, then it is punishable as a third degree felony, punishable by a prison term of up to five years and a fine of up to $5,000.

A restraining order or conviction for domestic violence can have serious consequences. If you are charged with domestic violence or served with a restraining order, you should contact a Utah criminal defense attorney immediately. An attorney can tell you what to expect in court and advocate on your behalf so that you can obtain the best possible outcome. Utah is poised to become the second state in the nation to adopt an automatic system that will eventually wipe out the criminal records of people convicted of certain low-level crimes. The legislation does not change the eligibility criteria for expungements. It covers mostly low-level crimes, and does not allow expungements for felonies, DUIs, or violent misdemeanors like domestic violence or sexual battery. A person must be crime-free for five years for a class C misdemeanor, six years for a class B misdemeanor and seven years for drug possession — the only class A misdemeanor that is eligible for expungement. Having a criminal record can affect someone’s ability to get a job and can limit housing opportunities, so people often seek expungements to give them a fresh start after a minor conviction.
Once offenders pay their debt to society, they should be encouraged as they rebuild their lives, not confronted with barriers that make it difficult for them to provide for their families and lead fulfilling lives. This act allows thousands of Utah to look forward to their future rather than backward at past mistakes. Utah is poised to become the second state in the nation to adopt an automatic system that will eventually wipe out the criminal records of people convicted of certain low-level crimes.

Reckless Driving

A person is guilty of reckless driving who operates a vehicle: In willful or wanton disregard for the safety of persons or property. Reckless driving is punishable as a class B misdemeanor. Anyone who wants to join a like fad or challenge is encouraged to think about the physical as well as criminal repercussions that could occur. Parents are encouraged to speak to their teens about dangerous challenges that are currently making the rounds to ensure their teen are using common sense before joining in with the crowd.

While the student charged with sexual abuse obviously crossed the line from innocent hazing to criminal activity, other hazing rituals may also be against the law as well. Utah Code states “A person is guilty of hazing if that person [knowing the activity is for those to be or remain a member of any organization] intentionally, knowingly, or recklessly commits an act or causes another to commit an act that:
• endangers the mental or physical health or safety of another;
• involves any brutality of a physical nature such as whipping, beating, branding, calisthenics, bruising, electric shocking, placing of a harmful substance on the body, or exposure to the elements;
• involves consumption of any food, alcoholic product, drug, or other substance or any other physical activity that endangers the mental or physical health and safety of an individual; or
• Involves any activity that would subject the individual to extreme mental stress, such as sleep deprivation, extended isolation from social contact, or conduct that subjects another to extreme embarrassment, shame or humiliation”.

Depending on the severity of the hazing and what weapons of illicit materials are used, hazing may be punished ranging from a class B misdemeanor to a second degree felony. Any teens facing charges for their involvement of criminal hazing are encouraged to seek the legal counsel of a reputable juvenile defense attorney.

Class B Misdemeanor Lawyer in Utah Free Consultation

If you’ve been charged with a Class B Misdemeanor in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help defend you against these charges.

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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Friday, 28 February 2020

How Do You Stop A Foreclosure From Lawsuit

Foreclosure is a legal process in which a lender attempts to recover the balance of a loan from a borrower who has stopped making payments to the lender by forcing the sale of the asset used as the collateral for the loan.

Formally, a mortgage lender (mortgagee), or other lien holder, obtains a termination of a mortgage borrower (mortgagor)’s equitable right of redemption, either by court order or by operation of law (after following a specific statutory procedure).

Usually a lender obtains a security interest from a borrower who mortgages or pledges an asset like a house to secure the loan. If the borrower defaults and the lender tries to repossess the property, courts of equity can grant the borrower the equitable right of redemption if the borrower repays the debt. While this equitable right exists, it is a cloud on title and the lender cannot be sure that they can repossess the property.
Therefore, through the process of foreclosure, the lender seeks to immediately terminate the equitable right of redemption and take both legal and equitable title to the property in fee simple. Other lien holders can also foreclose the owner’s right of redemption for other debts, such as for overdue taxes, unpaid contractors’ bills or overdue homeowner association dues or assessments.

How Foreclosure Works

When you buy expensive property, such as a home, you might not have enough money to pay the entire purchase price up front. However, you can pay a portion of the price with a down payment, and borrow the rest of the money (to be repaid in future years).

Homes can cost hundreds of thousands of dollars, and most people don’t earn anywhere near that much annually. Why are lenders willing to offer such large loans? As part of the loan agreement, you agree that the property you’re buying will serve as collateral for the loan: if you stop making payments, the lender can take possession of the property in order to recover the funds they lent you.

To secure this right, the lender has a lien on your property, and to improve their chances of getting enough money, they (usually) only lend if you’ve got a good loan to value ratio.

File a Lawsuit to Stop Your Foreclosure

Despite the banks best efforts, you’ve fought off foreclosure for longer than you expected to be able to. Perhaps you’ve used a third party to postpone the foreclosure process, or even filed for Bankruptcy to stop the sale – but this time it looks like they’re really going to go through with selling the home. Many people think that they are at the end of the road, with no legal option to stop their foreclosure, but filing a lawsuit to save your home may be the best option you have.

Filing a lawsuit against your lender to stop foreclosure is effective, and can ease all of the stresses that most homeowners deal with while stuck in the process. The official legal term is “mortgage litigation,” and most cases against lenders never make it to trial. Instead, our foreclosure attorneys go up against legal counsel that represents the bank, and negotiate a deal that prevents the two parties from having to spend the big bucks by taking the case to trial.

Many homeowners facing foreclosure don’t even take the time to call us for a free consultation because they think that filing a lawsuit to stop foreclosure will simply be too expensive and time consuming. The truth is, that our foreclosure defense attorney’s goal is to leave you in a much better position than when you first decide to sue the lender. Our free consultations will answer all your questions regarding cost, timeline, and what you can reasonably expect in the end.

There are 2 common legal options that can prevent a foreclosure. These options include either filing a lawsuit [foreclosure litigation], or filing a bankruptcy. The best legal strategy to stop a foreclosure depends on your personal situation and is best carried out by a successful foreclosure attorney with a strong track record of stopping foreclosure and saving homes.

A homeowner can sue their lender if they illegally issue a notice of trustee sale or initiate a foreclosure sale in violation of the California foreclosure laws. In many cases, lenders do not comply with the California laws that protect a homeowner from an illegal foreclosure. An experienced foreclosure lawyer can immediately determine if the lender has violated the law and if it is possible to file a lawsuit to stop foreclosure proceedings.

Bankruptcy is also a very effective legal strategy for stopping a foreclosure proceeding immediately. An experienced foreclosure attorney can file the case to stop a sale the same day. In many instances, bankruptcy allows individuals to restructure debts, get debt relief, stop foreclosure sales, and keep the home.

A loan modification is a negotiated agreement to change the monthly payment you make, the length of the loan, and the interest rates the loan charges. This type of negotiation does not require a foreclosure lawyer. When it is impossible to continue making payments on a property, a short sale is another way to avoid foreclosure. The lender must agree to sell the property for the current value. This usually results in avoiding a claim from the lender later, and may result in making money from the sale depending on whether there is equity in the property.

A deed in lieu of foreclosure can also prevent a foreclosure and possibly keep a foreclosure from affecting long term credit rating and a borrower’s ability to buy another home.

Foreclosure is a complicated and emotionally draining process. If you are having received a notice of foreclosure, notice of default, or notice of trustee sale, you should pick up the phone and talk to a foreclosure lawyer at Consumer Action Law Group. Their lawyers are trained and dedicated to preventing foreclosure, with a documented record of success in all methods of stopping foreclosure and saving homes. Call our foreclosure attorney today. We offer free legal advice on the first call, and we can stop your sale right away and save your home.

File a Lawsuit to Stop the Foreclosure

If your lender is using a no judicial process to foreclose—where the foreclosure is completed outside of the court system—then you might be able to delay or stop the foreclosure by filing a lawsuit against the lender to challenge the foreclosure. This tactic normally won’t work if the foreclosure is judicial because by the time of a foreclosure sale, you’ve already had your opportunity to be heard in court.

To prevail in your lawsuit against your lender, you will need to prove to the satisfaction of the court that the foreclosure should not take place because, for example, the foreclosing lender:

• cannot prove it owns the promissory note
• did not act in compliance with state mediation requirements
• violated the state’s Homeowner Bill of Rights
• did not follow all of the required steps in the foreclosure process (as determined by state law), or
• Made some other grievous error.

The downside to suing your lender is that if you’re unable to prove your case, this will only delay the foreclosure process. Lawsuits can be expensive and, if you have no reasonable basis for your claims, you could get stuck paying the lender’s court costs and attorneys’ fees. Call Ascent Law LLC today to learn more about Fighting Your Foreclosure in Court.

Talk to an Attorney

If you’re facing an imminent foreclosure sale and considering any of the options discussed in this article, it is strongly recommended that you consult with a local foreclosure attorney or bankruptcy attorney immediately. To get information about different loss mitigation options, you should also consider talking to a HUD-approved housing counselor.

Foreclosure Litigation

Unless you and your lender agree on how to cure the default on your mortgage, you are unlikely to stop the foreclosure process without taking court action. A lawsuit must be filed with the Superior Court in the county where your property is located alleging the basis for stopping the foreclosure — for example, violations of foreclosure or lending laws. Your lawsuit must also request that the court issue temporary restraining orders and a preliminary injunction to stop the foreclosure process while your lawsuit is pending. The temporary restraining orders are typically sought within days of filing the lawsuit and are generally granted by the court; however, by law the temporary restraining orders cannot last longer than 22 days. Therefore, the court will also set a hearing date within the 22 days regarding whether a preliminary injunction should be issued stopping the foreclosure for the duration of the lawsuit.

How much will it Cost?

Most homeowners that pick up the phone and call us for a free consultation want to know how much it will cost to file a lawsuit against their mortgage company to stop foreclosure. The truth is that we typically cannot answer this question until we ask a few of our own.
• We need to know when the sale is scheduled to be sold.
• How many payments have been missed on the mortgage?
• What type of income the homeowner currently has?
• Has the homeowner ever filed for Bankruptcy?
Depending on the circumstances, there may be a few other questions that we need answered as well before determining how much it would cost to enter into mortgage litigation.
How Long Will It Take?
Once you file a lawsuit against your mortgage company with Consumer Action Law Group, it typically takes 6 to 9 months to resolve the case. These numbers are merely an average, as we’ve had many progress quicker, and a few take a little longer than the allotted time above.
What Can You Expect?
You can expect the same results as our previous clients that have sued their mortgage company to stop their home from being sold at foreclosure auction. Our foreclosure defense lawyers have an excellent winning record in mortgage litigation cases, and are ready to fight for you. Call us today to speak with our team about how you can get started today.

Can I Really Stop Foreclosure?

Absolutely! Many recent cases have been filed improperly and an experienced attorney can assist with the identification and filing of substantive and procedural defenses with the court and vigorously defend your case.

Due to the lender’s actions, omissions or other facts surrounding your case, you may be able to stop making mortgage payments and stay
In your home while your attorney vigorously defends your property. This does not necessarily mean that you will not have to pay the loan back or completely Stop Foreclosure.

It is possible to completely Stop Foreclosure if the bank or lender is in violation of the Florida Unfair Lending Act or other predatory lending practices. If the lender has committed such a violation, the entire principal and interest balance may be waived and the mortgage may be voided. This may not be relevant in your case. But, at the very least, a successful defense can do is buying you precious time to:

Stay in your home
* Negotiate a work-out with the bank
* Sell your home for a fair price
* Refinance your home at a fair rate
* Continue to collect rent on the property
* Apply for a Court Ordered repayment plan
* File a Chapter 13 or 7 Bankruptcy

Foreclosure Attorney Free Consultation

When you need legal help with a foreclosure in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you with your foreclosure.

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

Ascent Law LLC

4.9 stars – based on 67 reviews

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from Michael Anderson https://www.ascentlawfirm.com/how-do-you-stop-a-foreclosure-from-lawsuit/

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Can The Executor Of A Will Take Everything?

An executor is a legal term referring to a person named by the maker of a will or nominated by the testator to carry out the instructions of the will. Typically, the executor is the person responsible for offering the will for probate, although it is not required that they fulfill this. The executor’s duties also include disbursing property to the beneficiaries as designated in the will, obtaining information of potential heirs, collecting and arranging for payment of debts of the estate and approving or disapproving creditors’ claims.

An executor will make sure estate taxes are calculated, necessary forms are filed, and tax payments are made. They will also assist the attorney with the estate. Additionally, the executor acts as a legal conveyor who designates where the donations will be sent using the information left in bequests, whether they be sent to charity or other organizations. In most circumstances, the executor is the representative of the estate for all purposes, and has the ability to sue or be sued on behalf of the estate. The executor holds legal title to the estate property, but may not use the title or property for their own benefit, unless permitted by the terms of the will. When there is no will, a person is said to have died intestate without testimony. As a result, there is no tangible testimony to follow, and hence there can be no executor. If there is no will or the executors named in a will do not wish to act, an administrator of the deceased’s estate may instead be appointed.

Choosing The Executor

The person who sorts out your property when you die and carries out the instructions in your will is called your executor. You can choose whoever you like to do this job (and it can be more than one person) but it’s an important choice to get right.

What does an executor do?

Your executor takes on the job of carrying out the instructions you leave in your will when you die. It can be a complicated job even if your instructions and your property are quite simple – it’s not unusual for the process to take several months.
The job of an executor is sometimes difficult. For example they might have to:
• Decide when to sell your property so that the people who inherit the proceeds get the most money
• Make sure the right amount of Inheritance Tax, Capital Gains Tax or Income Tax gets paid

Who can be an executor of a will?

Anyone aged 18 or above can be an executor of your will. There’s no rule against people named in your will as beneficiaries being your executors. In fact this is very common. Many people choose their spouse or civil partner or their children to be an executor. But that doesn’t mean they have to write them out of the will. Up to four executors can act at a time, but they all have to act jointly so it might not be practical to appoint that many people. It’s a good idea, though, to choose two executors in case one of them dies before you do. For example, you might choose one family member and one professional, like a solicitor or accountant. Professional executors tend to charge, but it can be helpful to have someone involved with specialist knowledge. You can appoint substitute executors to cover the situation if your first choice dies before you. When you’ve chosen your executor, Make sure you confirm your executor’s full name and address in your will otherwise they might not be able to do their job, if they cannot be found. Agreeing to be the executor of an estate (also known as a personal representative) is a bigger decision than most people realize. It is important to consider the responsibility of the position before agreeing to take on the role.

things you should know before signing on

• The Complexity of the Estate: Taking on the executor role is not simply a matter of reading the will and using it as a set of instructions for giving away someone’s wealth. An executor essentially steps in for the testator (the person who wrote the will) and sees to all the final arrangements—financial and otherwise.
• Make sure you can handle all that is involved before accepting the responsibility.
• Consider the complexity of the estate, whether you have the time to devote to the immediate responsibilities required, as well as the multitude of duties that come into play when the testator passes away.
Generally speaking, the larger the estate whether in terms of property, possessions, assets, or the number of beneficiaries the more difficult and time consuming it will be to disperse. For example, a house, several bank accounts, a stock portfolio, and possessions will all have different steps to dispersal and clearing hurdles like taxation. This is why high-net-worth people usually use professionals to both set up an estate plan and then help execute it when they pass on. That said, even small estates with few beneficiaries can become problematic if just one person contests the will or is otherwise inclined to throw a wrench into the process. The best way to assess how difficult the job will be is to ask to see a copy of the current will or a draft of the will if one is in the works. If there are obvious red flags—unequal distributions to children, trusts or annuities to untangle, or anything else you feel uncomfortable with—it may be best to pass on the responsibility.
• The Time Commitment: Being an executor takes time and energy, and requires a lot of attention to detail—in fact, it is almost solely concerned with details. It is far better to decline the honor of becoming an executor of an estate for the right reasons (the inability to do the job properly) than to take it on for the wrong ones (a sense of obligation). Before you agree to execute a will, you should be certain that you have the time to do the job. If you have a busy professional life or a lot of family commitments, it may be difficult to set aside the time to be an executor. It is important to make the decision based on your current situation. As long as the testator is alive, you can be added or removed as the executor of the estate. You can also request a co-executor or professional help. However, you will not be able to appoint someone else if you find out you don’t have the time after the testator has passed away. So it is important to review your decision to serve as an executor every time your situation changes significantly (you get married, have kids, get older, etc). It is natural for a testator to change executors throughout a lifetime.
• Immediate Responsibilities: Some people agree to be an executor thinking that it will be years before they have to do any work. However, doing the job properly means going to work immediately. In the words of Jim Morrison, “The future’s uncertain, and the end is always near,” so agreeing to be an executor means that your legal responsibility could be called upon at any time.

To be prepared, you should:
• Make sure the testator is keeping a list of assets and debts, including bank accounts, investment accounts, insurance policies, real estate, and so on.
• Know where the original will and the asset list is being held and how to access them.
• Know the names and contact details of attorneys or agents named by the testator, and what their function is.
• Discuss the testator’s wishes as far as a funeral or memorial service, including instructions for burial or cremation.
• Discuss the will with the testator and, if possible, with the beneficiaries in order to minimize problems in the future.
• Have a copy of all these documents.
Again, it is important that you have the time to do gather this information as soon as possible after you’ve agreed to be the executor.
• Duties After the Testator Dies: Of course, the real work starts when the testator passes away. It is then that the executor is called on for funeral arrangements, locating and filing the will, clearing probate, managing assets, clearing debts, submitting tax returns, establishing and managing any trusts, responding to legal challenges, and more. In reality, being an executor is simply carrying out the details of the will and complying with legal requirements. It is easy as long as you are organized and detail oriented. Even if you aren’t detail oriented, the estate will pay reasonable costs for professional help. That said, you will still need to be involved at every stage.
• How You Will Be Paid: Each state has laws determining how an executor is paid. It can be by the hour, as a flat fee or as a percentage of the estate. Sometimes the fee is determined by the probate court judge. In addition to the regular fee, there may be an “extraordinary fee” if an unusual amount of work is involved, for example, selling off personal property or managing litigation on behalf of the estate. The testator is permitted to state in the will how they want the executor to be paid and that may override applicable state law. Executors are also entitled to compensation for expenses incurred as they carry out their responsibilities. Payment is made from the estate after all the bills are paid, but before any money goes to the beneficiaries. If being an executor is likely to take a major portion of your time and cut into your ability to do your regular work, it’s especially important to get some sense of how you will be compensated. Executors are also permitted to refuse compensation—for example, if you are doing this task for a member of your family and want the whole balance of the estate to go to the beneficiaries.

Duties and Responsibilities of an Executor of a Will

Being chosen an executor is both an honor and an obligation. Before accepting, you should be sure you understand what you’re getting into. Broadly speaking, you’ll be distributing the deceased person’s property and arranging for payment of estate debts and expenses. Specific duties will include: choosing the type of probate, filing the will for probate, setting up an account for paying bills, paying estate debts and taxes, maintaining willed property, making and filing an inventory with the court, distributing assets, and many more. It’s a big commitment. An executor is legally responsible for sorting out the finances of the person who died, generally making sure debts and taxes are paid and what remains is properly distributed to the heirs. State law varies on the requirements of who can serve as executors, but generally, executors tend to come from the close ranks of family, spouses, children, parents and siblings. Although state laws provide for the payment of executors, since so many executors are close family members, they often don’t ask to be compensated. In addition to carrying out duties in a diligent, impartial and honest manner, an executor may also be required to perform any or all of the following activities, among others:

• Get a copy of the will and file it with the local probate court: The executor is in charge of locating, reading and understanding the will usually, even if probate isn’t necessary, the will still must be filed with the probate court. At this step, the executor also determines who inherits the property.

• Notify banks, credit card companies, and government agencies of the decedent’s death: The Social Security Administration along with the decedent’s bank and credit card companies are just some examples of who should be notified of the death.

• Decide what kind of probate is necessary: Because inheritance laws may facilitate the passing of certain properties without probate (such as property held jointly by a husband and wife), probate isn’t always necessary. Additionally, the value of the estate may allow it to pass through an expedited process. If probate is required, you need to file a petition with the court to be appointed an executor. You will likely need an attorney’s assistance to accomplish this.

• Represent the estate in court: An executor may be required to appear in court on behalf of the estate.
• Set up a bank account for incoming funds and pay any ongoing bills: If the decedent is owed money such as incoming paychecks, this account can hold them. An executor should be on the lookout for mortgages, utilities and similar bills that still need to be paid throughout the probate process.
• File an inventory of the estate’s assets with the court: In many states, the court requires the executor to submit a detailed inventory of the assets in the probate estate.

• Maintain the property until it can be distributed or sold: This includes keeping up a house until it is distributed to heirs or sold- even deciding whether the property needs to be sold at all. Also, an executor must be sure to find all personal property in the estate and protect it until distribution. If the decedent had a safety deposit box, the executor should locate it and keep it safe.

• Pay the estate’s debts and taxes: State law dictates the procedure for notifying creditors, and the estate must also file income tax returns from the first of the current year until the date of the decedent’s death. If the estate is large enough, there may be state and/or federal estate taxes to pay as well

• Distribute assets: Distribution occurs according to the wishes expressed in the will. If there is no will, state intestacy laws apply.

• Dispose of other property: If there is any property left after paying off the estate’s debts and distribution to heirs, the executor is responsible for disposing of it.

Since estates vary greatly in size and complexity, and executor’s job may be easy or challenging to carry out- and responsibilities may very well go beyond the 10 basic items in this list. But while an executor can decline the position or resign at any point in the process, sometimes all that is needed is some legal advice. Consulting with an attorney is generally to make sure that the executor properly complies with his or her duties.
An executor is the person named in the Will who will take on the responsibility to administer the estate. The responsibilities of an executor include:

• Identify the assets and liabilities of the testator;
• make funeral arrangements;
• make an inventory of the property in the estate;
• probate the Will;
• call in the property after grant of probate is issued;
• pay all the debts and taxes;
• Distribute the property to the beneficiaries.

Executor Attorney in Utah Free Consultation

When you need legal help with a probate in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. 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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from Michael Anderson https://www.ascentlawfirm.com/can-the-executor-of-a-will-take-everything/

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Thursday, 27 February 2020

Can A DUI Charge Be Dropped?

Understanding what it means to have charges dropped as opposed to dismissed is very important if you are facing criminal charges. When you go to court, the prosecutor has a lot of flexibility to decide whether your charges will continue, and what crimes should be added or removed from your list of charges. This is called “prosecutorial discretion,” and is an important part of our criminal justice system in Utah and across the country. If charges seem overly harsh, do not fit the facts, or come from illegal police activity, the prosecutor can choose to drop charges. A prosecutor’s job is to ensure that justice is done, not to simply get convictions. This means prosecutors will often drop unjust charges. Alternatively, charges can only be dismissed by a judge. When your case goes to court, it is the government’s responsibility to prove you committed the crimes as charged. This means they must meet the burden of proof. At a preliminary hearing, the burden of proof is to show there was probable cause that you committed the crime. This means proving that it is likely that a crime occurred, and you were likely responsible.

At trial, the burden of proof is beyond a reasonable doubt. This means showing that you undoubtedly committed the crime as charged. If the government cannot meet their burden or the judge finds the charges do not fit the alleged activity, the judge may dismiss the charges. Any criminal charge is eligible to be dropped or dismissed. However, many prosecutors may have instructions from their superiors or a personal rule that they will not drop charges. This may make it difficult to convince them your DUI charge is unjustified, but there is always the option of dismissal. Judges are held to a very high standard, and they cannot allow illegal or unjustified charges to go through. If your DUI charges do not fit the conduct or were the result of illegal police activity, your lawyer may be able to convince a judge to dismiss the charges. After a DUI arrest in Utah, you may be able to enter a plea to the reduced charge of impaired driving, but only under the circumstances described here. In Utah, impaired driving is a class B misdemeanor punishable by up to six months in jail and a fine of up to $1000.00. There are two ways that you may be allowed to enter a plea to impaired driving.

The first way requires that the prosecutor agree to an impaired driving plea, and that you complete all the requirements of court ordered probation. The second way that you can plead to impaired driving, requires that the prosecutor agree to it, and that the court find that the impaired driving plea is in the interest of justice.

What this means is that there are two types of impaired driving pleas. The first type of impaired driving plea is conditioned on the successful completion of probation. This means that you can plea to impaired driving, but if you fail to successfully complete the terms and conditions of probation, the court will change the reduced impaired driving plea to a full DUI conviction.
The second type of impaired driving plea is not conditioned on successful completion of probation; it is entered immediately as impaired driving and can never be changed to a DUI. Because an impaired driving plea depends on the prosecutor’s approval, (and each prosecutor is different), it is impossible to say for certain when a person will be offered a plea to impaired driving.
Advantages of an Impaired Driving Plea
There are several advantages to an impaired driving plea.
If your license has not already been suspended by Utah’s Driver License Division, it will not get suspended. If your license has been suspended, the Driver License Division will reinstate your driver license before the 120 day suspension is over, but no sooner than 90 days after the date of arrest. And, unlike a DUI, there is no mandatory jail or fine with an impaired driving plea. It is possible, though often very difficult, for DUI charges to drop against an accused offender. Having charges dropped requires solid evidence and strong legal arguments. Even if you find a so-called loophole in the law, don’t expect that to necessarily carry you to freedom, especially if your blood alcohol content is over 0.08%.
The first factor to consider is whether your DUI charge was genuinely valid in terms of you being in an intoxicated state while driving. If a DUI was a misunderstanding – for example, an equipment malfunction, or some other type of mishap that produced the wrong outcome, your best bet in getting your charges dropped will be getting a lawyer and directly pursuing the solid evidence of the case. That’s the quickest route to clearing your name. If, on the other hand, you were indeed in an intoxicated state but you have reasons for wanting the charge dropped from your record, then you’re going to have to find some other way to have the charge nullified. On some occasions, the following basis may prove sufficient:
• if you suspect discriminatory or other conditions were behind your stop, this may be your basis for clearing the charge (An officer must have a valid reason to stop a car and test the driver);
• Was the arrest done by the book? Were you read your rights, given breathalyzer tests using functioning equipment, and taken into custody according to standard rules? If not, any deviations from the normal could be a violation of your rights that provide a basis for dropping or modifying the charges.
• Did the trial proceed as it should have? Were you given access to a defense lawyer, and did the trial take place within the required time period? Any delays or unusual processes during the trial might be enough to render the charge invalid.
Getting a DUI dropped isn’t easy nor should it be. For such a serious crime, it makes sense that only a genuine mistake or violation of your rights would be enough to get it removed from your background record. However, if you did experience a mistake or violation, then you can and should look into ways to get the DUI removed, so it won’t haunt you for several years into the future. Getting the help of an experienced DUI lawyer can also make it easier for you to get charges dropped, so it is important to consult with an attorney as soon as possible after your DUI arrest.

Utah’s DUI laws prohibit all motorists from operating a motor vehicle:
• with a blood alcohol concentration (BAC) of .05% or more, or
• while under the influence of drugs or alcohol.
A driver is considered under the influence if incapable of safely operating a vehicle as the result of ingesting alcohol, drug or any other substance. Utah has a not-a-drop law that makes it illegal for motorists who are under the age of 21 years to drive with any detectable amount of alcohol in their system. In Utah, a motorist can get a DUI even without actually driving. In addition to driving or operating a car, a person may not be in actual physical control of a car while under the influence of alcohol, drugs, or with a BAC of 0.08% or more. The gist of this law is to keep roads safe from even the potential danger that an intoxicated driver creates when getting behind the wheel.
Utah courts apply a totality of circumstances test to decide whether a particular driver is in actual physical control of the vehicle. Some factors courts consider include:
• where the driver was seated in the car
• whether the driver had the ignition key
• whether the driver was touching the steering wheel or other operating controls, and
• whether the driver was asleep or awake.
Determining actual physical control is fact specific. No two situations are exactly alike. It’s best to consult an experienced DUI attorney to see if you’ve been properly charged of an actual-physical-control DUI. The best case scenario if you’re charged with a DUI in Utah is the prosecution ends up dismissing the charge. But unless the court throws out evidence that’s critical to prove the charge, the prosecution is unlikely to agree to a dismissal. But in some cases, a reduction to an impaired driving charge is possible. An impaired driving charge is just an alcohol-related driving offense without the mandatory jail, fines, and license suspensions that come with a DUI conviction. A DUI charge in Utah is a serious matter. The penalties involved are severe and can have long lasting effects on your finances as well as your personal and professional life. Defending yourself against a DUI charge is also a serious matter. Utah’s DUI laws are complex. Any mistake you make will have a profound effect on your ability to drive, the amount of your fines, your freedom, your future insurance rates, and much more.

A conviction on a DUI charge will have immediate serious effects on your life. To begin with there are the court imposed fines. A first time DUI conviction carries a minimum fine and fee of $1,420. If the circumstances warrant, the judge has the discretion to raise the fines and fees to $1,920. In addition, if your DUI involved an accident where any person was injured, or if there was a child in your vehicle under 18 years of age at the time of your arrest, the conviction carries a fine and fee of $4,625. Next, there is the potential for incarceration. There is a mandatory minimum sentence of two days in jail for a first time DUI conviction. In general, judges usually order a defendant to perform two days of community service in lieu of jail time. If the circumstances warrant, this sentence can be increased up to 180 days. If your DUI involved an accident where any person was injured, or if there was a child in your vehicle under 18 years of age at the time of your arrest, conviction is punishable by up to 365 days in jail. Then you have the suspension of your driver’s license. If you are over 19 years of age but less than 21 years of age, a first time DUI conviction comes with a mandatory six month suspension of your driver’s license. If you are younger than 19, the suspension time is increased to one year. If you are 21 years of age or older, the suspension period is 120 days, if there was no refusal, which carries an 18 to 36 month revocation. Next, we have probation. A first time DUI conviction also comes with a possibility of a period of probation up to 18 months. This means that the court could keep your case open for 18 months following the date of conviction. During this time, the clerk of the court will verify that you have followed all the conditions of probation, including paying your fine, performing community service, and attending alcohol/drug education classes.
Finally, there are a number of other effects. You may need to have an ignition interlock device installed in your car which you’ll be required to pay for out of your own pocket. You will be required to keep this device installed for a period of 18 months. You will also be required to attend a mandatory alcohol/DUI education class. You will also find that your future auto insurance rates will likely rise by several thousand dollars.

In some sense, this is a form of not taking the charges against you seriously enough. You’ve just seen what the penalties are for a first time DUI conviction. When you represent yourself, you greatly increase the odds that you will be hit with each and every one of these penalties when your case goes to court. Utah’s DUI laws are complex. Utah’s judges and prosecutors know these laws inside and out. The prosecutor who handles your case has likely dealt with hundreds of DUI cases just like yours. The courtroom is their home court and the laws that govern it are a playbook that they know like the back of their hand. You will walk into that court as a rookie in a room full of seasoned professionals. Because of this, any chances that you may have had to avoid conviction or the worst aspects of the penalties for conviction will vanish like smoke. The prosecutor will see your case as an easy win and will treat you accordingly.
There’s an old Latin saying “caveat emptor” which means “let the buyer beware.” When it comes to selecting an attorney to handle your DUI charges, nothing could be truer. Not all Utah DUI attorneys are created equal. An experienced DUI attorney who knows the law and understands the court system is very different from an attorney who handles the occasional DUI in order to make ends meet. Attorneys will use their skill and knowledge to advocate on your behalf. They will use the evidence gathered in your case against the State, pointing out every mistake made by the police during your DUI stop and arrest. They will point out any potential inaccuracies in your blood alcohol testing. They will raise all available defenses that will mitigate the evidence against you in an attempt to have your case dismissed or to obtain a verdict of innocence. The other attorney will charge you a low fee and then likely advise you to plead guilty and accept the prosecution’s plea bargain offer. So, when you are considering which attorney to hire, remember caveat emptor. Sometimes you do get exactly what you pay for.