A will, also called a “last will and testament,” can help you protect your family and your property. You can use a will to:
• leave your property to people or organizations
• name a personal guardian to care for your minor children
• name a trusted person to manage property you leave to minor children, and
• name a personal representative, the person who makes sure that the terms of your will are carried out.
In Utah, if you die without a will, your property will be distributed according to state “intestacy laws.” Utah’s intestacy law gives your property to your closest relatives, beginning with your spouse and children. If you have neither a spouse nor children, your grandchildren or your parents will get your property. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, great aunts and uncles, nieces, nephews, cousins of any degree, and the descendants of a spouse who dies before you do. If the court exhausts this list to find that you have no living relatives by blood or marriage, the state will take your property.
Requirements for Signing a Will in Utah
To finalize your will in Utah:
• you must sign or acknowledge your will in front of two witnesses, and
• your witnesses must sign your will within a reasonable time after you signed or acknowledged it.
However, Utah allows you to make your will self-proving and you’ll need to go to a notary if you want to do that. A self-proving will speeds up probate because the court can accept the will without contacting the witnesses who signed it. To make your will self-proving, you and your witnesses will go to the notary and sign an affidavit that states who you are and that each of you knew you were signing the will. In Utah, you can use your will to name a personal representative who will ensure that the provisions in your will are carried out after your death. If you don’t name a personal representative, the probate court will appoint someone to take on the job of winding up your estate. In Utah, you may usually revoke or change your will at any time unless you signed a contract not to revise your will. You can revoke your will by:
• burning, tearing, canceling, obliterating, or destroying all or part of the will
• ordering someone else to burn, tear, cancel, obliterate, or destroy all or part of the will in front of you, or
• making a new will that says it revokes the old one or by having contradictory terms to the old will.
If you have two wills and it’s not clear whether you revoked the old will or not, Utah has rules that determine whether your new will revokes the old one or simply adds to it. If you intended to revoke the old will, the old will is revoked. Utah law presumes you intended to revoke your old will if the new will disposes of all of your estate. If you didn’t dispose of all of your estate in your new will, Utah law presumes you only meant to add on to your old will. In this situation, the executor should follow the instructions in both wills. If there’s a contradictory term, the executor should follow the instructions of the new will for that particular term. If you and your spouse divorce (or if a court determines that your marriage is not legal), Utah law revokes any language in your will that leaves property to your spouse or names your spouse to be your executor. This rule also applies to your former spouse’s relatives. However, this rule does not apply if you specifically state in your will (or divorce decree or contract relating to the division of your property) that divorce should not affect the provisions in your will or you remarry your spouse. If you have any concerns about the effects of divorce on your will, see an estate planning attorney for help. If you need to make changes to your will, it’s best to revoke it and make a new one.
However, if you have only very simple changes to make, you could add an amendment to your existing will this is called a codicil. In either case, you will need to finalize your changes with the same formalities you used to make your original will. A will in Utah does not need to be notarized in order to be legal and enforceable. However, it does need to be signed by at least two witnesses, each of whom signed within a reasonable time after he or she witnessed either the signing of the testator’s will or the acknowledgment of that signature by the testator. Nonetheless, having your will notarized is a good idea. The reason for this is that a will that is signed by the testator and the witnesses in front of a notary public is considered a “self-proving” will. This means that the signatures on the will are deemed authenticate and witnesses will not be required to testify at subsequent probate proceedings. This becomes very important in cases where one or both of the witnesses pass away or otherwise become unavailable before the testator dies. In that scenario, without notarized affidavits, it becomes more difficult to prove the authenticity of a will because there are no witnesses to testify to the authenticity of the signature. Considering the relatively low cost and ease to get your will notarized, it makes a lot of sense to sign it in front of a notary public. Especially if it is likely that the witnesses will pass away before or around the same time as the testator or if it seems like the will may be contested.
Requirements of a Valid Will in Utah
A Last Will and Testament is a legal document that allows you to identify your beneficiaries, designate the way in which your property will be distributed, nominate a legal guardian for any minor children, and nominate an executor to manage your estate, pay your debts, expenses and taxes, and distribute your estate according to your wishes. To make a valid Will in Utah, you must have legal capacity, testamentary capacity, and testamentary intent. Additionally, certain formalities must be followed.
You have legal capacity to make a Will in Utah if you are 18 years of age or older, are or have been lawfully married, or are a member of the armed forces of the United States.
Testamentary capacity refers to being of “sound mind”. You have testamentary capacity to make a Will in Utah if you have the mental ability to understand:
• the business in which you are engaged;
• the effect of making a will;
• the nature and extent of your property;
• the persons who are the natural objects of your bounty (e.g. your relatives);
• the fact that you are disposing your assets;
• how all these elements relate so as to form an orderly plan for the disposition of your property
You have testamentary intent if at the time you sign your Last Will and Testament; you intend to make a revocable disposition of your property to take effect at your death.
In addition to legal capacity, testamentary capacity and testamentary intent, certain formalities need to be followed for a Will to be valid. The formalities that need to be followed depend on what type of Will you have made.
Utah recognizes two types of written Wills.
• An attested Will is the most common type of Last Will and Testament. To be valid, it must be in writing, signed by you, or another person at your direction and in your presence, and attested in your presence by at least two credible witnesses over the age of 14.
• A holographic Will is a Will that must be written completely in your own handwriting, and signed by you. There is no requirement that it be signed by any witnesses.
When a Will is probated, the self-proving affidavit substitutes for in-court testimony of witnesses as to the validity of the Will, which saves considerable time and expense. If a Will does not meet the entire requirement set forth by the statutes, it will be declared invalid, meaning that your estate could be distributed according to a statutory formula rather than the way you would have preferred.
Writing your own will is a relatively straightforward process if your assets and bequests are also straightforward. In these circumstances, as long as you comply with the laws of your state, your will is likely to stand up in a court of law and be executed according to your wishes. You can easily write your own will through one of two methods: either draft it yourself on a computer or typewriter, or create one through an online program.
• Write the introduction to the will. Start by clearly labeling the document “Last Will and Testament.” Next, state your full name and address, and testify that you are over the age of 18, are of sound mind and are not making the will under duress. Finally, write that this is your last will and testament, and that it revokes any previously made will or codicil. You may want to include your social security number and birth date for clarity. If you are using an online program, the program should automatically generate this introduction.
• Select an executor. An executor is the person who carries out the directions of your will. Most married people name their spouse as the executor; however, it is also common to name a capable friend. Talk to this person about his willingness to take on this responsibility before officially naming him as executor. Also choose an alternate executor in the event that your first choice is unwilling or unable to perform his duties upon your death.
• Identify your heirs. Normally, your spouse, life partner and children are the primary beneficiaries; however, you may want to make provisions for other persons. Be sure to clearly identify these persons so that there is no ambiguity as to their identities. Also, note that in most states the spouse has a legal right to inherit. Seek professional legal advice if you reside in one of these states and want to disinherit your spouse.
• Name a guardian for any minor or dependent children. If your children are of an age where they still require guardianship and have no other natural parent to take care of them, choose a person to take care of your children until they reach the age of majority. Be sure to discuss this responsibility with the person that you would like to name, as this is a weighty commitment that could last for many years. If you do not choose a person, the court will appoint one for you.
• Assess and divide your property. List your assets, including real estate, bank accounts, retirement accounts, stocks, bonds and tangible assets, and then assign your heirs a percentage of your total assets. For example, you might say that your wife is to receive 50 percent of your assets, while both your children will receive 25 percent each. You can also make individual bequests of specific pieces of property or cash amounts to individuals other than your named heirs. Note that assets that already have a designated beneficiary or are jointly-owned are not considered part of your estate.
• Sign the will. If you have created a will through an online program, have the document sent to you before signing sign it. Some states require that your signature be notarized, meaning signed in the presence of a public notary and stamped with the notary’s seal.
• Ask witnesses to sign the will. Every state requires at least two witnesses to sign the will, and some states require three. The witnesses usually must not be named beneficiaries in the will. Take care to carefully follow the laws of your state with regard to witnesses, as a mistake can invalidate your entire will.
Will Attorney in Utah Free Consultation
When you need legal help with a last will and testament in Utah, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We can help you with wills, trusts, estate planning and probate. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506