The Truth About Wills in Utah

The following information reflects Utah law. It has been provided for informational purposes only, and is not intended to render legal advice. It is not intended to apply to any specific situation. Legal principles discussed can differ in individual situations. Before applying any of this information to your personal use, you should consult with your lawyer.

DEFINITIONS

Decedent: A deceased person–the person who made the Will.

Estate: All property of a decedent subject to probate. In a tax sense, all items of value owned by decedent at death, whether or not subject to probate.

Intestacy: Pattern of asset distribution when there is no Will.

Personal Representative: Modern term for the person named in a decedent’s Will to carry out the instructions in the Will. Historically known as an “executor” (male) or an “executrix” (female).

Probate: The legal process by which a decedent’s Will is validated and transfer of title to decedent’s assets is approved.

Testator/Testatrix: An individual who makes a Will.(testator = male, testatrix = female)

Will: A written declaration of an individual’s wishes for the disposition of property after death.

QUESTIONS AND ANSWERS

Q: What is a Will?

A Will is a written declaration that:

  • names a guardian (if necessary) for your unmarried children under age 18.
  • Sets forth your wishes for distribution of your assets after your death.
  • Names a personal representative to manage your estate and distribute your assets.

Q: Who needs a Will?

Everyone who has minor children or owns (or expects to own) assets.

Q: Who can make a Will?

In Utah, anyone 18 or older can make a Will, provided he or she is “of sound mind.”

Q: What does it take for a Will to be valid?

For a Will to be valid, it must be in writing and signed by the Testator. If a main provision of the Will is typewritten or printed, signing of the Will should be witnessed by two adult witnesses. For convenience in probating a Will, the Will should contain “self-proving” clauses for a notary and witnesses to sign.

Q: Can Wills be handwritten?

Yes, provided that the main provisions of the Will are in the handwriting of the Testator and the Will is signed by the Testator. These are called “holographic” Wills. Holographic Wills do not need to be witnessed or notarized.

Q: What should a Will contain?

A properly prepared Will should:

  • name the persons to receive your assets after your death–-both personal property and real estate-–and when and how those assets are to be received.
  • name your personal representative and alternate personal representatives.
  • mame the person to be guardian for your unmarried children under age 18 in the event there is no surviving parent.
  • if advisable, use or set up a trust for the care of minor children or other loved ones with special needs.
  • where needed, set up multiple trusts or make asset divisions to minimize estate taxes.

Q: What happens if a person dies without a Will?

When a person dies without a Will:

  • a decedent’s remaining assets will be distributed under a pattern determined by state law. This is called “intestate succession” or “intestacy.”
  • the law will treat all of the decedent’s assets the same and there will be no special provisions for family businesses, family farms, heirlooms or other special items. If the heirs do not agree among themselves to a specific division of assets, it may be necessary to sell assets to achieve the distribution pattern prescribed by law.
  • the court must choose who will be guardian for minor children and who will be personal representative.
  • certain techniques for saving estate taxes may not be available.
  • if there are no children of a prior marriage, the surviving spouse takes 100%. If decedent left children of a prior marriage, the surviving spouse receives the first $50,000 of assets plus ½ of the balance and the children of decedent’s prior marriages divide the remaining balance in equal shares.

Q: Does good estate planning require other documents besides a Will?

Yes. A good estate planning lawyer will usually recommend and prepare other documents to assist your overall plan such as a Financial (durable) Power of Attorney, Advance Healthcare Directiives (Living Will), a Nomination of Guardian by an Adult, a Nomination of a Conservator by an Adult, a Memorandum for Distribution of Tangible Personal Property and other useful documents. Also, if a Living Trust is desired as a primary controlling document in the plan, a Living Trust document should be prepared.

Q: When does a Will take effect?

A Will only becomes effective after your death and after it is “accepted” by the probate court.

Q: Is a lawyer required to prepare a Will?

No, but it is advisable to have a lawyer do the preparation. As with any
“do-it-yourself” effort, there is risk of doing it wrong or creating problems by your lack of knowledge.

Q: What is a “living Will?”

A “living Will” is not a Will at all. The term “living Will” deals with medical matters, and it lets others know how you feel about life support in terminal situations. It is usually a form of power of attorney granted to a loved one to make life support decisions for an ill relative. A “living Will” has nothing to do with disposing of property at death. As such, that document should not be filed with the probate court.

Q: Can a Will be changed or revoked?

Yes, a Will may be changed or revoked at any time by the Testator while living, and while “of sound mind.” A change to a Will is referred to as a “codicil” and, to be valid, must be done with the same formalities as required for a valid Will.

Q: Can a Will be changed by notations in the margins?

No. Such changes would not satisfy the witness requirements for a formal Will. A codicil or a new Will should be used to make changes in a Will.

Q: Does divorce revoke a Will?

Yes, in Utah, but only as to provisions relating to the ex-spouse — either for receiving
assets or for being named personal representative or trustee.

Q: How else can a Will be revoked?

A Will can be revoked by physical destruction (shredding, burning, tearing up) if done by the Testator with the intent to revoke, or by another written document expressly declaring the Will to be revoked.

Q: How often should a Will be reviewed?

A Will should be reviewed (and revised) as often as necessary to account for changes in the family (birth, death, marriage, divorce), changes in domicile, changes in assets and changes in tax and probate laws. Generally, a Will should be reviewed at least every 5 years. If advisable, use or set up a trust for the care of minor children or other loved ones with special needs. Where needed, set up multiple trusts or make asset divisions to minimize estate taxes.

Q: Are there assets that a Will doesn’t control?

Yes. A Will controls only assets in the decedent’s name alone and assets titled in
the name of the decedent and another person as co-owners or as tenants in common. However, assets held in the following manner at death are not subject to the decedent’s Will, except where the decedent’s estate is designated as a beneficiary:

Assets not controlled by a Will:

  • Assets held in a trust
  • Assets held in joint tenancy
  • Assets with beneficiary designations (annuities and death benefits from life insurance, the government)
  • IRAs, pension, profit sharing and 401(k) plans
  • Money in “pay-on-death” accounts

Q: How is a Will different from a Living Trust?

A Will becomes effective only at death; a Living Trust becomes effective when signed. A Will must be probated to become effective after death; a Living Trust does not need to be probated. A Will does not require re-titling of assets during the Testator’s lifetime; a Living Trust, to have effect, often requires the re-titling of assets into the name of the Trust while the Trustmaker is yet alive. A Will is potentially a public document because it must be filed with the probate court at death; a Living Trust is a private document and can remain so unless there are lawsuits concerning the trust. A Will does not provide for asset management while you are alive but incapacitated; a Living Trust may provide for management of assets in the trust while you are incapacitated.

Q: Does a person with a Living Trust also need a Will?

Yes. For one thing, not all assets should be placed in a trust. Also, there may be assets outside the trust at your death that will require a valid transfer to your beneficiaries or over to your Living Trust. Thus, a Will is needed even if you have a Living Trust.

Q: Can a copy of a Will be probated?

Generally, only the original of a Will can be filed for probate. However, the Court may accept a copy (showing signature) if there are no objections. Where a decedent owns property in two states, the original Will would be filed for probate in one state and an authenticated copy would be filed for probate in the other state. Thus, it is important to preserve and protect the original of the Will for that purpose.