A last will and testament is an important step in planning the distribution of your estate (real and personal property) upon your death. Utah wills permit the testator, the person writing the will, to provide for a spouse, children, other loved ones, and pets after his death as well as to name a personal representative for the estate.
Not to be confused with a will, a Utah living will, or health care directive, provides instructions should you become incapacitated and incapable of making decisions regarding your medical care.
Do you need a last will and testament?
Although a last will and testament are not legally required, without a will, state laws (called laws of intestacy) determine the distribution of an estate's assets. Because the outcome may not coincide with the decedent's (the person who passed away) wishes, it is generally advisable to create a last will and testament.
In addition to providing the opportunity to direct asset distribution, a Utah last will and testament also allows the testator to make a charitable gift, create a trust for any person, name a legal guardian for minor children, or create a “pet trust” in order to provide for the care of an animal after its owner’s death. The will also allows the testator to nominate a person to oversee the estate and make sure the will is properly handled. This person is called the executor.
Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person.
Once a Utah will is proven, the executor can proceed to wrap up the estate, which includes collecting and protecting property, paying off debts, and then distributing assets.
Utah offers a simplified probate process for estates that do not exceed $25,000 in value and do not contain real property.
Intestacy: Dying without a will
Someone who dies without a will is called “intestate,” which invokes the strict laws of intestacy. In Utah, in the absence of a will, a surviving spouse inherits the entire estate even if the decedent share descendants. If the decedent also has descendants from someone other than the surviving spouse, the surviving spouse inherits the first $75,000 of intestate property plus half the balance, and the descendants inherit the rest.
If there is no surviving spouse, descendants, or parents, other relatives, including siblings and grandparents, will inherit depending on the closeness of the relation.
Exceptions to ability to distribute property
Not all property can be distributed according to a will. Some exceptions in Utah include the following:
- Property owned in joint tenancy with right of survivorship
- Elective share of surviving spouse
- Homestead allowance for surviving spouse (or minor or dependent children if no surviving spouse)
- Exempt property of up to $10,000 in value for surviving spouse (or children if no surviving spouse)
- Family allowance for surviving spouse and minor children
- Share to surviving child born or adopted after the execution of the will
Form a last will in Utah
The basic requirements for a Utah last will and testament include the following:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of sound mind.
- Signature: The will must be signed by the testator or by someone else in the testator’s name in his conscious presence, by his direction.
- Witnesses: A Utah will must be signed by at least two witnesses, each of whom has signed within a reasonable time after witnessing the signing of the will or the testator’s acknowledgment of the signature or of the will.
- Writing: A Utah will must be in writing.
- Beneficiaries: A testator can leave property to anyone.
Other recognized wills in Utah
Utah recognizes holographic (handwritten) wills so long as the signature and material portions of the document are in the testator’s handwriting.
Changing a Utah last will and testament
A Utah will may be changed at any time by codicil, or an amendment to the will, which must be executed in the same way as a will.
Revoking a Utah last will and testament
The revocation of a Utah will can be accomplished by executing a subsequent will or by performing a revocatory act of the will, including “burning, tearing, canceling, obliterating, or destroying,” done by either the testator or by someone else at his direction in his conscious presence with the intent and for the purpose of revoking the will.
Utah last will and testament FAQs
What are the basic requirements to make a valid will in Utah?
You must be at least 18 years old and mentally capable of understanding what you're doing when you create your will. Your will needs to be written down, and you must sign it in front of two witnesses who aren't getting anything from your will. These witnesses must watch you sign your will or hear you say that the signature is yours before they sign it as well. If you can't physically sign the will yourself, someone else can sign it for you, but this must happen while you're watching and you must tell them to do it.
Can I write my will by hand without witnesses in Utah?
Yes, Utah allows handwritten wills (called holographic wills) without witnesses, but only if your signature and the important parts of the will are written entirely in your own handwriting. While this might seem easier than getting witnesses, handwritten wills are much more likely to cause problems later. Family members might argue about what your handwriting says or even if you really wrote it yourself. Courts often have to spend time figuring out what you meant, which can be expensive and stressful for your family.
What happens to my property if I die without a will in Utah?
Utah law decides who gets your stuff, and it may not be what you want. If you're married and all your children are also your spouse's children, your spouse gets everything. But if you have children from a previous relationship, your spouse would get the first $75,000 of your property plus half of whatever's left over. Your children would split the remaining half among themselves. If you're not married, your children get everything equally. If you don't have children, your parents inherit your property. If your parents have died, then your siblings would inherit. This keeps going through your family tree until someone is found to inherit your property.
Can I leave my property to anyone I want in my Utah will?
You can leave your property to almost anyone, however, Utah law protects your spouse and minor children by giving them certain rights to your property, no matter what your will says. If you have a child born or adopted after you write your will, that child automatically gets a share of your estate. This prevents you from accidentally leaving out a new family member.
How do I change or cancel my will in Utah?
You can change your will by creating a "codicil," which is basically an official amendment that follows the same rules as making a new will (written, signed, and witnessed). To completely cancel your will, you can either make a brand new will that says it replaces the old one, or you can purposely physically destroy the old will. Someone else can destroy it for you, but they must do it while you're watching and because you told them to.
Do I need to go through probate court with a Utah will?
Most wills need to go through probate court, which is the legal process that proves your will is real and makes sure your property gets distributed correctly. However, Utah offers a simplified process for smaller estates that are worth less than $25,000 and don't include real estate. Some property doesn't go through probate at all, like jointly owned property that automatically goes to the surviving owner, or accounts that already have named beneficiaries (like life insurance or retirement accounts). These transfer directly to the new owners without court involvement.
What should I do if I move to Utah from another state with an existing will?
Your out-of-state will is still valid in Utah as long as it was properly made according to your previous state's laws. You don't have to create a completely new will just because you moved. However, it's smart to review your will with someone who knows Utah law because different states have different rules about property and family rights. You should also update practical details like updating your address and changing your executor if they now live far away. This makes things easier for your family when the time comes to use your will.
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