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 is 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 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 have signed within a reasonable time after witnessing the signing of the will or the testator’s acknowledgement 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.