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What is a Will?
will is a written document with important legal relevance.   A proper will permits you to do the following:

1.  Identify who will receive part of your estate.

2.  Identify your intended personal representative.  Once called an executor or executrix , this is the person or entity you desire to manage your estate after your passing – and provide for one or more alternates, in case of death or refusal of the role by the nominee.

3.  Nominate a guardian or guardians for your minor children (in the absence of a living parent).

4.  Create other instructions or limitations on the distribution of your estate or for the care of your children or heirs in particular situations.  This could even include the creation of a trust.

Anyone of "sound mind" (someone who can understand and appreciate their estate and actions in making the Will) and at least eighteen (18) years old can make a will (U.C.A. § 75-2-501).  Generally, to have a valid will, Utah law requires the witnessing signatures of two people not related to the testator and who will not be beneficiaries under the will (a holographic will is one notable exception). 

Any document entirely in your own handwriting, which clearly indicates that it is your will, is signed by you (and, preferably, dated) can be recognized as a valid will in the State of Utah.  Such a document is frequently referred to as a holographic will.  Some states do not recognize holographic wills.  This may present a major problem if you move your residence outside Utah or if you own property outside of Utah.  If the will is not entirely in your own handwriting, then it must be executed in accordance with certain formalities in order to be a valid will.

self-proved will simply means a will which has been signed and notarized in accordance with the requirements of Utah law.  A self-proved will doesn't need a witness to prove its authenticity in court probate proceedings.  This generally means that its manner of execution cannot be contested in legal proceedings.

Generally, anyone age eighteen (18) or over with any assets, a spouse, or minor children should have a will.

If you die without a will, you are considered to have died intestate.  Understanding how to distribute the assets of a deceased person is so important that, if you die without a will, the State of Utah, like most other states, has drafted one for you.  This is called an Intestacy Statute and determines how the State thinks your assets should be distributed.

Under the Utah Intestacy Statute, if you are married but do not leave a valid will, your spouse will inherit all of your estate.  The one exception is if you have children from a previous marriage.  In that case, your spouse generally receives the first $50,000.00 of your estate after the payment of debts and taxes.  Thereafter, generally one-half (1/2) of your estate will go to your spouse and one-half to your child or children, subject to provisions for homestead allowance, family allowance and exempt property.  If you don't have a spouse or children, the intestacy statute will determine your heirs for you.  If you don't like the idea of letting the State make the decisions for you, you need to have a will.  Otherwise, this formula will generally be applied to the distribution of your estate.  This formula will be changed where you own property in joint tenancy, where beneficiaries of certain assets are designated, where property is properly included and titled in the name of a trust, or in some other circumstances.  If you have children other than with your spouse, it is highly recommended that you have a will.  This recommendation for a will remains true even if all of your property is jointly held with your spouse where you have children other than with your present spouse.

1.  Guardians Selected May Be Undesired.  If both parents die leaving minor children, then the court will appoint a guardian based on the court's decision as to who will act "in the best interests of the minor."  U.C.A. § 75-5-206(1).  The court's selection may not match up with that which the parents might have made.

2.  Personal Representative Selected May Be Undesired and a Formal Opening May be Required.  Pursuant to U.C.A. § 75-3-203(3), if more than one person has equal priority (such as decedent's children), all such persons will serve as co-personal representatives except for those who renounce their right or who fail to object to the appointment of a personal representative.  Furthermore, pursuant to U.C.A. § 75-3-203(3), "When two or more persons share a priority, those of them who do not renounce must concur in nominating another to act for them or in applying for appointment in informal proceedings."

3.  Estate May Be Distributed In Undesired Manner.

4.  Minors Inherit at Age 18.  Minor heirs will receive a full distribution of their inheritance at age 18.  (U.C.A. §§ 75-5-210 -- guardianship terminates at age of majority -- and 75-5-425(4) -- conservator of a non-disabled minor must distribute inheritance upon majority.

5.  Distributions to Minors May Require a Formal Guardianship or Conservatorship.  A distribution of over $10,000 per year to a minor may require filing a formal conservatorship or guardianship.  See U.C.A. §§ 75-5-102, 75-5-423.

6.  Greater Likelihood of Family Disputes.  The client's failure to decide how his estate is distributed or who serves as personal representative increases the possibility of disputes among family members over control and distribution of the estate.

7.  Titled Property Must Be Probated Prior to Distribution.

8.  Increased Settlement Costs.  Greater costs of settling the estate, particularly if disputed.

An attorney is not required to draft a will.  That said, there are significant reasons for you to use an attorney.  The use of an attorney is generally not very expensive for a will and can help with the following concerns:

1.  Assuring the will is valid (complies with Utah law).

2.  Avoiding language which is confusing or ambiguous.

3.  Identifying areas of estate planning concern which might be overlooked by the client (including some tax concerns).

4.  Reducing the likelihood of contest (challenge) to the will on various grounds (fraud, forgery, undue influence, etc.).

The cost of a will varies — complicated family situations, tax planning, or lengthy instructions and/or limitations in a will do increase costs.  The extra funds incurred for this additional help should be outweighed by the benefits obtained by this counsel and assistance.  If you elect not to use counsel in drafting your will, your document, at least, should:

1.  Specifically identify itself as a will.

2.  Specifically identify itself as your will and contain a date of execution and an original signature.

3.  Be signed by at least two (2) individuals who sign only after witnessing either the signing of the will or the testator's acknowledgment of the will.

4.  Specifically revoke all prior wills and codicils.  This is important to do even if there were none.

5.  Appoint a personal representative (and at least one alternate) to handle your estate.

6.  Indicate that you permit your appointed personal representative to serve without bond (if you are willing).

7.  Address how your estate is to be distributed (specific enough for the personal representative to easily follow).

8.  Include specific gifts to specific individuals or entities, if any.

9.  Appoint a guardian or guardians where minor children are involved, and at least one alternate.

10.  Include other specific directions, such as directions about your wishes for care of your body (as permitted by your state), funeral and burial arrangements, and even preferences regarding an obituary.

Revocation (cancellation) of a will is a fairly simple process and can occur at any time during your life.  It can be done in writing specifying the will which is being revoked and, ideally, this document should be signed, witnessed, and notarized (like with a self-proving will).  Alternatively, destruction of the will should accomplish the same objective.  There may be a problem, however, if there are copies of your will still in existence and your heirs could argue that the original is simply lost and a copy should be accepted by the court.  All copies should be fully destroyed to ensure that any such will is revoked (preferably in front of witnesses who can testify the destruction was intentional).

Modification (changing or reformation) of a will also can be done at any time during your life.  These changes should be done in writing, specifying the will which is being modified and, ideally, this document should be signed, witnessed, and notarized (like with a self-proving will).  Such a modifying document is called a codicil and, as a supplement to your will, should be kept with your will.

If the only changes you wish to make to your will are about who will receive items of personal property (furniture, rugs, artwork, instruments, jewelry, sports equipment, etc.), this can be done on separate written document made part of the will.  To make it work, it will need to be either signed by you or in your own handwriting.  A separate writing can be used for this purpose and can be changed or replaced as often as you wish provided that (1) it is in your own handwriting or is signed by you; (2) it describes the property and who is to receive it; and (3) it can be identified as a writing that you intended for use with your will.  Such a writing should also be dated.

Jon H. Rogers, Attorney at Law * 825 North 300 West, Suite N144 * Northgate Park Business Center * Salt Lake City * Utah * 84103 Phone: (801) 532-6272 Fax: (801) 532-4192