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Can I Exclude My Spouse From My Will In Utah?

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Utah does not have a state inheritance or estate tax. However, there is still a federal estate tax that applies to estates above a certain value. And like all states, Utah has its own unique rules and laws that apply to various aspects of the estate planning process. Note, though, that estate planning is a complicated process, and many people choose to work with a professional. Whether you’re planning your own estate or deciding how to invest your inheritance, it’s a good idea to find a financial advisor in your area who can help.

Utah does not collect an estate tax or an inheritance tax. However, state residents must remember to take into account the federal estate tax if their estate or the estate they are inheriting is worth more than $12.06 million in 2022 ($24.12 million for couples). And if you inherit property from another state, that state may have an estate tax that applies. You may also have to file some taxes on behalf of the deceased.

When you die, there are many federal and estate tax situations that need to become a priority for those who survive you. Besides the state estate tax, you need to look out for the following:

  • Final individual federal and state income tax returns. The federal and state tax returns are due by Tax Day of the year following the individual’s death
  • Federal estate/trust income tax return. Due by April 15 of the year following the individual’s death
  • Federal estate tax return. Due nine months after the individual’s death, though an automatic six-month extension is available if asked for prior to the conclusion of the nine-month period
  • This is required only of individual estates that exceed a gross asset and prior taxable gift value of $12.06 million ($24.12 million for couples). The IRS requires each estate to have its own employer identification number (EIN) to represent itself in any tax-related matters. To apply for an EIN, visit the IRS website or apply by fax or mail.

Dying with a Will in Utah

There are some basic requirements to make a will legitimate in Utah. For starters, you must sign or acknowledge your will in front of two witnesses, and the witnesses must sign your will within a reasonable time after you signed or acknowledged it. You do not need to notarize your will to make it legal. However, you can make your will “self-proving” and you’ll need to go to a notary if you want to do that. Self-proving speeds up probate because the court can accept the will without contacting the witnesses who signed it. You can make your will self-proving by going to a notary and having your witnesses go to the notary and sign an affidavit that states who you are and that each of you knew you were signing the will.

If the will is determined to be valid, the next step is the probate process. Utah is one of the states with the Uniform Probate Code, which means there’s a standard set of rules that applies to Utah and other states. Probate proceedings are usually only required if the deceased person owned any assets in their name only. Other assets, also known as “non-probate” property, can generally be transferred to the other owner without probate. Probate is also when creditors of the decedent make their claims for repayment.

Utah offers simplified probate procedures for smaller estates. Inheritors can skip probate completely if the value of the entire estate, after liens and encumbrances are subtracted, is worth $100,000 or less. All an heir has to do is prepare a short affidavit which states that they are entitled to a certain asset. The affidavit is signed under oath. When the person or institution holding the asset gets the affidavit and a copy of the death certificate, it releases the asset to the inheritor. This procedure can also be used to transfer up to four boats, motor vehicles, trailers or semi-trailers if the value of estate subject to probate, except for the value of the aforementioned vehicles, is $100,000 or less. There is a 30-day waiting period.

There is another simplified probate procedure for smaller estates. You can use this process if the value of the entire estate, after liens and encumbrances are subtracted, does not exceed the homestead allowance, exempt property, family allowance, costs of administration, reasonable funeral expenses, and reasonable medical expenses of the last illness. The executor must file a written request with the local probate court asking to use the simplified process. They must also file a sworn statement that says the estate financially qualifies for this simplified probate process and describes the estate assets. The sworn statement musts also declare that the executor has distributed assets to the inheritors, and sent the inheritors and known creditors a closing statement. If the affidavit procedure is used, there’s no need to use the simplified probate procedure.

 

Dying Without a Will in Utah

Dying without a will isn’t ideal if you care about estate planning, or deciding where your assets will end up after your death. Utah inheritance law labels these types of estates “intestate,” which means there is no valid will. The court then follows intestate succession laws to determine who inherits your property and how much of it they get. If there isn’t a will, the probate court will appoint a personal representative to take care of the estate of the decedent.

Although there are usually extenuating factors when someone dies intestate, it’s best to avoid putting your loved ones through that kind of stress if possible. If you’re not sure what kind of estate plan you want to make, you can seek the help of a financial advisor specializing in legacy planning.

Spouses in Utah Inheritance Law

If you die intestate in Utah, which is an equitable distribution state, and leave a surviving spouse, your spouse’s inheritance depends on whether or not you have living descendants. Descendants can be children, grandchildren, or great-grandchildren. Your spouse will inherit all of your intestate property if you die without descendants, or if all surviving descendants are from you and your surviving spouse. If you have a spouse and no descendants, your spouse will inherit everything.

Children in Utah Inheritance Law

If you die intestate in Utah, your children will receive an “intestate share” of your property. How much each child inherits depends on how many children you have, whether or not you are married and whether your spouse is also your children’s parent. If you have descendants who are not the descendants of your surviving spouse, such as children or grandchildren from another relationship, they will get some of the intestate property. Your spouse will inherit the first $75,000 of your intestate property, and half of what remains of your intestate property after that. Your descendants will then inherit everything else.

In Utah, the value of non-probate transfers count as part of the intestate estate. That means the non-probate transfer is legally considered an “advancement,” which means that its value will be deducted from the intestate share of the beneficiary. If the amount of the advancement exceeds what the beneficiary is entitled to under intestate succession laws, the beneficiary will not have to pay anything back, but will not inherit anything more.

Non-Probate Utah Inheritances

Since probate process can be difficult and expensive, you’ll want to know about the non-probate options you have in Utah. Listed below are some of the assets that will not have to go through probate and instead go directly to the beneficiaries. However, keep in mind that in Utah, non-probate transfers are considered to be advancements on a relative’s share of the estate. If you don’t account for this in a valid will, your property may not end up being distributed the way you intended it to.

  • Any property in a living trust
  • Life insurance policies
  • 401(k)s, IRAs, other retirement accounts
  • Securities in transfer-on-death accounts
  • Pay-on-death bank accounts
  • Real estate held by a transfer-on-death deed or beneficiary deed
  • Joint tenancy real property

Only assets that would have passed through your will are affected by intestate succession laws. Usually, that includes only assets that you own alone, in your own name. Many valuable assets don’t go through your will and aren’t affected by intestate succession laws. Here are some examples:

  • property you’ve transferred to a living trust
  • life insurance proceeds
  • funds in an IRA, 401(k), or other retirement account
  • securities held in a transfer-on-death account
  • real estate held by a transfer-on-death or beneficiary deed
  • payable-on-death bank accounts, or
  • property you own with someone else in joint tenancy.

These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will.

Other Utah Intestate Succession Rules

Here are a few other things to know about Utah’s intestacy laws.

  • Survivorship period. To inherit under Utah’s intestate succession statutes, a person must outlive you by 120 hours. So, if you and your brother are in a car accident and he dies a few hours after you do, his estate would not receive any of your property.
  • Half-relatives. “Half” relatives inherit as if they were “whole.” That is, your sister with whom you share a father, but not a mother, has the same right to your property as she would if you had both parents in common.
  • Posthumous relatives. Relatives conceived before but born after you die inherit as if they had been born while you were alive, as long as they survive at least 120 hours after birth.
  • Immigration status. Relatives entitled to an intestate share of your property will inherit whether or not they are citizens or legally in the United States.
  • Utah considers non-probate transfers as advancements on a relative’s share. So, if your spouse receives life insurance proceeds or funds from a payable on death account, these amounts are included when calculating your spouse’s share. Additionally, if you make a gift during your lifetime to your relative and put in writing that this should be an advancement at the time of making the gift or your relative states this in writing, the value of the property is subtracted from your relative’s share.

What Can I Do With a Utah Will?

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.

What Are the Requirements for Making and Signing Wills Utah?

To make a will in Utah, you must be:

  • an individual 18 years of age or older, and
  • of sound mind.

You must make your will on hard copy. That is, it must be on actual paper. It cannot be on an audio, video, or any other digital file. Type and print your will using a computer, or you can use a typewriter.

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.

Although Utah law allows “interested” people to witness your will who stand to inherit from it, it’s generally best to only use “disinterested” witnesses to avoid claims of undue influence. For holographic wills, you do not need witnesses, but your signature and all material portions of the will must be in your own handwriting.

Do I Need to Have My Will Notarized?

No, in Utah, you do not need to notarize your will to make it legal. 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.

Should My Will Name a Personal Representative?

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. Ascent Law Attorneys produces a letter to your personal representative that generally explains what the job requires. If you don’t name a personal representative, the probate court will appoint someone to take on the job of winding up your estate.

Can I Revoke or Change My Will?

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 Utah 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.

 

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