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FAQs On Wills And Succession Law In Utah

Estate planning is important, but there are many misconceptions about how wills and other estate planning documents work. Don’t let unfamiliarity stop you from properly planning your estate.  Most people understand the necessity of having a last will. Even if you’re young and just starting out, you have some assets, so it’s important to have a last will. As you acquire more assets or start a family, the importance of having a will grows. Financial and legal experts recommend basic estate planning for everyone, but there are many misconceptions about how wills and other estate planning documents work. Don’t let unfamiliarity stop you from properly planning your estate. Here are some frequently asked questions and their answers to better acquaint you with the estate planning process.


What Happens If A Person Dies Without A Last Will?

When a person passes away without a last will, the person’s assets are probated or passed through the courts for distribution according to the laws of intestacy. In other words, the deceased person’s assets will be distributed according to the laws of the state—not necessarily according to the deceased’s wishes. The laws of each state vary, but the money and other assets typically pass to the spouse first. For example, in Utah all the property acquired during the marriage passes completely to the spouse. Any property acquired before the marriage or inherited is split between the spouse and any children. If a person dies without a living spouse, the estate passes to the children, if any, equally. If there are no children and no spouse, but living parents, the estate passes to the parents. Generally, the state will attempt to find any living relatives and pass the estate to them. In the event that there are no blood relatives, the estate passes entirely to the state.


What Happens After Someone Who Has A Last Will Passes Away?

The probate court disposes of the assets in accordance with the last will and the law.


Does A Person Have To Have A Minimum Amount Of Assets To Create A Last Will?

No—a person can create a last will to dispose of assets worth $10 or $10 million. Of course, the distribution of those assets can have tax implications. For that reason, it is important that you understand how inheritance will be taxed as you make your estate planning decisions. It is often wise to consult with estate planning professionals, especially for large or complicated estates.


What Is The Difference Between A Living Will And A Last Will?

The basic difference is that a last will is used to dispose of assets after death. A living will can be used to provide health care instructions in advance, such as whether or not life support is desired.


What Are The Main Benefits Of A Living Trust Vs. A Last Will?

A last will’s main benefit is its simplicity. Anyone can write a last will. The drawback is that your family members may have to wait months or even years until your property goes through the courts and is distributed. A living trust, on the other hand, can be used to transfer property and assets to beneficiaries without going through the probate process. This can save years of time and thousands in fees. Also, it keeps your estate private, whereas a last will, once probated, will become public record. People often use a last will and a living trust together. A last will can be used in conjunction with a living trust to name guardians for minors and express final wishes not otherwise captured in a living trust.


How Do I Decide What’s Best For Me?

As you can see, wills are not necessarily complicated. They are actually among the simplest legal documents. Whether or not a will is wholly adequate for your estate planning needs depends on your individual circumstances. If you’re unsure what you need to protect your family, consult a lawyer. The most important thing is that you don’t neglect planning your estate. It’s the best way to protect your loved ones and make sure your assets are distributed according to your wishes.


What Is The Purpose Of Preparing A Will?

A will is a legally binding document that identifies who should inherit a person’s property after they die. Recipients often include a spouse, children, grandchildren or a charitable organization. Many wills also contain a provision that names a guardian to care for minor children. A person that makes a will is called a testator.


What Happens To My Property And My Children If I Die Without Preparing A Will?

If a person dies without a will or another legal distribution device, a state’s laws of intestate succession govern inheritance rights. Typically, a spouse (or in some states a domestic partner) and children are first in line to inherit a decedent’s property. If the deceased did not have a spouse or children, close relatives like parents, siblings, and grandparents will inherit the property. If the decedent has no relatives that qualify under a state’s intestate succession laws, the state receives the property. If a parent of minor children dies without a will and the other parent is unable to provide care, the state determines who will become the guardian of the children and the property they inherit.


Do I Need A Lawyer To Create A Valid Will?

No. State laws do not require the assistance of a lawyer when preparing a will. Because most wills only require instructions for the distribution of property and the naming of a guardian for minor children, most people can create a simple will by using software, ready-made forms, or instructions from a book.


Can I Make A Handwritten Will?

It depends on whether a state’s law recognizes a handwritten will. In about half of the states, a person may create a handwritten will, also called a “holographic” will. Unlike typed and computer-printed wills, witnesses are unnecessary for holographic wills. Some states require that the testator handwrite the entire holographic will, including the provisions, the date, and the signature. Other states are more lenient the testator may use a fill-in-the-blank document if it contains handwritten portions, a signature, and a date. Handwritten wills, however, may create complications. Many probate courts are hesitant to recognize the validity of these wills since they are difficult to verify.


How Do I Make A Will Valid?

When preparing a will, most states require the following elements:

  • The testator is at least 18 years old and of sound mind;
  • The inclusion of a statement that the document is the testator’s will;
  • The will is typed or computer-printed, except in the case of a handwritten will;
  • The will must have at least one provision that disposes of property or a provision that appoints a guardian for minor children;
  • The appointment of an executor; and
  • The testator and at least two witnesses signed the will.

The testator should adhere to the following guidelines when signing a will and selecting witnesses:

  • The testator must sign and date the end of a typed or computer-printed will in ink;
  • The signature should match the name that appears in the will;
  • The witnesses must see the testator sign the will;
  • The witnesses must also sign the will;
  • The witnesses should be at least 18 years old; and
  • The witnesses must not be beneficiaries in the will.


Can I Name A Guardian For My Children In My Will?

Yes. A will can name a “personal guardian” to care for minor children if both parents are deceased or if the surviving parent is unable to care for the children. The personal guardian will have legal guardianship over the minor children until they reach the age of 18.


Can I Disinherit My Spouse?

In community property states, a spouse is legally entitled to half of the property acquired or earned during the marriage. While a married person may leave their half of the community property to someone other than their spouse, they may not dispose of the spouse’s share of the community property. In states where common law governs inheritance laws, a person may choose to disinherit a spouse through a will. However, common law states protect the surviving spouse from complete disinheritance by granting the right of the spouse to claim some portion of the deceased spouse’s property by going to court.


How Do I Revise My Will?

A testator can change a will by preparing a new will or by adding an addition called a codicil. When changes are substantive, revoking a will and starting over may be easier. An express statement in the new will of the revocation of all prior wills legally revokes a will. Minor changes, such as the addition of a new provision or the removal of a beneficiary, are appropriate changes for a codicil.


What Happens If I Do Not Have A Will?

When a person dies without making a Will (intestate) strict rules come into operation dealing with who may act as the personal representative (the person responsible for administering the estate including obtaining valuations, paying any tax and distributing the estate) and who will be entitled to receive the assets you own.

  • It is not automatically the case that your husband, wife or civil partner will receive all of your assets. This could leave them in serious financial difficulties.
  • Claims by other beneficiaries entitled under the intestacy rules may mean that the family home will have to be sold.
  • Unmarried parties will receive nothing and potentially distant relatives or even the government will inherit your estate.
  • Tax saving measures will not have been undertaken.

As a business owner there could be many obstacles in enabling the business to continue to be run as you would want.


The Intestacy Rules

  • If you die leaving a husband, wife or civil partner and children then your spouse or civil partner is entitled to all of your personal effects and belongings and a lump sum of money. The balance of the estate is then divided equally between your children and your surviving spouse or civil partner.
  • If you die leaving a spouse or civil partner and no children then your spouse or civil partner will receive the whole estate.
  • If you do not have a spouse or civil partner or any children the estate is divided between (in order) your parents, brothers and sisters, nieces and nephews, grandparents, uncles, aunts or certain cousins but if there are no relations who fall into these categories then ultimately the estate will pass to the government.


How Can These Rules Affect Me?

  • As your children are potential beneficiaries under the intestacy rules they would be entitled to that share in the estate at 18. Many people are concerned that this is too young an age to handle potentially large sums of money.
  • As well as the potential for certain relatives who you may not get on with to receive assets from your estate, by not making a Will any one of your relatives in the categories mentioned could apply for a Grant of Representation (known as a Grant of Letters of Administration). This is an important consideration as the role of a personal representative is important and enables them to deal with your assets. By making a Will you decide who that person should be.
  • The share of the estate that is set aside when you die leaving a spouse or civil partner and children may not be sufficient for your spouse or civil partner to live on and the net effect of this may mean that your home has to be sold for that person to make ends meet.


Why Should A Solicitor Draft My Will?

The language of Wills can be confusing as it is formed on historical precedents. Whilst Wills can be bought “off the shelf” we have seen that on occasion these result in difficulties for those intended to benefit.  Examples include failing to ensure that the Will is properly executed, and failing to appoint an executor to administer the estate.  These problems can result in additional expense in trying to obtain the Grant of Probate.

In comparison, solicitors’ belong to a regulated profession and are insured in the rare case of something going wrong. Solicitors can also hold the original or a copy of a Will, ensuring that it can be safely kept and easily located. A poorly drafted Will can result in additional and unnecessary expense and potential disputes among beneficiaries. A professionally drafted Will should be seen as the right safeguard for your family’s future, while providing you with peace of mind.


What is involved in making a Will?

  • As part of the process in making a Will you should consider:
  • The identity of the people you would like to be the executors of your Will to will ensure that your wishes are carried out.
  • This can be someone who you also want to be a beneficiary. If there any beneficiaries who are children you will need two people to act in this role.
  • Professional executors are often used because they have the experience in dealing with potentially complex estates or those that may involve possible disputes between beneficiaries. Ascent Law Firm regularly acts in this capacity providing a reliable, professional and cost effective service.
  • If you have any specific funeral wishes, including a desire to donate your body to medical science, this can be included in the Will.
  • Who you would like to act as guardians for any infant children so that they will make decisions regarding their upbringing, education and general welfare.
  • Whether there are any personal possessions you would like to leave to specific beneficiaries.
  • Whether you want to make any cash gifts to any individuals or charities.
  • How the rest of your estate is to be left, for example, to your spouse or civil partner and then your children.
  • You should consider what you would like to happen to your estate in the unlikely event that you, your spouse/civil partner and any children were to die in an accident together.
  • What happens to any land or property you own and how it is described on the title documents as this may have a bearing on any wishes you want to make specifically regarding that property.
  • Whether you want to exclude anyone who would normally be provided for in your Will?


What If I Want To Exclude Someone From My Will?

In making a Will you are entitled to leave your Estate to whomever you want, but certain legislation can restrict these wishes. The Inheritance (Provision for Family and Dependents) Act 1975 allows certain specified groups of people to claim against an estate if it is deemed that the Will has not made reasonable financial provision for them.

The categories are:-

  • The deceased’s spouse/civil partner.
  • The deceased’s former spouse who has not remarried or civil partner who has not married or entered into a new civil partnership.
  • Anyone who immediately before the death of the person whose Will is in dispute was during a period of two years prior to that date living in the same household as the deceased as a spouse or civil partner.
  • Any son or daughter.
  • Any person who has been treated by the deceased as a child of the family.
  • Anyone else for whom the deceased has been making a substantial contribution for their maintenance to the date of death.


What Happens If A Claim Is Successful?

The court has the power to set aside a Will and make such provision for the person making the claim as it considers reasonable. The courts have taken a general view that adult children who were not financially dependent upon the deceased prior to the date of death should not necessarily receive any benefit from an estate where they have been excluded, but each case will turn on its own facts and consideration perhaps should be given to making a gift to such a beneficiary but if not then it is always advisable to make a separate statement which can be used as evidence should a claim be made setting out the reasons why, for example, an adult child has been excluded as a beneficiary.


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