The making of a will is a vitally important act, with far-reaching consequences. Since you cannot take it with you when you die, having a valid will is one of the few ways you can give back to those you love in a proper, legal manner. A properly executed will allows you to specify exactly how you would like your estate handled upon your death, including how and to whom property should be divided, who should watch over your minor children (if any), and who should manage the administration of your estate.

While the rules for making a will vary from state to state, certain formalities must be met. Generally, a will is not valid unless it fulfills the following requirements.

Legal Age

A person must be of legal age to make a will. Most states consider you to have legal capacity if you are 18 years of age or older, have been lawfully married, or are a member of the Utah military.

Testamentary Capacity

In most states, a person has ‘testamentary capacity” if they have a sound mind, meaning the testator must know that he or she is making a will and its effect; understand the nature and extent of the estate; and understand that he or she is disposing of property and assets.

Intent

A person has intent to make a will if at the time of the signing, he or she intends to make a revocable disposition of property in the event of their death.

Voluntary

A will must be voluntarily entered into and signed by the testator. A will executed by a person who was coerced into signing the will, or who signed the will under duress, is not considered to be a valid will.

Proper Disposal of Property

A will must properly dispose of the testator’s property. This includes listing all property and assets and properly distributing them among friends and family according to the testator’s wishes.

Signed, Dated and Witnessed by Two Other Parties

A will can be handwritten on a single piece of paper or elaborately typed within multiple pages, depending on the size of the estate and preference of the testator. It must also be signed and dated by the testator in front of two “disinterested” witnesses, who must also sign. Disinterested witnesses include those who will not personally benefit under the will (like beneficiaries). Because there may be other formalities for making a valid will, it is important that you check the Estate Planning Laws of your particular state. You should also make sure to choose the appropriate legal guardian for your minor children and appoint a trusted executor to tie up your important affairs. You can use one of our state-specific last will and testament forms to help you get started.  Finally, it may be wise to speak with an estate planning attorney in your area to make sure your will is valid.

Requirements for a Will to Be Valid

A will must satisfy three basic requirements to be a legally binding document.

• It must be in writing: Generally, of course, wills are composed on a computer and printed out. (Older ones might have been typed on a typewriter.) It’s possible, however, to have a valid will that is entirely handwritten. Confusion can come when there is a mixture of handwriting and pre-printed language as can happen if someone uses a fill-in-the-blanks form or crosses out language on a computer-printed will. It may be impossible to tell who made the changes or when they were made, and a court is not likely to enforce them.
• The person who made it must have signed and dated it: A will must be signed and dated by the person who made it. If the will-maker wasn’t physically able to sign the document, it is permissible for the will-maker to have directed someone else to sign it, in front of witnesses. It’s also common, but not required, for the will-maker to have signed or initialed each page of the document. Most people sign with pen and ink, but as electronic signatures become more common, they may show up on wills. A small handful of states now allow electronic wills, which are wills kept in electronic form and have electronic signatures. Even without a state law allowing electronic wills, a few courts have allowed them. For example, in Utah, a man created his will on his computer, and then had his two witnesses watch as he added a cursive signature to the on-screen document before printing it out. The court accepted the will. Similarly, Utah court accepted a will that had been signed on a tablet and later printed out.
• Two adult witnesses must have signed it: Witnesses are crucial. They watch the will-maker sign the will, and then sign the document themselves, stating that the will-maker appears to be mentally competent and isn’t being unduly influenced by anyone. In all states, witnesses must be legal adults. The witnesses must be aware that the document is intended to be a will. Many states, but not all, require witnesses to be people who don’t inherit under the will. Some states even preclude beneficiaries’ spouses from serving as witnesses. If an interested person is a witness in a state that doesn’t allow it, then that person won’t be allowed to inherit anything under the will. The other provisions of the will, however, will remain valid.

The Exception to the Rule: Holographic Wills

The one big exception to these basic rules is that in about half the states, a will that was not witnessed, but was entirely handwritten and signed by the will-maker, is valid. It must be clear that the document was intended to be a will. The legal term for this kind of document is a holographic will.

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.

What Happens If I Don’t Have a Will?

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. Utah Code § 75-2-501.

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. Utah does permit handwritten wills but they are usually not a good idea.

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. Utah Code § 75-2-502.

Although Utah law allows “interested” people to witness your will who stand to inherit from it (Utah Code § 75-2-505), 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. Utah Code § 75-2-502.

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. Utah Code § 75-2-504. 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?

Yes. 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. In Utah, you may usually revoke or change your will at any time unless you signed a contract not to revise your will. Utah Code § 75-2-514. 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. Utah Code § 75-2-507.

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. Utah Code § 75-2-804. If you have any concerns about the effects of divorce on your will, see an estate planning attorney 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 (see above).

Do I Need A Lawyer Or Notary To Make A Will?

When it comes to estate planning, some people turn to lawyers in search of legal advice. Identical, self-made or computer-generated documents that follow the provincial requirements are just as legal as those prepared by a lawyer. However, there are some different scenarios where you may benefit from advice on a complicated matter (i.e. what to consider when dealing with foreign property, if you have a blended family, you are under legal obligation to pay support, etc.) and might need customized language beyond what is typically standard in estate planning.

Some people liken it to doing your taxes. If you have a straightforward return to file, you can choose to use:

• Tax forms provided by your provincial government to mail in yourself
• Free or paid tax software you can do your own taxes and digitally file yourself
• Visit an accountant or tax specialist to have them file on your behalf

While each method is valid, each option depends on the needs, concerns, and comfort level of the individual. The majority of people will not need to seek a tax specialist, which is similar to those who need a will and other estate planning documents like power of attorney for property and personal care. If you require legal advice, you can visit an estate lawyer. However, this will require you to pay legal fees. The legality of a will is based on the final document and correct witnessing and signing, not on who prepared it.