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What Makes A Will Legal?

What Makes A Will Legal

Above all else, you must ensure your will is legal so that your wishes are fulfilled. Scores of deceased persons, if possible, regret the fact that their wills are rendered unusable because of breaching the legal requirements. It is, therefore, important to understand how and when to draft a will so that it becomes legally binding.

Utah Code  75-2-501

Whether you are in your 80s or in your 20s, the Utah Code  75-2-501 is an a must read. I guess it is in your best of interests to know how your property will be distributed in the event that you pass on. And these days death is so common, you simply cannot tell when you will leave this world.

Unlike in the past when the main threat was diseases, the world today exposes you to a myriad of causes of death, including but not limited to accidents, poisoning, stroke, cold murder, depression and suicide.

Whichever way you leave this earth, I’m sure it is in your best of interests to ensure your hard-earned wealth goes to at least your spouse and kids. Imagine how awful it can be when your lifetime savings are distributed to persons you never intended?

As a man or woman, you definitely have different goals for your spouse and children. You know them well and you are in a position to assign them different property in a way which you suppose will be of great benefit to them. Your first kid may do pretty well with a land inheritance, whereas your last kid may thrive with a house inheritance. Maybe your spouse will be the best manager of your series of businesses. 

That is the reality of the matter. If you die in Utah without having written a will, the court will distribute your property using the intestacy laws. In most cases, the intestacy laws stipulate that your property should be distributed to the surviving spouse and the kids. In case the spouse is also gone, the kids will fall heir to your estate. If the children do not exist, the property will then be distributed to the extended family members. The list goes on and on. 

Utah Code 75-2-501 gives you a list of all the legal requirements you need to fulfill while writing your will. This is also exactly what I am about to outline here, with in-depth interpretation from a lawyer’s perspective. Of course, we shall start with the basics and move step by step to the deeper issues.

Utah Will requirements

As earlier advised, there are a number of legal requirements that must be met for a will to be valid in Utah. The requirements concern both the testator and the will itself. The testator is the person making the will. Before outlining the legal requirements regarding the testator and the will itself, it is worth to note the 4 main functions of a will.

You can write a will for the following four reasons:

  1. To leave your possessions to specific persons or organizations
  2. To specify who will raise your minor children when you pass on
  3. To specify someone to oversee your possessions on behalf of your minor children
  4. To specify someone to see to it that your wishes are fulfilled as written in the will.

Testator requirements

I will quote the law:

“The testator must be an individual 18 or more years of age who is of sound mind may make a will. Utah Code § 75-2-501.”

A person of a sound mind is one who knows what he is actually doing when drafting the will. At the time of making the will, you must be aware that you are expressing your wish on what person should inherit the property you have when you pass on – needless to say that you must exactly know what property you own.

A person who succumbs to Alzheimer’s disease may have been of sound mind a few years before the last breath when he was writing the will. Some health conditions can however compromise the ability of an individual to make the right judgement. In such cases, we say that the testator is not of sound mind, and therefore the will may not hold.

When signing a will in such conditions, doubt may later arise as to whether you were really in a sound mind. The best way to handle this is getting a confirmatory letter from the doctor to verify your right state of mind.

Will requirements

The second clause of the Utah last will and testament code states that the will must be in writing. I have personally been involved in cases where the kids of a certain couple got into a heated debate since their mom only expressed her wishes regarding her vast property verbally. Looking at it, it is true that the mother said such and such land belongs to such and such a kid – but the disgruntled kid who felt the allotment was unfair fiercely challenged the verbal will, claiming that she never wrote it anywhere, and therefore it is null and void.

Verbal wills can also be referred to as oral wills or nuncupative wills. Simply avoid such uncalled for battles by writing out your will. Consider also the second statement in the clause:

Witnesses to the will

“A will shall be signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction.”

It is absolutely great if you can sign the will yourself. In case you are unable, for one reason or another, say because of amputated fingers or hands, you may want to request someone else to sign the will on your behalf. Just purpose to be present when they are doing so. Confirm the contents of the will before approving for signature.

The last statement in this clause states:

“A will shall be signed by at least two individuals, each of whom signed within a reasonable time after he witnessed either the signing of the will as described in Subsection (1)(b) or the testator’s acknowledgment of that signature or acknowledgment of the will.”

In other words, it is a requirement to sign your will in the presence of 2 witnesses. Each witness must be present as the testator is signing the will. The witness must append his signature within a reasonable time after the testator signs the will. Consider this scenario: the witness signs the will 30 years after you acknowledge the contents of the will. Is this signature valid? What does the law say about this?

Utah law advises that the witness should not be a beneficiary of the will. In this sense, it is not appropriate to use your kid as a witness if part of the estate is allocated to him. Even so, if you choose to use a witness who doubles up as a beneficiary, the will still remains valid.

Interested persons

This leads us to define an “interested person” – this refers to those individuals who have a right to some given property or a claim against a trust estate. The most common “interested persons” as regards property in Utah include devisees, children, spouses, creditors, businesses, trusts, and other beneficiaries.

The “interested persons” have a right to do the following:

  1. Receive notifications on the status of the property
  2. Dispute any decision concerning the property they feel is inappropriate
  3. File petitions, motions and applications related to the property in question
  4. Make claims against the property in the estate
  5. Object the choice of the personal representative
  6. Request the overseer of the last will to present it for probate

Personal Representative

I have mentioned above that the testator may choose to appoint a personal representative to see to it that his wishes are fulfilled as written in the will. By definition, a personal representative is any individual who is selected by the testator or appointed by the court to administer the estate and execute the will. Other terms commonly used for the personal representative include administrator and executor. This individual acts on behalf of the deceased.

As you would expect, the personal representative must also meet certain legal requirement. First of all, the law states that he or she must have a minimum age of 21 years. Secondly, he must be fit to serve. Fitness here is qualified in two ways. First, the personal representative must be of a sound mind. Secondly, the personal representative must not have conflicts with the beneficiaries of the estate. This will definitely make him biased in his administering roles.

Sometimes the testator may pass on without having appointed a preferred representative. In such cases, a number of qualified persons may express the interest to act as administrators of the estate. The following order of preference will be considered in appointing the correct administrator:

  1. The executor proposed in the probated will
  2. The spouse left behind by the deceased
  3. Other heirs of the deceased
  4. Any creditor, in case no other individual is appointed within 45 days after the death of the testator.

At this juncture, you may be asking yourself – Can an estate be administered by two or more personal representatives at the same time?

Depending on the situation at hand, the court may choose to appoint two or more administrators for the estate of the deceased. You can call them “joint personal representatives”. It does help when the property to be managed is too vast for one representative.

Duties of the personal representative

The personal representative chosen to administer the estate has the following rights and duties in relation to the estate of the deceased:

  1. Control access to the property in question
  2. Prepare an evaluation of property owned by the deceased before he passed on and disseminate it to whoever asks for it
  3. Give an account of all financial concerns of the probate to the interested persons upon their request
  4. File all taxes connected to the estate
  5. Notify any unknown creditors of anything concerning the estate
  6. Pay out all claims against the property of the deceased
  7. Specify what portion of the property should go to each heir
  8. Divide the property among the heirs
  9. Bring to an end the probate of the estate. This may be done through an affidavit or court order

Having understood these basics, let us now dissect the case of holographic wills.

Holographic will

In the most basic terms, this is a handwritten will. Utah law allows this. It is not absolutely necessary to fill the standard will forms. For some reason, some individuals just prefer to write out their will in their own handwriting. The downside of this is that you are likely to omit one or two mandatory items, and this will render the will invalid.

Intestate wills

You may have written a will in another state, say Illinois, but then your life comes to an end in Utah, probably after staying here for a couple of years. Utah will consider whether your will followed the laws of the state in which you drafted it. If so, they will go ahead and execute the will. 

Exceptions to the ability to distribute property

As earlier mentioned, the testator must exactly know what property he is distributing. Not all property can be distributed according to the wishes expressed in the will. Let us list some of them.

  • Property that is jointly owned and has a defined right of survivorship.
  • Elective share – that is the proportion of the estate that the surviving spouse can claim in place of their inheritance
  • House allowance for surviving spouse, or for the dependent children in case the spouse is not there.
  • Family allowance for surviving spouse and dependent children.
  • Exempt property of a value up to $10,000 for the surviving spouse, or for the kids in case the spouse is also gone.
  • Share to a child that is born or adopted into the family after the execution of the will.

I hope you are now well equipped to understand a will legally. It is not mandatory, but advisable that you seek the assistance of an experience estate planning attorney in Utah.

Will Lawyer Free Consultation

When you need legal help with a will, trust, estate plan or other legal document, please call Ascent Law for your free consultation at (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506