Le Knapp: What Constitutes A Legal Will?

A last will and testament is an important step in planning the distribution of your estate (real and personal property) upon your death. Utah wills permit the testator, the person writing the will, to provide for a spouse, children, other loved ones, and pets after his death as well as to name a personal representative for the estate. Not to be confused with a will, a Utah living will, or health care directive, provides instructions should you become incapacitated and incapable of making decisions regarding your medical care. Although a last will and testament is not legally required, without a will, state laws (called laws of intestacy) determine the distribution of an estate’s assets. Because the outcome may not coincide with the decedents (the person who passed away) wishes, it is generally advisable to create a last will and testament. In addition to providing the opportunity to direct asset distribution, a Utah last will and testament also allows the testator to make a charitable gift, create a trust for any person, name a legal guardian for minor children, or create a pet trust in order to provide for the care of an animal after its owner’s death. The will also allows the testator to nominate a person to oversee the estate and make sure the will is properly handled. This person is called the executor.

Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person. Once a Utah will is proven, the executor can proceed to wrap up the estate, which includes collecting and protecting property, paying off debts, and then distributing assets.
Someone who dies without a will is called “intestate,” which invokes the strict laws of intestacy. In Utah in the absence of a will, a surviving spouse inherits the entire estate even if the decedent shares descendants. If the decedent also has descendants from someone other than the surviving spouse, the surviving spouse inherits the first $75,000 of intestate property plus half the balance, and the descendants inherit the rest. If there is no surviving spouse, descendants, or parents, other relatives, including siblings and grandparents, will inherit depending on the closeness of the relation.

Exceptions to Ability to Distribute Property

Not all property can be distributed according to a will. Some exceptions in Utah include the following:
• Property owned in joint tenancy with right of survivorship
• Elective share of surviving spouse
• Homestead allowance for surviving spouse (or minor or dependent children if no surviving spouse)
• Exempt property of up to $10,000 in value for surviving spouse (or children if no surviving spouse)
• Family allowance for surviving spouse and minor children
• Share to surviving child born or adopted after execution of the will

Form a Last Will in Utah

The basic requirements for a Utah last will and testament include the following:
• Age: The testator must be at least 18 years old.
• Capacity: The testator must be of sound mind.
• Signature: The will must be signed by the testator or by someone else in the testator’s name in his conscious presence, by his direction.
• Witnesses: A Utah will must be signed by at least two witnesses, each of whom have signed within a reasonable time after witnessing the signing of the will or the testator’s acknowledgement of the signature or of the will.
• Writing: A Utah will must be in writing.
• Beneficiaries: A testator can leave property to anyone.
Utah recognizes holographic (handwritten) wills so long as the signature and material portions of the document are in the testator’s handwriting. A Utah will may be changed at any time by codicil, or an amendment to the will, which must be executed in the same way as a will. The revocation of a Utah will can be accomplished by executing a subsequent will or by performing a revocatory act of the will, including “burning, tearing, canceling, obliterating, or destroying,” done by either the testator or by someone else at his direction in his conscious presence with the intent and for the purpose of revoking the will.

What Is A Legal Will?

A will is a testator’s final directive about her property. A valid will effectively disposes of all of the testator’s assets after her death according to her own choices. In order for a will to be valid, the testator must be competent, must intend to make a will and must execute the document according to state law. Absent a valid will, property passes to blood relatives under state intestate distribution laws. All states require that a testator be of sound mind when she makes the will. A testator is of sound mind what courts call “testamentary capacity.” Courts judge testamentary intent at the time the testator signed the will, not a later date. Most states also require that a testator have achieved a certain age, generally 18 years or older, although there are exceptions.

Intent Freely Exercised

Since a will is not effective until after the testator’s death, she cannot answer questions during its probate. Given this, courts require that a testator have “testamentary intent” when she executes a will. This means that the testator must act in contemplation of death and also that she exercise her own intent. The first requirement is met by the testator acknowledging the document as her last will and testament to witnesses as she signs it. Courts presume the existence of the second element, freely exercised intent, absent allegations of undue influence or fraud proved in a will contest.

Signature and Witnesses

Probate laws

require certain formalities during will-signing that are essential to the validity of the will. The precise procedures vary among types of wills and also between jurisdictions. Although some states permit handwritten “holographic” wills or oral “nuncupative” wills in some circumstances, most testators use prepared wills, typed or printed by themselves or someone else. All states require that the testator acknowledge and sign prepared wills before at least two witnesses, who then sign after her. The probate court calls the witnesses to testify that the testator both signed the will and had testamentary intent. In most states, witnesses must be disinterested; that is, they must not receive bequests under the will they are witnessing. A notarized signature cannot substitute for the witness requirement since it does not speak to testamentary intent.

Invalidating a Will

The probate court invalidates a will if evidence establishes failure of testamentary capacity, testamentary intent or proper execution. An improperly executed will is void on its face, as is a revoked will. Revocation can be express or implied at law. If a testator writes a superseding will, it automatically revokes the earlier will; this is an express revocation. In some states, marriage, divorce or the birth of a child occurring after a will is written automatically revokes the will; the revocation is implied at law.

The Elements Of A Will

Legal wills must be in writing. Only about 25 states recognize handwritten, or holographic, wills. Holographic wills must be written and signed in the handwriting of the person drafting the will and, in some states, dated. An oral will also called a nuncupative will is accepted by a few states under limited circumstances, such as on your deathbed.
The body of a will includes:
• The names of the individuals that you are bequeathing your assets to, such as your spouse, children and friends. If you are excluding someone from your will, include a statement to that effect.
• The name of the guardian for your minor children.
• A list of assets and instructions for their disposition, with a few caveats. For example, if you own property as joint tenants with right of survivorship, the property passes to the surviving owner after your death. Likewise, an insurance policy passes to the designated beneficiary, regardless of your will.
• The name of the executor and an alternate.
Note: Video wills are becoming popular; however, consult an attorney before making a video will because not all states recognize them. Generally, a video will supplements a written will.

How to Execute a Will

A will must meet technical requirements established by state law to be legally enforceable by the courts. When executing a will:
• The person must be 18 years old or older and have testamentary capacity to sign the will. Testamentary capacity means the testator (person making the will) is of sound mind. In short, you must understand that you are making a will, the nature and size of your estate, the terms of your will and its effect and agree that it fulfills your wishes.
• The testator must voluntarily enter into and sign the will free from duress or coercion.
• The will must be signed and dated by the testator before two disinterested adult witnesses who are not beneficiaries under the will and who can attest to the testator’s identity and state of mind. Vermont and New Hampshire require three witnesses and Puerto Rico requires three witnesses plus a notary public. The witnesses also sign the will in the presence of each other.
• The will must contain a statement attesting that it is your last will and testament, the date and place of signing and that you signed it before witnesses who also signed it and watched each other sign it in your presence.

While state laws do not require a will to be notarized, the will becomes self-proving if the signatures of the testator and witnesses are notarized. By signing an affidavit before a notary public, all parties attest each witnessed the signing of the will. The affidavit can be submitted in court after you die without having the witnesses appear. You don’t have to file your will with the state. Just keep it in a safe place and make sure that the executor of your estate knows where it is. The steps required to legally execute a will are relatively simple and straightforward. While probate laws vary state by state, the requirements set forth are generally accepted by all states. Whether you choose to draft your own will or seek the advice of an attorney, having a legal will in place after your death ensures that your wishes are carried out after your death and saves your family additional stress in their time of distress.

Testamentary Intent

You must clearly express your intention to make a particular document function as your will. To satisfy this requirement, your will should include explicit language such as “This is my last will and testament.” This element is vital to avoid doubt or confusion as to the document’s purpose and your intentions.

Testamentary Capacity

You must be of “sound mind” to create a valid will. This generally means that you’re aware of your actions when creating the will. More specifically, it means that at the time the will is made, you understand that you’re creating a will, the nature of the property you own, and to whom you’re leaving your property. Even a person with dementia or Alzheimer’s may be deemed to have a sound mind, if lucid at the moment of signing. If a testator believes there might be any doubt as to his or her mental capacity at the time of the signing, a letter from a doctor affirming mental competence generally can be included with the will.

Signing The Will

You must sign your will. This step is critical because the signature is your attestation that this is your will and that you agree with its contents. If you’re physically unable to sign the will, a representative is usually permitted to sign for you with your consent and in your presence. When signing the will, you must do so voluntarily, free of fraud, coercion or duress.

Witnessing The Will

You must have at least two adult witnesses sign the will. By signing the will, the witnesses are attesting that they know the document being signed is meant to be a will, and that when the testator (the person making the will) signed it, he or she appeared to be of sound mind. If any argument about the will arises after the will-maker’s death, the witnesses might be called to testify about the will-signing in court. Many states require witnesses to be disinterested, meaning that they won’t benefit from the will. Having disinterested witnesses helps avoid the suggestion that the witness coerced the testator to sign the will for personal gain. If an interested party violates state law by serving as a witness, then the bequest to that witness is likely to be voided. Note that the signatures on a will do not have to be notarized for the will to be legally binding. Notarization is only necessary when the will contains a self-proving affidavit, a sworn statement attesting to the validity of the will.

In creating a legally valid will, certain formalities must be observed with regard to the will’s form. Most wills must be typewritten, signed and witnessed as described above, but there are specific exceptions:
• Holographic Wills: A holographic will is one that’s entirely handwritten and dated and signed by the testator. It doesn’t have to be witnessed, although two disinterested witnesses typically must identify the will-maker’s handwriting for it to be valid. Excepting the witness requirement, a holographic will must meet the other core legal requirements of a will. About half of all states permit handwritten wills.
• Oral Wills: Spoken wills, also known as “nuncupative wills”, are recognized only by a few states and in very limited circumstances. A valid oral will generally requires the testator to have made the will when in imminent danger of death (such as when a soldier is on active war duty), and in the presence of two witnesses. Because the circumstances are so restricted, oral wills are rarely validated.
• Video Wills: A video will is a subset of an oral will. This means video wills aren’t legally binding in states that require wills to be written. In states that accept oral wills, however, a video will is permissible as long as the other the requirements of an oral will are met. That said, video wills can be useful in other ways. Among other things, it can help demonstrate that the will-maker was of sound mind and free from duress at the time of creating a written will.

Will and Estate Lawyer Free Consultation

When you need legal help with a last will and testament, living trust or other estate planning matter, please call Ascent Law LLC for your free estate law consultation (801) 676-5506. We can help with probate, revocable living trusts, asset protection trust, estate litigation and lawsuits, and much more. We want to help you.