Utah Valley Attorneys Help Protect Your Legacy Against State Actions
If you fail to take action to protect your estate, the state will step in and take it for you
If you die without a will, you are said to die “intestate,” opening the way for the state of Utah to step in and distribute your estate. After all creditors and tax authorities have been satisfied, the remainder of your assets will be distributed as follows:
Basic will types
Utah law allows anybody over age 18 to create a will as long as they are mentally competent. There are two basic types of wills:
- The “witnessed will” — To create an enforceable witnessed will in Utah, the person making the will must put its terms in writing and then sign the document in the presence of two witnesses, who also must sign the will. A notary public should verify the will maker’s signature and the signatures of the witnesses.
- The “holographic will” — This is a handwritten will. No witnesses are required. A typed document does not qualify as a holographic will.
An estate planning professional will recommend a witnessed will as the safer way to go.
A joint will is made between two people, each leaving all their property and assets to the other. It also stipulates who will inherit the assets when the second person dies. Once the first person dies, the joint will cannot be altered.
This approach does not offer great flexibility. For instance, say Dad passes and his son becomes a multimillionaire, while his daughter becomes impoverished. Mom cannot change the joint will to favor the needy daughter.
A word about living wills in Utah
While a living trust is a type of trust, a living will isn’t really a will: It’s a statement that specifies the types of care you do or don’t want if you become incapacitated. Combining a living will with a durable power of attorney, which lets you name someone to act on your behalf should you become incapacitated, creates an advance healthcare directive.
A will that is formally probated can be challenged during the four-month to two-year period probate typically requires, but it cannot be challenged once probate closes. Wills informally probated are challengeable for up to three years after the decedent’s death.
Wills that are probated formally are those that are more complex and require a court hearing to either open or close their probate period. But when an estate has limited assets, probate may dispense with the court hearing. It’s up to the will’s executor or administrator to consult state guidelines to determine whether a will should be formally or informally probated.
In contesting an informally probated will for you, Fillmore Spencer LLC argues why the informal probate process or a recent informal probate decision should be set aside and replaced with a formal proceeding and then serves notice of the challenge to:
- The executor of the will
- Everyone named in the will
- The decedent’s spouse, children and other relatives who might be in line to inherit under Utah state law if the decedent died without a will
- The general public, via a listing in the local newspaper
Primary grounds for challenging a will
The primary reasons to challenge any will include:
- Lack of capacity — The will maker was not of “sound mind” when making the will, did not understand the scope of the estate, relationships with named or unnamed beneficiaries or the consequences of distributing the estate.
- Failure of formality — The will is invalid because it has been erroneously completed. For example, a signature of the will maker or one of the two witnesses is missing, or the date is wrong.
- Fraud or undue influence — Fraud occurs when the will maker makes a testamentary disposition based on false information. Undue influence occurs when the will maker is coerced into leaving assets to someone not legally entitled to them.
Challenging a will requires caution: Some wills carry a penalty clause stating that any beneficiary who contests the will and loses will lose their inheritance. But under Utah law, you cannot be punished if you have a legitimate reason for objecting.
Make your will as simple or complex as you need it to be
The most successful legacies are those underpinned by a well-constructed foundation. Meet with Fillmore Spencer LLC’s estate planning attorneys to discuss your needs by calling us at (801) 426-8200 or contacting us online and arranging for a free initial consultation.