Utah Wills

Page Navigation:

Utah Will Requirements

When making a Will in Utah, there are a number of requirements which need to be complied with. If these are not followed, you may end up dying intestate (without a valid Will). Utah Wills are regulated by Title 75 Utah Uniform Probate Code.

Requirements for Making a Utah Will

Any person 18 or older and of sound mind may make a Utah Will. 75-2-501 For a Utah Last Will and Testamentto be valid, it must be:

  • In writing;

 

  • Signed by the testator (the maker of the Will); and

 

 

  • Witnessed by at least two persons. 75-2-502(1)

 

Witnessing Requirements in Utah

The witnesses need to sign within a reasonable time after observing the testator’s signing of the Will. All persons including the testator and witnesses (and an authorized officer if the Will is being self-proved) must be present at the same time and sign in the presence of each other. 75-2-502(1)(c)

Can a Spouse witness a Utah Will?

Yes. Unlike other states, the signing of a Utah Last Will and Testament by an interested witness does not invalidate the Will or any provision of it. 75-2-505

Can I sign my Utah Will out of the State?

Yes. The execution must comply with either the execution requirements above or with the law of the place where the Will is executed or the law of the place where (at the time of execution or at the time of death) the testator is domiciled, has a place of abode or is a national. 75-2-506

Holographic Wills

If the Will does not comply with the formal execution requirements, then it may still be valid as a Holographic Will. This requires the signature and material portions to be in the testator’s handwriting (whether or not witnessed) 75-2-502(2). However, it is always best to comply with the formal execution requirements in order to avoid problems with probate.

How can I cancel my Utah Last Will?

A Utah Willcan be revoked (cancelled) by:

  • Making a subsequent Will that revokes the previous Will (expressly or by inconsistency); or

 

  • By performing a revocatory act on the Will (which includes burning, tearing, cancelling, obliterating or destroying the Will). 75-2-507

 

To ensure full cancellation, you should make a new Utah Last Will and Testament (which expressly revokes all former Wills) and also destroy your prior Wills physically.

Disinheriting a Spouse or Children from Utah Wills

Many people ask about excluding their spouse or one of their children from their Will. Simply omitting them from your Utah Last Will and Testament will not achieve the desired results. Utah, like many states, provides statutory entitlements to ensure your family is provided for regardless of your Will. In order to successfully disinherit a spouse or child, you need to seek advice from a qualified attorney. A lawyer can provide you with the relevant clauses for you Utah Will and also advise other courses of action you need to take.

Excluding the Spouse

In Utah, a spouse (whether excluded from the Will or not) is entitled to the following allowances:

  • Elective share: being the value of 1/3 of the augmented estate. If the requisite amount is less than $75,000, then the spouse is also entitled to a supplemental elective-share amount of $75,000. 75-2-202. The Utah probate code includes any non-probate transfers to others in the calculation of the augmented estate. 75-2-205. Nonprobate transfers to your spouse are also calculated. 75-2-206

 

  • Homestead allowance – amounting to $22,500. 75-2-402

 

 

  • Exempt property – which includes up to $15,000 in household furniture, automobiles, furnishings, appliances and personal effects. 75-2-403

 

 

  • Family allowance – a reasonable allowance in money out of the estate for the maintenance of your spouse and your minor and dependent children. This must not continue for longer than one year if the estate is inadequate to discharge allowed claims. 75-2-404.

 

 

  • The homestead allowance, exempt property and family allowance are deducted from ( not in addition to) the elective share. 75-2-202(3)

 

Also, if you made a Utah Will prior to being married and that Will fails to provide for your spouse, then your spouse is entitled to a share of your estate. Exclusions apply; for example where it appears from your Utah Last Will and Testament that the instrument was made in contemplation of your marriage. 75-2-301

Excluding a Child or Children

The probate code provides entitlements for any after-born or after-adopted omitted child. These are children who were not mentioned in your Utah Last Will and Testament (executed prior to the child’s birth or adoption). The amount that child will receive depends on how many children you had at the time the Utah Will was made and how much was left to them in your Will. Once again, this entitlement may be excluded in your Utah Will. 75-2-302 Any exclusion should be made expressly in your Will and only with the guidance of a qualified attorney. There may be other options or strategies you may need to consider.

Probating a Utah Last Will & Testament

Does a Utah Will need to be probated?

Probate is not required if the estate’s value (less liens and encumbrances) is $100,000 or less. In such situations, the decedent’s personal property may be collected by using the appropriate Affidavit after 30 days have passed since the death 75-3-1201. If the estate is worth more, then probate of the Utah Will needs to be applied for. 75-3-102

Informal Probate Proceedings

Any interested person may file an application for informal probate. The application must include the original of the Utah Last Will and Testament, unless already deposited with the court. 75-3-301. The applicant must give notice of the application to any person who has demanded same and to any personal representative whose appointment has not been terminated. The court gives written notice to the heirs and devisees who have not waived notice. The notice will give recipients 10 days to object to the granting of the probate. 75-3-306. However, if a person fails to object and informal probate is granted, they can still petition the court to set aside the probate under section 75-3-401. If no person objects to the Utah Will and the registrar is satisfied with the contents of the application, then the registrar may issue a written statement of informal probate, which is conclusive until superseded by an order in a formal testacy proceeding. 75-3-302

Who may apply for informal probate?

Any interested person 75-3-308, defined as including:

  • Heirs (persons who would otherwise benefit under intestate succession laws)

 

  • Devisees (persons named as beneficiaries in the decedent’s Utah Will);

 

 

  • Children

 

 

  • Spouses

 

 

  • Creditors

 

 

  • Beneficiaries

 

 

  • Any others having a property right in or claim against a trust estate or the estate ofthe decedent. 75-1-201(24)

 

Utah Estate Tax

Utah Inheritance Tax is based on federal estate tax law, making it a “pick up” tax. The Utah estate tax is calculated using the state death tax allowed on the federal return (Form 706), less amounts due to other states. A Utah inheritance tax return (Form TC-44R) needs to be filed with the Utah State Tax Commission if the death occurred prior to 1 January, 2005. Otherwise, Utah no longer requires a return to be filed or an Inheritance Tax Waiver.

Contesting a Utah Will

Grounds for objecting to a Utah Last Will & Testament

In order to contest a Utah Will, there needs to be valid a ground (reason) for doing so. Merely being unhappy with the amount received under the Will isn’t sufficient grounds to start proceedings. Allowable objections include lack of testamentary intent or capacity, undue influence, fraud, duress, mistake or revocation. 75-3-407

Who may object to the Will?

Any interested person, as defined in subsection 75-1-201(24), may challenge a Utah Last Will and Testament. For a list of interested persons, see “Who may Apply for Informal Probate” above.

Penalty Clause in the Utah Last Will & Testament

A Utah Last Will may contain a clause penalizing any interested person for challenging the document. However, the clause is unenforceable if the person had probable cause for instituting proceedings. 75-2-515

Dying without a Utah Will

Any amount which is not effectively disposed of by a Utah Last Will and Testament will pass to your heirs in accordance with Utah intestate succession laws. The intestacy rules firstly cater for the spouse and then provide for other heirs as follows:

What does my spouse receive?

  • If you have no descendants who survive you – the whole estate;

 

  • If your descendants (who are also descendants of your spouse) survive you – the whole estate;

 

 

  • If you leave one or more descendants who are not descendants of your spouse – the first $75,000 plus ½ of the balance (in Utah, if the spouse received any non-probate transfer, this will be added to the property value and treated as though the spouse received an advancement). 75-2-102

 

Who receives the balance?

  • Your children (or grandchildren) per capita at each generation;

 

  • If you have no surviving descendants, your parents equally (or the survivor of them);

 

 

  • If there are no surviving descendants or parents, to your parent’s descendants or either of them per capita at each generation.

 

 

  • In the event there are no other heirs including grandparents, descendants of grandparents or even descendants of a deceased spouse, then your estate escheats to the State of Utah for the benefit of the state school fund. 75-2-105

 

Intestacy Cases

Examples of how assets are distributed according to Utah state legislation when a person dies without a Utah Will (disregarding any non-probate transfers): Wife died without a Will, leaving husband and children – intestate distribution: Jodie passed away without a Will. She had a child to her husband Ben. Her estate is worth $300,000. Who gets what? Ben: $300,000. Intestacy rules when husband died, no Will, share of wife, children & husband’s child from former partner: Jack died leaving an estate of $300,000. He had no will. He had two children to his wife Shana. Jack also has a child from a former partner. Who gets what? Shana: $187,500, Shana & Jack’s 2 children: $62,500 each, Jack’s child from former partner: $62,500. Portion of intestate estate going to spouse, children and stepchild when wife dies without a Will: Staci died leaving $300,000 in probate property. She had no will. She has two children to her husband Brad. Brad also has a child from a former partner. Who gets what? Brad: $300,000, Staci & Brad’s 2 children: Nil, Brad’s child from former partner: Nil. Widow died without a Will, share of surviving child and grandchildren: Tony died without a will. His estate is worth $300,000. He had 3 children with his wife (predeceased). Two of their children have already died, leaving a granddaughter from one child and two grandsons from the other deceased child. Who gets what? Surviving child: $100,000 (1/3), All 3 Grandchildren: $66,666 each (share 2/3).

Utah Will Forms

Note: Before making a Utah Last Will and Testament, you should familiarize yourself with how to go about:

  • Distributing your property including specific bequests and the residue
  • Appointing an Executor
  • Creating a Trust
  • Appointing a Trustee to look after trust property of minor children or other beneficiaries
  • Designating a guardian for your minor children

Sample will forms available as free downloads (printable PDF documents):

Utah Will Form: Married with adult children
Utah Will Form: Married with adult and/or minor children, includes a trust for minor children
Utah Will Form: Married with no children

Utah Will Form: Single with adult children
Utah Will Form: Single with adult and/or minor children, includes a trust for minor children
Utah Will Form: Single with no children

Comments are closed.