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Utah Living Will

Laws regarding Utah Wills are governed by the Utah Probate Code, including Utah Code Section 75-2 Part 5 “Wills”

Should I get a living will?

It depends on what you want to happen to your real estate and personal belongings when you are deceased and if those plans are different from the Utah intestacy laws.

A Living Will is basically a letter to the judge telling him how you want your assets divided up when you die. It will not let you avoid probate, and it is not a private document. In order to avoid probate and keep your assets and the division of your assets provide, you must set up a trust (see Utah Trusts). If you do not set up a will or a trust, your assets will be divide up according the state Utah’s intestate laws (intestate means you did not have a will).

Who can make a living will?

Anyone 18 years old or older who is of sound mind can make a living will.

Do I need an attorney to write a living will?

No, you can draft your own living will, but it is a good idea to have your living will drafted or reviewed by an attorney. Utah Law permits handwritten wills, called “holographic wills”. In order for a will to be held up in court, it does need to meet certain requirements, including that it must be in writing; it must be signed by the testator (the person making the will) or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction; and it must be signed by at least two individuals, each of whom signed within a reasonable time after he or she witnessed either the signing of the will or the testator’s acknowledgment of that signature or acknowledgment of the will.

A will that does not meet the aforementioned requirements may still valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting.

Who can I use at witnesses for my will?

Anyone who is “generally competent” to be a witness, can be a witness for your will, even an interested party, or an individual who might be a beneficiary or recipient of the assets distributed in your will.

Can my living will be contested?

Yes, your living will can be contested by heirs or parties who claim to have a right or interest in your assets. That is why it is important to make sure you have properly drafted and executed your will. Some common challenges to wills include vagueness or ambiguity in the will, you lacked “sound mind”, the will was drafted under duress or pressure, assets were promised outside the will after the will was drafted, the will was drafted a long time ago and personal and real assets had changed dramatically since it was drafted, some assets that spouse or heirs have a right to may not be bequethed in a will, etc.

Can my living will be revoked?

Yes, your will can be revoked. Common ways to revoke a will include drafting a new will that expressly revokes the prior will or is inconsistent with the prior will. Physically destroying a will can also revoke the will. A change in circumstances alone, may not always revoke a will. A revoked will can be revived the testator or the person who made the will.

Other things to note:

A living will can reference other documents that are in existence when the will is drafted, so long as sufficient information is provided in the will to clearly identify the other document. A will can devise property to beneficiaries directly, or to the trustee of a trust. In fact it is common practice to create a “pour over will” which devises property into your trust, in other words it pours over all of your remaining assets that were not in your trust, into your trust, so that your trust is the governing document for all of your real and personal property.

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