A will is an estate planning tool that provides for the distribution of one’s property upon their death. In a will, one can designate individuals who will inherit property, appoint a guardian for minor children, and name a personal representative to manage and distribute their estate.
Essential Elements of a Will
Under Utah law, a will must be in writing, signed by the testator (the one creating the will), and witnessed and signed by two adult witnesses.
However, Utah law also provides that a will does not need to be witnessed if it is signed by the testator (the individual making the will) and the material portions of the will are in the testator’s own handwriting. This is called a holographic will.
Probating a Will
Every will must be probated. This means that a Utah court, called a probate court, determines whether or not the will is valid. Once the probate court has determined the will is valid, the personal representative of the decedent’s (deceased individual and creator of the will) estate will then use estate assets to pay taxes and debts, will distribute remaining proceeds to the designated beneficiaries, and will carry out remaining instructions detailed in the will.
The probate process can be finalized in approximately 6 months. However, if complications arise such as family disputes, creditor interference, or issues regarding title to real estate, the process may last much longer.
Benefits of a Will
- A will allows you to choose those individuals you wish to receive your property.
- You can designate a guardian for your minor children so you can ensure their needs are adequately met.
- You can name a personal representative who will handle your affairs after death. Your personal representative will pay taxes, contact heirs, contact creditors, collect your assets, ensure your debts are settled, and distribute the remainder of your property to your chosen beneficiaries.
- A will that specifically names beneficiaries, and describes exactly what property those beneficiaries will receive, can help eliminate debate and contention between family members.
- A will is less expensive to prepare than a trust.
Disadvantages of a Will
- Unlike a trust that can provide for how assets should be distributed well after your death, a will only provides for how property should be distributed immediately after your death.
- Every will must pass through probate court. Probate can last several months, can be expensive, and may require your family to hire a Utah estate planning attorney. Moreover, probate can significantly delay any distribution of your estate, often causing family members stress and grief.
- After your will passes through probate, anyone can inspect the records and learn the value of your estate and who the beneficiaries of your estate were.
- If you become disabled or incapacitated without a valid trust in place, the probate court may appoint a conservator who will oversee your s finances and manage your estate for you. This can be expensive, thereby depleting a valuable portion of your estate.
- While a trust is a mechanism by which an individual may manage and distribute life insurance payouts, retirement assets, investment accounts, or real estate owned in joint tenancy, a will offers no such benefits.
- In the event of a lawsuit, or if a creditor comes after your personal assets, a will provides no asset protection.
- A will does not save or reduce estate or income taxes.