Q. What happens if a person dies without a will?

The state of Utah will decide how your property is distributed to your beneficiaries, namely your spouse, children and close relatives. If you have minor children, a judge will decide who will care for them.

Q. What is the difference between a last will and a living will?

A last will is a testamentary document, which specifies your final wishes, how you’d like to distribute your property after death, and who will care for your minor children. A living will is a medical directive that communicates your end-of-life wishes in the event you are incapacitated or unable to do so regarding things such as treatment options, life support, organ donation, and others.

Q. What is the difference between a living trust and a last will and testament?

A last will provides detailed instructions on how property and assets will be managed and distributed when an individual dies. It becomes effective only after the individual’s death and after the will has been accepted by the court in a probate proceeding. Upon acceptance by the court, an executor or representative is appointed and given authority to carry out an individual’s wishes as detailed in the last will.

A living trust bypasses probate and provides detailed instructions on how property and assets which are held in the trust are to be managed and distributed.  A living trust becomes effective upon its creation and provides for the transfer of authority to a successor trustee or representative without court involvement in the event of disability or death.

Q. What is a personal representative?

The personal representative is responsible for the administration and settlement of your estate. This person is also referred to as an “executor.” If you die without a will the court will appoint a representative of your estate called an “administrator.”

Q. What does a will do?

A last will and testament allows you to communicate your final wishes regarding how your property and assets will be passed to your beneficiaries, appoint someone as your personal representative, and name a guardian for your minor children if you were to unexpectedly pass away.

Q. When should you use a last will?

You should use a last will and testament to specify your final wishes, determine how your property will be distributed to your beneficiaries after death, choose a personal representative (executor) to carry out your wishes, and name a guardian for your minor children.

Q. Do I need a minimum number of assets to create a last will?

No. It does not matter how much property or assets your own when creating a will.

Q. Who can have a will?

In Utah, anyone over the age of 18 and considered “legally competent” and of sound mind can have a will.

Q. What makes a will legal?

In Utah, a will must be made by someone over the age of 18 that is “legally competent” and of sound mind. This person must be acting on their own free will without influence or duress from others. The will must be signed by the person creating the will and two witnesses who are not beneficiaries.

Q. Can a will be changed or revoked?

Yes. The original creator of the will may change or revoke the will at anytime.

Q. Is my will valid if I move to another state?

Yes. If you create a valid will in the state of Utah, the U.S. constitution’s “full faith and credit” clause requires all states to honor the laws of the other states. However, if you do move, it might be wise to speak with a lawyer in that state to see if any changes should be made.

Q. What happens to my debts when I die?

All debts must be paid by the estate before any assets or property can be distributed. To transfer property with a secure loan, the property may be passed on through the will, but that person will be responsible to pay the remaining debt.

Q. Do I need an attorney to create a last will?

No, although it is highly recommended. In the state of Utah you can prepare your own will. You must date and sign your own will. In addition, the will must be signed by two witnesses. The witnesses must watch you sign the will and must be people who won’t inherit anything under the will.  You may prepare your own, handwritten will. This will is called a “holographic will”. A witness is not needed, but you must sign the will. This type of will is not recommended because they are often not properly written and cause more problems down the road.

If you have questions about a last will and testament, please schedule a free consultation with our attorneys. We will give you advice and direction for your own personal situation. All of our estate planning packages include a last will and testament.