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Is My Will Valid?

Utah estate planning law for a Last Will and Testament is very specific in order for a will to be valid and upheld by the court after your death.  Remember, after you are dead you will not be around to correct errors or explain what you meant.

Utah law allows you to dispose of your assets via a Last Will and Testament to those people you wish to inherit from you, and exclude those you do not (excepting those who have a legal right to your support).  You may also designate who will be your executor (personal representative).

In order to be a valid will you must be a legally competent adult and express testamentary intent.  Sounds easy enough.  But I have seen quite a few supposed do-it-yourself wills come through my office that were not wills at all.

It is not enough to sign your will, nor is it enough to sign it and have it notarized.  Utah law requires that either your will be written entirely in your hand (which requirement lends itself to litigation about who really wrote the will, was he competent, etc.) or be witnessed by two people who saw you sign a typed/printed will and can testify not only that they saw you sign it, they saw each other sign it, you were competent and not under any sort of duress, etc.

The law also has specific requirements for witnesses, who must also be competent adults and, although they do not have to be completely disinterested, may be limited in the amount they can inherit from you if they are also witnesses to your will.

When a notary signs and stamps a will that notary should be attesting to the signature of the maker of the will and the signatures of the two witnesses.  Therefore, it is inappropriate for the notary to be either the signor of the will or one of the two witnesses, although I see this all the time - when people come to me because of a problem with their will.

If the signatures are not notarized then 30 years later, when you die, we will have to find those witnesses, hopefully still alive, and have them testify to the circumstances of you signing the will.  That can be a huge hassle - or even impossible.

If the will you write does not dispose of all your property, whatever property remains will be governed by the laws of intestacy, which is likely contrary to what you intended when you decided to write a will.

Even though you write a valid will, unless you take other steps, such as the creation of a living trust, your will must be submitted to probate court for validation and enforcement.

It is not impossible to write your own will or even use a form will that is valid when you die.  My experience, however, is that usually such wills are not done properly - and are invalid and useless - or lack in witness authentication - or are incomplete, triggering the laws of intestacy - or, at the least, must go to probate.

Weighed against the importance most people place on having a valid, legal, enforceable Last Will and Testament that actually works for them, and makes things cheaper and easier on their survivors, the cost of a will prepared by a practicing attorney and signed and witnessed in his office is well worth the price.

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Stephen J. Buhler, Attorney at Law
3540 South 4000 West Suite 245
West Valley City, UT 84120

PHONE 801-996-4193
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