Utah Estate Planning Attorney
Last Will and Testament Considerations
One of the foundational documents in any good Utah
estate
plan is a
last will and testament (commonly referred to simply as a "will"). It
is a common misconception that a
living
trust can be used as a
substitute for a last will and testament. Whether or not you have a
living trust, a will is required to accomplish certain critical
functions of any good estate plan.
Following are several issues to consider as you prepare
to meet with your estate planning attorney. This is not a comprehensive
list of all issues involved in drafting a last will and testament. Your
attorney
will have additional questions designed to ensure that your
will and other estate planning documents are tailored to meet your
specific circumstances.
Naming a Personal Representative
A key function of the last will and testament is to nominate a personal
representative. If probate is required for your estate, the court will
generally give preference to the individual nominated as personal
representative in your will. If no
probate
is required, the person
named as personal representative can immediately begin acting in that
role.
Some of the key responsibilities of a personal representative can
include: filing a final tax return for the decedent; identifying and
collecting assets of the estate; pursuing claims of the estate; paying
obligations or debts owed by the estate (paid from assets of the
estate); making funeral/burial arrangements for the decedent; and
distributing property or assets according to the terms of the will.
It is generally a good idea to name a first and second choice of
individuals you would like to have serve as a personal representative.
For married couples, the first choice is often the spouse. An adult
child is a common second choice. But you can choose anyone that you
trust who would be willing to take on the responsibilities of a
personal representative.
Nomination of a Conservator and/or Guardian
If you have minor children or an adult child with special needs, a will
can be used to nominate a
guardian
to care for your children. Even if
your estate would not otherwise require probate, court action will be
required to formally appoint a guardian.
A probate court will normally give preference to the person you
nominate as guardian for your children. However, these nominations will
not take precedence over a surviving parent’s authority. If you are
divorced from your child’s other parent, nominating a guardian or
conservator has no effect if the other parent survives and retains
parental rights.
A guardian can be appointed, with authority over the finances as well
as the care and custody of minor children (or an adult child with
special needs). Or a separate conservator can additionally be appointed
with authority over only the assets and financial matters.
Funeral and Burial Arrangements
A last will and testament provides an opportunity to express your
wishes or preferences regarding funeral and burial arrangements.
Ordinarily, your personal representative will be responsible for
carrying out your wishes. But you may also use your last will and
testament to assign this responsibility to another person.
A separate document can be used to authorize an individual to carry out
your wishes in regard to funeral and burial arrangements. But in most
cases, it is easiest to include these provisions in your will.
Personal and Household Property
Personal and household belongings can be distributed under the terms of
a last will and testament. This class of property often includes items
which may be high in sentimental value, but which may have little or no
monetary value. Other items in this class may have significant value,
such as jewelry or artwork.
Most of a person's household property will usually be left directly to
any surviving spouse. If there is no surviving spouse, children are
commonly named as receiving such property.
These items can be distributed as a class (e.g. "to be divided as
equally as possible among my surviving children"). Or individual items
can be bequeathed to a specific individual (e.g. "my grandmother's
wedding ring shall be given to my oldest daughter"). Often, when
individual items are to be given to a specific individual, it may make
more sense to include these bequests in a separate writing under Utah
Code 75-2-513 rather in the main body of the will itself. Using this
separate statement can make revisions easier, as such a statement does
not need to be notarized and witnessed in the same way necessary to
make a self-authenticating will.
Real Estate and Other Substantial Property
In many circumstances, a will is not the best method for transferring
real estate or other property of substantial value. If, at the time of
death, the decedent's estate is valued at more than $100,000 or
includes any real estate (house, land, etc.), the estate must go
through a public probate court action. Probate actions can be costly
and time-consuming. Even at its simplest, a probate action is a hassle
that can often be avoided through the use of a
living
trust.
An estate valued at less than $100,000 that includes no real estate can
often avoid probate through the use of a
small
estates affidavit.
But probate will be required if the estate (passing through the will
rather than through a living trust) includes any real estate or is
valued at more than $100,000.
Finding an Estate Planning Attorney in Utah

A
good estate plan must be tailored to your specific circumstances and
needs. We work personally with clients in the estate planning process
to ensure we understand their goals and can create a plan designed to
meet their needs. A
last
will and testament,
living
trust,
durable
power of
attorney, and
advance
health care directive are all common components
of a good estate plan. But the specific terms to be included in these
documents can vary greatly.
Contact us today to
see how we can help you in creating a complete and customized estate
plan or updating your existing plan.
RELATED TOPIC:
What are the differences between a last
will, living will, and living trust?