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Educational Materials: Wills & Probate Q & A

1. Who can make a will?
2. Who should make a will?
3. What is a will?
4. What happens if a person dies without a will?
5. What is probate?
6. Who should prepare your will?
7. Can a will be revoked or changed?
8. Does everyone need a living trust?
9. Can a beneficiary designation substitute for a will?
10. Can joint tenancy substitute for a will?
11. What considerations should you have in mind when making or changing your will?
12. What else should you consider in addition to making a will?

Who can make a will?

Generally, anyone 18 or older can make a will. To make a valid will, you must be "of sound mind" which means that you understand such things as the general nature and value of your estate, the people who would be the natural objects of your affection, and to whom you are leaving your estate in your will.

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Who should make a will?

Every adult who has or expects to have any accumulation of property or who has a spouse or children should have a properly prepared will. Everyone, whatever his or her circumstances, should seriously consider making a will.

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What is a will?

A will is a written legal document. In a will, you can do such things as:

Name the people and organizations that you choose to receive your property - both personal property and real estate;
Name the person you wish to be guardian for your unmarried children under 18 in the event there is no surviving parent;
Name your "personal representative" (the person or trust company that you wish to handle your affairs after your death) and an alternate personal representative;
In some cases, avoid or minimize, in a legal way, any taxes your estate or your family may owe;
Make special provisions, perhaps by means of a trust, for the care of your minor children or some other family members who may have special needs; and
In general, avoid many problems which can occur if you die without a valid will.

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What happens if a person dies without a will?

If you do not leave a valid will, the court distributes your estate to your relatives in a certain order set out by law. This is called "intestate succession." The law will treat all your property the same. There are no special provisions for heirlooms, jewelry, or the family business. If your legal heirs do not agree among themselves to a specific division of your property, it may be necessary to sell property to achieve the distribution of value required by law.

If you are married but do not leave a valid will, your spouse will inherit all of your property unless you have children from a previous marriage. If you have a child or children from a previous marriage, one-half of your property will go to your spouse and one-half to your child or children, subject to provisions for homestead allowance, family allowance and exempt property.

If you do not name a guardian in your will or in a separate document and if there is no surviving parent, the court will appoint a guardian for your minor children. This may not be the person you or your spouse would have wished.

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What is Probate?

The term "probate" generally refers to the entire process of administering the estate of a deceased person. By statue, your personal representative has certain duties and powers with respect to the administration of your estate. In general, your personal representative must account for all of your property, notify your creditors and your heirs and beneficiaries, collect debts owed by you, pay your debts and taxes, and then distribute the rest of your property to those named in your will or to those who should receive it under the laws of intestate succession, whichever is applicable.

Probate is often a very simple, inexpensive process. Under prior Utah law, the personal representative and lawyer were often compensated based upon a percentage of the assets of the estate. Current Utah law states that a personal representative and attorney are entitled to reasonable compensation for their services. This can either be in the form of an hourly rate fee or a fixed fee. Probate can provide some very significant benefits to an estate, such as requiring creditors to make claims timely or have their claims barred. Moreover, some very important tax elections are available after death only to a decedent's personal representative, and a personal representative can be appointed only through the probate process.

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Who should prepare your will?

You can legally prepare your own will. Your will may be handwritten. This type of will is called a holographic will. In Utah your handwritten will must be signed by you as must the material provisions of the will. No witness is needed for a handwritten will.

Because the laws which affect wills are very complex, it is usually advisable to have a lawyer prepare your will. This need not cost a great deal for a simple will. If your estate is large, it will be worth the cost of having a more complex estate plan. A lawyer can give you an estimate of what your will might cost. "Form" wills or "homemade" wills may prove to be invalid or unclear and could possibly lead to litigation.

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Can I will be revoked or changed?

Yes. A will may be revoked or changed at any time by the maker. Very specific legal requirements must be met for the revocation or changes to be effective. An amendment to the will normally is referred to as a codicil, and, to be valid, must be completed with the same legal formalities as the will.

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Does everyone need a living trust?

No. A living trust is a good estate planning tool to be used in some situations, such as where you own assets in more than one state and want to avoid probates in multiple states, or where there is a high risk of mental incapacity and you want to select who will manage your assets if incapacity occurs. But a living trust is not for everyone, particularly if you have a small estate. In many cases, the post-death cost of a probate will be less than the before-death cost of a living trust. A living trust, if properly drafted and funded, can work for many people: but it may be more estate planning than you need.

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Can a beneficiary designation substitute for a will?

No. Beneficiary designations under such assets as a retirement account or a life insurance policy deal only with the retirement account or the proceeds payable to the beneficiaries under the policy and generally will not pass to the beneficiaries under a will. Life insurance trusts are sometimes used to assure desired use of insurance proceeds and for estate tax savings.

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Can joint tenancy substitute for a will?

Joint tenancy is a form of property ownership in which a husband and wife or others own property jointly with rights of survivorship. This means that when one joint tenant dies, the property will pass automatically to the surviving joint tenants, subject in some cases to filing death tax returns, payment of tax liabilities and payment of certain debts. Your will has no control over property which you own as a joint tenant with others and generally will not pass under the terms of your will. This may or may not be a good estate planning device, but it does not substitute for a will. Joint tenancy disposes only of that particular property. It makes no provision for anything else. In large estates, joint tenancy ownership of assets can increase the total inheritance taxes owed upon the death of both spouses.

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What considerations should you have in mind when making or changing your will?

Who should be your personal representative and alternate personal representative?
Who should receive your property?
Who should be named guardian for your minor children?
Should a trust be created for your spouse or children?
Has your marital status changed since you last made a will?
Has the amount or nature of your assets changed significantly since you last made a will?
Should you plan for estate and inheritance (death) taxes?
Have any intended beneficiaries of your estate died or had material changes in circumstances?
Have you had or adopted a child since you made your will?
Have the probate laws or estate inheritance tax laws changed since you made your will?
Should you change the guardian or personal representative named in your will? A previous choice may no longer be appropriate.

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What else should you consider in addition to making a will?

What if you should become terminally ill and be kept alive only by medical treatment designed to sustain your life processes? You may choose to sign a "right-to-die" statement. Whatever your choice, it may be a great comfort to your loved ones to tell them of your wishes.

Should you provide a "gift of life" to others by an organ and tissue donation? A decision to do so usually is carried out after a family discussion by the signing and witnessing of a Donor Card which you carry in your purse or wallet.

How should you provide for disposition of your personal effects? Under Utah law, instead of listing these in your will, you may refer in your will to a separate written statement or list which describes the items and names the person who is to receive each item. The statement or list must either be in your handwriting or be signed by you, must be referred to in your will, it must be reasonably clear, but it may be created or changed after the will is signed. Thus, it is a very convenient means of distributing such property and it allows you to change your mind.

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