Quick Summary: August is National Will Month, making it the perfect annual reminder to dust off your estate planning documents. A valid Will is essential for dictating how your assets are handled, naming your Personal Representative, and avoiding the surprising—and potentially messy—default inheritance laws of your state.

If you have been putting off creating or updating your estate plan, you are not alone. However, August is National Will Month, which begs the question: isn’t it time to get your Will reviewed?

At its core, a Will is simply a written document that clearly indicates exactly how you want your “stuff” distributed after you pass away. Many people mistakenly believe they don’t have enough wealth to warrant a formal estate plan, but an estate encompasses much more than just a bank account. It can include your car, furniture, a home, investments, retirement accounts, and life insurance. Interestingly, even if all you leave behind are bills, someone is still going to need the legal authority to administer your estate and negotiate with your creditors.

Whether you are starting from scratch or reviewing an old document, here is what you need to know to ensure your wishes are legally binding and your family is protected.

The Anatomy of a Valid Will

Not just any piece of paper will hold up in court. To actually be valid, a Will must be signed and dated. You can handwrite or print the document, but the execution rules differ.

• If your Will is not completely in your own handwriting, your signature must be witnessed by two individuals.
• These witnesses must be over 18.
• Preferably, witnesses should not be related to you, nor should they be individuals who are receiving gifts in the Will itself.
• It is also highly recommended to have a notary sign your Will; this ensures your witnesses won’t have to be tracked down to testify in court if there is ever a dispute over the document.

While you can write one yourself, an estate planning lawyer can expertly draft a formal Will for you, though it will still absolutely require those witnesses and a notary to be legally binding.

Naming Your “Personal Representative”

You might be used to hearing the term “executor,” but today the proper legal term for the person managing your estate is “Personal Representative.” Your Will should clearly state both a first and a second choice for the person you want in charge of carrying out your final wishes.

Furthermore, your document must explicitly outline how your real property, personal possessions, vehicles, and financial accounts will be distributed upon your death. Crucially, you should also name alternate recipients if your primary choice passes away before you do.

The Trap of “Intestacy”: What If You Die Without a Will?

If you don’t take the time to create a Will, the State of Utah essentially has a default one waiting for you. Dying without a Will is legally referred to as “intestacy”. If you die intestate, state law steps in to rigidly determine who gets your property and who will be put in charge of your estate.

You may be very surprised by the drastic effect Utah’s intestate laws could have on your family. Consider the incredibly common scenario of a blended family:

• If you are in a second marriage and die without a Will, state intestacy law dictates that your belongings will be divided between your current spouse and your children from a previous relationship (who are not the children of your current spouse).
• If your home is only in your name, your new spouse and your children may be legally forced to share the equity in that home.
• Naturally, this strict division could lead to some very awkward yet interesting living arrangements.

Taking Back Control

You have worked incredibly hard for many years to save money, pay off your house, and build a life. It is only natural that you should have total control over who gets to enjoy those assets when you are gone. To ensure you have the ultimate say-so over your estate, you must make sure your Last Will & Testament is complete, executed properly, and fully up-to-date.

Keep in mind that no matter how well-drafted your Will is, it does not actually go into effect until after you die, and it must be “activated” by a court procedure known as probate. If you want to avoid the probate process entirely, there are many excellent “Will substitutes” available that you should explore.

Ready to secure your legacy? Sit down with a local elder law attorney to discuss your options.

Robyn Walton, Elder Law Attorney, Rowe & Walton PC, Bountiful, UT