It’s one of those topics about which people say, “I ought to do that.” Making a will is right up there with cleaning the garage and decluttering the basement. But 54% of Americans said in 2021 that they do not have a will. Die without a will, and your life can be a little more complicated.
“A lot of people think that if you die without a will, your estate goes to the state,” KSL NewsRadio legal analyst, Greg Skordas, explained. “That’s not true.”
Utah passed a law, as every state has in some form, that outlines what happens to people who die “intestate” — or without a will. If you die with a will, and that will is deemed valid, you get to decide who gets what. If you die without a will — then the state of Utah decides.
“People just don’t do wills,” Skordas said. “A lot of lawyers don’t do wills.”
But why?
In part because “the default the statute outlines is what most people would want anyway,” according to Skordas.
There are important exceptions. The statute does not provide for live-in partners or step-children. The statute provides for “spouses,” which is understood to mean married partners. Further, the statute provides only for “descendants.” That term does not include step-children unless you include them specifically in a will.
There are horror stories about couples who have lived together for decades when one partner dies unexpectedly. The children of the partner who passed are legally entitled to his/her 50% share, even if that person wanted their surviving partner to keep the house, car or other parts of the estate.
“There are things that you have to do to have your will determined to be valid,” Skordas explained. “You have to have witnesses. You can’t just write something on a napkin one day that says, ‘If I die, I want this to happen’.”
The importance of putting your wishes in writing and signing it in front of witnesses is to protect your decisions from being challenged after your death. If someone challenges your will, claiming you were incompetent when you wrote it, witnesses become very important.
Skordas explained, “When we draft wills, we have the signer come in and ask them, ‘Do you know what you’re doing? Did you read it over?’ Then, you have two witnesses who will confirm that the signer was competent to do what he was doing.”
If somebody challenges the will, you just bring in the witnesses.
“They’ll say, ‘This is what he said he wanted, and he seemed to know what he was doing’,” Skordas said.
There is an exception to the witness requirement known as a holographic will. This type of will can be valid in Utah if the signature and material portions of the will are in the person’s handwriting.