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.