When a person’s last will and testament is subject to a contested probate in the Utah court system, the authenticity or validity of a will must be shown. If a document purporting to be the person’s last will and testament is shown to be invalid or fraudulent, the estate may be required to pass under the processes of intestate succession. In essence, this means that the estate is distributed as if there were no will, according to statute rather than in the manner the person may have intended.
To avoid intestate succession and reduce the chances of probate, consultation with a good estate planning attorney is strongly recommended. Contact us today to see how we can help.
Number of Witnesses
In order to be considered a valid last will and testament, the document ordinarily must be signed by the testator (or at his/her direction) as well as two additional witnesses. If the will is contested during a probate proceeding, the witnesses may be required to testify in court that they did in fact witness the execution of the will by the testator, that the testator was of sound mind at the time, and that the testator signed it voluntarily.
A will can be accepted by a probate court as valid and authentic without the testimony of witnesses if the will meets Utah’s requirements for a self-proved will. To be considered self-proved (or self-proving), the ordinary provisions of a witnessed will must be met and the signatures of the testator and the witnesses must be notarized. The notary may serve as one of the witnesses and may notarize his/her own signature as well as the signature of the testator and the second witness.
Utah law provides an exception to the usual witness requirements. A holographic will is a handwritten will that does not require the signature of any witness. Such a will may be found to be valid by a Utah probate court if all of the material provisions of the will are written in the testator’s own handwriting and if the will is signed by the testator. The validity of a holographic will may be challenged in probate court proceedings, but Utah law does not require a holographic will to be witnessed.
Qualifications of a Witness to a Will
Utah law provides that a witness need only be generally competent to act as a witness (see Utah Code 75-2-505). Under older common law, a last will and testament could not be validly witnessed by a person who had an interest (would inherit) under the will. Although Utah’s Uniform Probate Code now provides that the signing of a will by an interested witness does not invalidate the will, it is still generally best to have witnesses who are not also beneficiaries under the will.
Find an Estate Planning Attorney in Utah
We work individually with clients to first understand their circumstances and the unique needs of their families. We also consult and advise regarding various estate planning options to determine what tools and provisions will best meet their goals. Contact us today to see how we can help you.