How To Legally Make a Last Will and Testament Under Utah Law

Nearly everyone realizes that they should have a Last Will and Testament made but most people do not know what is required to make a valid and legally enforceable Will. The purpose of this article is to help explain what is required under Utah law (which is generally the same as most other states).

What is a Will and how it can help you?

Before we explain how to make a Will, it might be helpful to explain what is a Will. Simply put, a Will is a legal document that states: (1) a person’s wishes regarding what is to be done with the property, money, assets, and possessions they own; and (2) who is to take care of their minor or incapacitated children (if any).

A Will covers everything that is owned or titled in the Will maker’s name but does not cover property titled in the name of a Trust or financial accounts that have death beneficiaries already designated with the bank or financial institution.

With that in mind, there are two ways to make a valid and legally enforceable Will under Utah law.

You can create a legal will in Utah with two witnesses

Utah Probate Code § 75-2-502 requires the making of a Will to include the following three elements to be valid:

(a) The Will needs to be in writing;

(b) The Will needs to be signed by the person making the Will; and

(c) The Will needs to be signed by at least two adults who witnessed the Will maker signing the Will.

In other words, the Will cannot be created verbally or through the spoken word.

The Will maker needs to sign the Will with his or her customary signature (although if the Will maker is physically unable to sign but is still conscious and understands what is going on, the Will maker can ask someone else who is in their physical presence to sign the Will for them on their behalf).

Lastly, two adults over the age of 18 need to witness the Will maker sign the Will (or if the witness did not see the actual signing of the Will, the Will maker can shortly thereafter point to his or her signature and confirm to the witness that the signature was made by him or her).

You can also create a legal will in Utah without any witnesses (known as a “Holographic Will”)

Utah Probate Code § 75-2-502(2) also allows for what is called a “Holographic Will”. A Holographic Will is a valid and legally enforceable Will if the signature and material (i.e. important) portions of the document are in the Will maker’s own handwriting. A Holographic Will does not need to be witnessed by anyone else to be valid.

While a Holographic Will is the simplest and easiest way to create a Will, it is also the most susceptible type of Will to challenges to its authenticity. For obvious reasons, a Witnessed Will holds up better in court because two adults can testify to the authenticity of the Will and the Will maker’s intentions.

Here, at Cutler | Riley we encourage everyone to have a Will made. At the very least, a Will can be made simply, easily, and without the need to hire an attorney. Having a simple Will is better than not having a Will at all.

And for those that would prefer the legal advice, knowledge, and experience of any attorney to make sure nothing is missed and probate court is avoided (spoiler alert: a Will does not avoid probate court), then please schedule your free consultation with us.