Making a Will

The Basics

Will: noun \ˈwil\ – A legal declaration of a person’s wishes regarding the disposal of his or her property or estate after death; especially: a written instrument legally executed by which a person makes disposition of his or her estate to take effect after death (Merriam-Webster Dictionary)

In the simplest terms, a will is a legal document that specifies who gets your stuff when you die. A will can also be used to specify a legal guardian for minor children. A will is an extremely important document — without it, the state will determine where your assets go. In Utah, the order of who receives your assets is as follows (this is an extremely simplified version):

1. Spouse
2. If no spouse, then children
3. If no spouse or children, then parents
4. If no spouse, children, or parents, then siblings
5. If no spouse, children, parents, or siblings, then grandparents
6. If no spouse, children, parents, or siblings, then to descendants of grandparents.
7. If no spouse, children, parents, siblings, grandparents, or descendants of grandparents, then to descendants of a deceased spouse.
8. If none of these apply, then generally the state of Utah will inherit your estate.

Will vs. living will

While these documents are often confused, a Living Will and a Last Will and Testament are actually very different. The Living Will states your wishes regarding life support if you enter an irreversible coma or persistent vegetative state. The Living Will helps your loved ones decide whether life support should be continued if you’re unable to communicate and it’s evident that you won’t be able to recover consciousness. The Living Will can also state your preferences for your body after death: whether you grant consent to an autopsy, whether or not you’d like to donate organs, whether you’d like to be buried or cremated, etc. The Living Will doesn’t specify what’s to be done with your possessions after you die — the Last Will and Testament takes care of that.

What do I need to say in my will?

There are several crucial pieces of information that should be included as you write a will. Some things may seem obvious or not applicable, but the more thorough you are, the easier it will be for those who will be reading the will to fulfill your wishes.

1. State your name, plus any other names you may have used
2. Specify your place of residence
3. State that this document is your will
4. Name your spouse
5. Name your children — even those that you plan to leave nothing. This will help avoid confusion
6. Name beneficiaries. Be specific if assets are to be divided. Also, name alternate beneficiaries in case the original beneficiaries are unable to accept
7. Designate a guardian for minor children
8. Cancel debts that others owe you
9. Name a Personal Representative to collect assets, pay any outstanding bills, and distribute property
10. Sign and date the document in front of witnesses

Do I need to hire an attorney?

So, if all you need are those ten items, why would you pay an attorney to write your will for you? The only real advantage to writing a will yourself is to save a little cash. It’s a viable option — there are online programs that make it pretty easy. Plus, if your will is going to be extremely simple (you don’t have too many assets and you plan to leave everything to your wife) it may make sense.

However, there are a few compelling reasons to hire an attorney to draft your will. The first, and probably most important, is peace of mind. Having an experienced attorney draft your will ensures that it complies to state regulations, which vary across the country, and that it is written in a way that provides the best advantages for your beneficiaries. Another reason is that a professionally drafted will is clear and specific. This will make it easier for your loved ones to follow the instructions in your will, and may help them avoid legal disputes regarding the distribution of your assets.