When is it Too Late to Sign a Will or Trust?
It goes without saying that you must take all steps necessary to complete a Will or Trust before you have died. Anything produced after that date cannot be recognized as valid wishes of the decedent. Anything produced while in a coma will have the same result. Though such questions seem ridiculous, once a large sum of money is involved, there will be some who will try to bend the law as far as possible in their own favor.
The true line in the sand, is not nearly so clear as death or a coma. In the state of Utah, you must be of “sound mind” to sign a Will or Trust. This is further defined as knowing how much property you have and knowing who your heirs are. Another word commonly used in probate court is “capacity”. Was the person who signed the Will mentally incapacitated?
When does all this matter? Consider a sole surviving parent who dies, leaving a Will that gives their entire estate in equal portions to all of their children. If this is the result desired by all of those children, no one is going to challenge that Will in court. When a Judge makes decisions in probate court, he or she will always ask if there is anyone present that disagrees with the decision. If everyone with an interest has previously been notified of the court hearing, and there are no challengers, the Judge will grant whatever is requested by those present.
If there is no real property transferred in a Will, then the assets named in the Will are normally distributed without probate. If third parties such as banks or insurers are involved, probate is usually necessary.
When Challenges are Made
Whenever there is a disagreement over how much property should be paid to a particular heir, there is a very real possibility of a challenge to the Will. If the challenger can show evidence that the decedent signed the Will when they were not in sound mind, the judge has the ability to declare the Will invalid. If someone has been diagnosed with limited mental health issues, this can become a challenge to the creation and signing of a Will or Trust.
Protecting the Will or Trust
One very clear method of protecting a Will or Trust is to visit the signer’s primary care physician on the day of, or not long before or after, the signing of the Will or Trust. The doctor can write and sign a letter, or make a clear notation in their records. The doctor must state that the signer is able to remember their heirs and their property, or make other clear statements about being of “sound mind”. Any later challenge to the validity of the Will or Trust has small chance of success in the face of such evidence.
Too Early to Sign
Minors (under age 18) are unable to make a Will in Utah. In the event of the death of a minor, their property will be distributed first to the minor’s spouse, then to the minor’s children, then to the minor’s parents, and then to the minor’s siblings. State law also provides that anyone that took part in the cause of death will not inherit.
Is it Too Late?
Whether or not it is too late to sign a Will or Trust is a great question for an attorney. With over ten years of experience in Estate Planning law, we are prepared to answer you questions, and advise you on your options. Give us a call today!