William James, an American philosopher and psychologist, said, “When you have to make a choice and don’t make it, that is in itself a choice.” In Utah, when you don’t sign a Will or Trust, choices will be made for you based on state law.
Your first and foremost goal is to sign your plan before your death. What happens if you never get around to signing an estate plan? The answer depends on your situation. Were you in a second marriage? Did you leave any debts? Did you leave behind minor children? Did you own real estate, or more than five vehicles? Did you have over a hundred thousand dollars in the bank? Each answer can change what happens to each asset in each unique circumstance.
Sooner is usually better
Life insurance companies put a great deal of time and effort into predicting outcomes. They will benefit if they can determine when you are likely to die and then price your insurance accordingly. Those predictions are most useful when applied to a large population. Each individual lifetime will vary, and there is no way to accurately predict how long an individual will live. Sometimes life gives us plenty of notice, and other times our passing is a surprise to everyone.
Adding challenge to this problem is the one in three possibility that we will die with some form of dementia. We may spend a significant portion of our last years without the understanding needed to make estate planning choices.
The easy answer to these concerns is to sign your estate plan now, while you still can. If you want to make changes to that plan later, based on new circumstances, you will often be able to do so, but why risk waiting for the change before making a plan, and then losing the ability to choose?
Capacity
The true line in the sand, regarding when you can sign a Will or Trust, is mental capacity. 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 natural heirs are.
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 likely to challenge that Will in court. Without a challenge, the Will is going to stand.
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 properly 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 estate transferred in a Will, then the assets named in the Will are often distributed without even going to probate. If third parties such as banks or the department of motor vehicles are involved, probate may still become 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. This is most likely when someone is left out of a will, or if someone received an unusual amount of assets prior to their parent’s death, and then the estate plan gives them an equal share of what remains. If a challenger can show evidence that the decedent signed the Will when evidence exists that they were not of sound mind, the judge has the ability to declare the Will invalid. If someone has already been diagnosed with any mental health issues, this can become a challenge to the creation and signing of a Will or Trust.
If you are aware of someone who has unduly influenced a loved one, you can report the situation to Utah’s Adult Protection Services. An investigator with experience in similar situations will contact those involved to learn what may be going on and help to protect the aged and infirm.
Shielding the Will
or Trust
One solid method of protecting a Will or Trust is for a signer to visit their primary care physician near the date of the signing of the Will or Trust. The doctor can write a letter or make a clear notation in their records. The doctor must state that the patient is able to identify their heirs and their property, or make some other clear statement about the patient 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.
Visiting a doctor can sometimes be a risky move. Each state has it’s own rules defining capacity necessary to sign a will. Some doctors are casual in their analysis of capacity, and may ask the wrong questions. One client of mine visited a doctor in preparation for signing his will. The doctor asked him how much money was in his bank account. He didn’t know. He later explained to me that he has his son do his bookkeeping for him, so he did not know the amount. Unfortunately, the doctor put a permanent notation in the client’s medical record stating that he did not have capacity.
The doctor may have been trying to ask a question that met the required standard of knowing what your assets are. A better approach might have been, “Do you own any assets? How many different parcels of land? Where are they located? Do you have any investments? Who manages them for you? A good follow up question could be to ask how many children they have and whether a child has children of their own and how many. This question shows whether the patient knows their natural heirs, whether they intend to gift to them or not. If a doctor doesn’t already know the answers to these questions, it may be helpful to have a close family member present that can confirm whether the patient’s answers are correct. The best approach is to perform one of the commonly used tests of mental capacity.
After going to the doctor, some clients will invite their heirs to read their new estate plan, and then ask them to sign a statement that the heir accepts the plan and won’t challenge it when the client passes away. This can help if there is any question regarding the capacity of the client. Including all possible heirs in the process will also guard against manipulation by a single heir. Keeping your wishes private is always up to the client, but sometimes doing so may backfire and allow a jilted heir an opportunity to reverse those wishes later after the client has died.
Too Early to Sign
Minors (under age 18) are unable to make a Will in Utah. Most minors die without a spouse or children, which will result in their assets being given to their parents.
Is it Too Late?
Whether or not it is too late to sign a Will or Trust is a great question to ask an estate planning attorney. With over seventeen years of experience, we can answer your questions and advise you on your options. Give us a call today! See ad on page 21.
THIS ARTICLE OFFERS GENERAL LEGAL PRINCIPLES AND IS NOT A SUBSTITUTE FOR ACTUALLY MEETING WITH AN ATTORNEY TO DISCUSS YOUR SPECIFIC CIRCUMSTANCES. DO NOT TAKE ANY ACTION BASED ON THIS ARTICLE WITHOUT FIRST DISCUSSING YOUR PROBLEM WITH AN ATTORNEY.
