Sometimes, the family of an individual will challenge the will that is presented to the court. This challenge can happen for a variety of reasons. The family may feel that the will was made when the person was no longer mentally competent, leaving significant gifts to individuals who would not be their natural heirs or writing others out of the will. In other situations, a will is challenged because it leaves out someone like a wife or child, often because it was written long before the person came into their lives and never updated.
Rolling Back to a Previous Will
In many cases, once a will challenge is complete, the court will roll back to a previous will. If a will is contested due to mental capacity, a previous will can become a valid will for the deceased person. While this previous will could also be challenged, the challengers will need to attack the will on its validity rather than assuming because the later will was invalid so is the previous will.
Taking Care of a Spouse
Many states, including Utah, have a spousal share statute that gives a portion of an estate to a spouse and children, regardless of what is written in the will. This provision is designed to protect a spouse who marries after a will is written and the will was never updated to take into account the new spouse and children.
Your spouse can choose to waive their elective share, but this must be done properly and in writing. This is often done in situations where partners marry later in life and both have adequate funds for retirement or life insurance is available to help support the spouse in lieu of a share of the estate.
Intestate Succession
If a will is successfully challenged and overturned and there is no previous will to fall back on, then the property is divided based on Utah’s intestate succession laws. Generally, this means that the state looks to your spouse, children, grandchildren, and then parents, and siblings to try and find your nearest relatives and divide your assets among them. This is designed to ensure that even those who fail to create a will, or whose will is successfully challenged, are still leaving their assets to those who are likely their natural heirs.
Taking the time to craft a custom estate plan, and update it on a regular basis, is an important part of planning to take care of those you love. The experienced trust and estates planning team from Dunn Law Firm have helped individuals craft estates that take many different forms. We also stay in touch to help you update your plan when the laws change or when your family situation changes. To learn more, reach out to the Dunn Law Firm by calling (435) 628-5405 to set up a free consultation today.
