Wills and Trusts
Get the personal advice you need to make the best plan for your family
The Miller Law Firm maintains an active estate planning practice in Missouri and Kansas. We are pleased to assist our clients with many types of estate planning. collections services.
What is a Will?
A Will is a legal document. It allows you to choose who receives your belongings and assets after you die. The recipients of your property are called your beneficiaries. A Will can also be used to nominate a guardian to care for and raise your minor children as well as a custodian to manage their property and finances. Creating a Will also allows you to choose a person to manage the distribution of your assets. This person is called an executor or personal representative.
Why should you make a Will?
A major reason to create a Will is that all of your property will be distributed as you wish, rather than according to the laws of your state. Creating a Will is your opportunity to make your intentions clear, and to keep important decisions in your hands. Every adult who has property, whether it’s a home, a fishing boat or a priceless art collection, should make out a Will. And every parent with a child under the age of 18 should name a guardian for that child in his or her Will. While such a determination is not binding on any judge, it does let your wishes be known and Judge’s will usually follow those wishes.
What can a Will do?
A Will can accomplish the following:
1) Leave real and personal property to a spouse, children, grandchildren, other
relatives, friends, favorite charities or anyone else you choose;
2) Provide alternate beneficiaries if someone named in the Will predeceases you;
3) Revoke all prior Wills;
4) Forgive debts owed to you;
5) Nominate a guardian for minor children;
6) Nominate a custodian for minor beneficiaries;
7) Choose a method for leaving property to minor children
8 ) Appoint an executor (or personal representative), the person who will carry
out your wishes and administer your estate; and
9) Disinherit a relative who might otherwise be entitled to inheritance under the law.
What may happen if there is no Will?
Each state has laws of “intestate succession” which provide for the transfer of property to relatives if a person dies without a Will. The law determines who will receive your property, and how much each person will receive. The court will not take into account what you may have wanted. If you have no relatives, then the property may go to the government. If you did not express your wishes in a Will, the Court does not know what you want, and therefore must follow the mandates of the law in distributing your property. Your friends, favorite charities and some family members, who otherwise might have been remembered with a bequest (a gift) in your Will, may have no standing with regard to the intestate succession laws, and may receive nothing when you die.
Property also might go to relatives that you don’t want to have your property. Intestate Sucession can be very complicated. It is always better to let a person know what you want rather than to have someone guess or try to remember.
If you have minor children, the court may appoint a guardian and conservator that is not the person you wanted. While the court is not bound by your designation of a guardian in your will, at least they will know your wishes and unless there is some reason, will uphold those wishes.
Property you may not be able to leave by a Will
A Will generally does not affect certain kinds of property that you’ve legally bound yourself to transfer by other means. The following are some examples: • Property held in joint tenancy, which will automatically belong to the surviving joint tenants at your death.
• Property you’ve transferred to living trust.
• Proceeds of a life insurance policy for which you’ve already named a
beneficiary for the policy.
• Money in a pension plan or in an individual retirement account such as an
IRA, 401(k), or profit-sharing plan, or any other retirement plan for which
you’ve name a beneficiary.
• Money in a pay-on-death (POD) bank account or stocks held in a
transfer-on-death (TOD) account, for which you have named a beneficiary
to receive whatever is in that account when you die.
• Real property for which you’ve recorded a transfer-on-death deed (or
beneficiary deed) in which you’ve named a beneficiary to receive the real
property when you die.
You can disinherit anyone you want to, except for your spouse in many states. Also if you have entered into a valid contract to leave someone some property in your Will, you may not be able to negate that contract simply by disinheriting the person in you Will.
What can you do if your executor’s name changes?
“My executor, who is my daughter, has married and changed her last name. Do I need to change my Will?”
This concern can be handled easily. The safest method is to prepare an amendment to your Will, called a codicil, setting forth your daughter’s new name. But even if you don’t do that, a probate court would most likely interpret your choice for executor to mean your daughter, since you used her legal name as it existed when you wrote your Will.
Does my Will need witnesses?
Typically, your written Will must be signed or acknowledged by you in the presence of at least two disinterested persons as witnesses. Afterwards, they sign your Will attesting to their act of witnessing your signature or acknowledgment. They usually certify that when you signed the Will you signed voluntarily and were of sound mind.
Your signatures, as well as the witnesses’ signatures, are notarized. In Kansas and Missouri this makes the Will a self-proving Will and allows the Will to be admitted to probate with no testimony from your witnesses other than the affidavit in the Will.
What do I do if I want to make changes?
You may change your Will as often as your life circumstances change. Whether you want to add a new child to your Will as a beneficiary or replace your executor with someone else, we can prepare a Codicil to reflect these changes.
For further information or to see how The Miller Law Firm can assist you in estate planning needs, please call the law firm at 913-912-707.