Vantage Point Legal Services LLC

Last Will and Testaments

DEFINITIONS

Estate - The property you own in your own name alone at your death and that is required to go through probate; or the actual administrative proceeding in the probate court regarding that property.

Personal Representative - The person appointed by the probate court to administer your probate estate, who may be referred to as an Executor or Personal Representative.

Trust - A trust is a special type of agreement that determines how a person’s property is to be administered, managed and distributed during his or her lifetime and also upon death, or for some period of time after death, but in a way that completely avoids probate.

WHAT IS A WILL?

A will is a legal document that (a) states who receives your property when you die, (b) names your Personal Representative to handle your estate, (c) names a Guardian for your minor children, and much more. Each state has its own laws about wills.

Contrary to popular belief, a will does not avoid the necessity of probate. In fact, a will is designed with the intention of governing the administration of any property that does need to go through probate. However, it is possible to plan your estate so that probate is not necessary.

WHO CAN MAKE A WILL?

Any person who is at least 18 years old and of sound mind.

WHEN IS A WILL LEGAL IN MISSOURI?

When it is signed with certain legal formalities and the signature is witnessed by two people.

A will can be changed in special ways, such as by a codicil.

An earlier will may be revoked or canceled by properly executing a new will.

WHAT IF YOU DIE WITHOUT A WILL?

If you die without a will, you are said to have died “intestate”. Property that you own alone on the date of your death would first go to your closest relatives, and sometimes to more distant relatives, under guidelines called “rules of intestate succession” as set forth in the statutes. If absolutely no relatives are found (a highly unusual circumstance), your property goes to the state. Who receives your property is set by law, not by your choice, if you die without a will.

Without a will, you give up the right and opportunity to control the distribution of your property, the naming of a Personal Representative to handle your affairs, and the naming of Guardians for your minor children.

TO WHOM CAN YOU GIVE YOUR PROPERTY?

To any person or entity you choose, such as family members, friends, schools, churches or other charities, and in any manner you choose.

WHY IS IT NECESSARY TO HAVE A WILL?

You can decide who receives your property.

You can name the guardian of your choice for your minor children.

You can provide for your children without the court imposing a probate conservatorship.

You can set up a trust for your family.

You can plan to save on some death taxes.

You can save certain costs by waiving bond and providing for independent administration.

You will know that you have planned well for your family.

WHAT CAN A WILL ACCOMPLISH?

A will may provide for:

  • Specific burial instructions
  • Directions to pay debts & taxes
  • A detailed plan of distribution
  • Charitable bequests
  • A list of tangible personal property
  • An override of statutory rules of intestate succession
  • Nomination of trustees, guardians and personal representatives
  • Creation of a trust for minor children
  • Creation of estate tax planning trusts
  • Pour-over of residue of estate into a pre-existing trust
  • Receipt of life insurance proceeds by a trust created in the will
  • Sale of real estate without specific probate court order
  • Independent administration of the probate estate
  • Amendment by codicil
  • Self-proving execution before a notary public

WHAT CAN A WILL NOT ACCOMPLISH?

A will cannot:

  • Cause assets to avoid probate
  • Change title to property that is held in joint names with a right of survivorship
  • Change beneficiary designations on any contract such as life insurance, employee benefit plans, IRAs, 401(k) plans, bank accounts, PODs or TODs.
  • Cut off a surviving spouse’s right to “take against the will”
  • Change an existing trust
  • Transfer life insurance proceeds into a trust without first going through probate

HOW LONG IS A WILL LEGAL AND VALID?

Until it is changed or canceled by you.

A will provision benefiting a spouse will not be enforceable after you get divorced.

WHEN SHOULD YOU THINK ABOUT CHANGING OR UPDATING YOUR WILL?

Your estate planning goals and objectives will naturally change over time. People should review their estate plan on a regular basis or every few years, or upon the occurrence of any major change in their lives, such as a death in the family, a move out of state, a change in marital status, a retirement or other loss of employment, the receipt of an inheritance or other substantial change in their financial condition. In this way, your formal estate planning documents can be modified in order to keep up with the various changes that occur from time to time in your lives.

WHAT CAN TAKE THE PLACE OF A WILL?

Nothing can truly take the place of a will. Nowhere else can you name the Guardians of your choice to take physical care, custody and control of your minor children after your death. Nowhere else can you name the Personal Representative of your choice to administer your estate and pay your taxes.

Yet there are several techniques available to help you avoid probate. One of your estate planning goals should be to take all reasonable steps to reduce or avoid probate altogether. This goal can be achieved in large measure through the careful and coordinated utilization of (a) Revocable or Irrevocable Trusts, (b) holding property in Joint Names With Right of Survivorship, (c) Transfer on Death (“T.O.D.”) and Payable on Death (“P.O.D.”) Beneficiary Designations, and (d) Beneficiary Deeds on real estate.

You should always have a will in addition to these other techniques as a safety net to cover unanticipated circumstances and to name your own personal representative or guardian for minor children.

These techniques, if used correctly and under the right circumstances, may enable you to totally avoid probate.

WHO CAN BEST ADVISE YOU ABOUT A LAST WILL AND TESTAMENT?

You should never sign a will without the advice of an attorney who practices in this area of law.