After your death, if your estate goes to Probate without a Will, the Court will impose a plan for your assets. Without a Will, you have no say in who takes care of your minor children. When two or more family members disagree about your medical care and feel strongly about their positions, the family can be divided. If you have a poorly drafted Will, you may inadvertently cause family strife and division. Kansas Law Group has experience litigating family disagreements in Probate Court so we know how to help you avoid them.
What is a Last Will and Testament?
A Last Will and Testament should be one part of a comprehensive Estate Plan.
Your Will is a written set of instructions to the Probate Court. You must petition the Court to accept your Will as valid and accept its instructions. Unlike a Will, a Trust-based Estate Plan avoids Probate.
You may name someone you trust as your Personal Representative (Executor). If you do not name a Personal Representative, the Court will appoint one for you. The Court may even appoint one of your creditors.
You can incorporate a Trust into your Will to protect assets for beneficiaries in the case of law suit, divorce, or devastating life events. Since the Trust is in the Will, the Trust does not become legally valid until your death. The Will must go through Probate for the Trust to become legally operational.
Your Will does not help manage a your affairs when you are incapacitated, whether by mental disability, illness, or injury.
Many people choose Will based Estate Planning because they believe that a Will is cheaper than a Trust. A Properly designed Will based Estate Plan should be comparable to a Trust-based Estate Plan. When including the additional expense of Probate, a Will-based plan is often more expensive.
In a Will-based Estate Plan, your Will expresses your final wishes for distribution of your assets.
A Will is the place to nominate guardians for your minor children. If you do not designate a guardian for your minor children, the Court will decide on a person it deems appropriate to care for your children OR may even place your children in foster care.
If someone who receives government disability benefits is a beneficiary of your Will, he or she may be disqualified for those benefits. A properly drafted Trust overcomes this concern.
You can make your wishes known about funeral arrangements, burial or cremation, and memorial services inside of your Will. However, a will is not necessary to make your wishes known regarding these arrangements. They are most often recorded in stand-alone documents.
Without such a provision family members may dispute and even litigate your final arrangements.
What Happens If I Die Without A Will?
- The Legal Term For Dying Without A Will Is Called Dying “Intestate.” If You Die Intestate, The Court Will Decide How And To Whom Your Property Will Be Distributed.
- The Court’s Distribution And Guardianship Orders May Not Be The Same As Your Desires.
- You Cannot Prevent Heirs The Court Choses If You Die Intestate. You Can Prevent This By Creating An Estate Plan.
- If The Court Finds No Legal Heirs, Your Assets Will Be Distributed To The State.
Advantages Of Probating Your Will:
If your family or beneficiaries are likely to disagree due to mistrust or dysfunction, it may be advantageous to petition a Court to oversee the inventory, accounting, and distribution of your assets.
Disadvantages Of Probating Your Will:
“Probate is a lawsuit that you file against yourself, with your own money, for the protection of your disgruntled heirs and creditors.” (Peter Parenti) With a Trust-based Estate Plan, you can avoid Probate and avoid subjecting your loved ones to the costs and potential problems that accompany it.
Probate must take place in each jurisdiction in which you own real estate. Generally, a Probate case is opened in the jurisdiction of the decedent’s last residence. An additional Probate proceeding in another jurisdiction is referred to as an “ancillary Probate.” You can avoid Probates in multiple jurisdictions by using a Trust-based Estate Plan.
Probate generally requires an inventory to be filed. Both your Will and the inventory of your assets are public records. You can keep your assets and their values private by using a Trust-based Estate Plan.
Whether an attorney is charging by the hour or a flat fee, ; uncontested Probate fees are significant. If your Will is contested, the legal expenses can quickly become exorbitant. Proper use of a Trust-based Estate Plan can avoid the cost of Probate.
Probate proceedings may last anywhere from several months to several years. There are delays built into the Probate process to protect estate creditors and potential beneficiaries. In a Trust-based Estate Plan, your chosen Trustee does not have to wait for Court approval to take action. Your Trustee can act immediately to preserve the value of your assets, pay debts, and make distributions during Trust administration.
Case #1
Tabitha Just Got Divorced From An Abusive Husband And Is Taking Action To Keep Her Children From Their Abusive Father. She Cannot Stop Worrying About Her Children Going Back To Her Ex-Husband If She Were To Die Before The Court Makes A Decision.
Tabitha Meets With An Attorney At Advanced Legal Planning And Designs An Estate Plan That Instructs Her Personal Representative (Executor) Of Her Will To Expend Whatever Resources Are Necessary On Court Proceedings To Find That Her Ex-Husband Is Not Fit To Be A Parent. In That Will, She Nominates Her Sister As The Guardian For Her Children And Nominates A Good Friend As A Backup Guardian.
Case #2
Henry’s Mother, Jennifer, Had An Estate Plan Prepared By Advanced Legal Planning.
Jennifer Just Died And Now Her Son, Henry, Is Administering Her Trust. When Going Through His Mother’s Records, Henry Finds Out That His Mother Inherited A Home From Her Aunt But The Home Was Never Transferred Into Her Trust. Henry Comes To Kansas Law Group Seeking Advice On What To Do.
The Attorney Shows Henry That His Mother Had Both A Trust And A ‘Pour Over Will.’ The Pour Over Will Was Created To Probate Any Assets Which Jennifer Failed To Transfer Into Her Trust. The Beneficiary Of Jennifer’s Pour Over Will Is Her Trust (The Will “Pours Over” Into The Trust).
The Attorney Explains To Henry That He Was Appointed As The Personal Representative Of The Pour Over Will And That He Needs To File A Probate Petition To Transfer The Home Into Jennifer’s Trust.
All Of Jennifer’s Other Assets Are Already In Her Trust. The Probate Will Only Be Used To Transfer The Home Into The Trust. Henry Can Continue Administering The Other Trust Assets While Waiting For The Probate Proceedings To Conclude.
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