Lenexa, Kansas Estate Planning Lawyers
Estate Planning is process of arranging for the distribution of one’s estate. A critical part of estate planning is creating documents that outline your wishes for distributing your assets after you die. Every state in America has laws governing the distribution of property when a person dies without an estate plan. If you have not made any provisions for the distribution of your estate before you die, your estate would be distributed according to your state's "intestate succession" statutes. The question is not whether you will have an estate plan, but whether you will have an estate plan of your own selection or one imposed upon you by law.
Unfortunately, many people become so involved in their daily activities that they give little thought to the consequences of not having properly executed documents in place. People would rather spend their money on the newest iphone instead of ensuring that their assets are protected for and from their loved ones. However, many do realize the importance of estate planning documents to protect and provide for their dependents, but people often die prematurely leaving dependents unprotected.
Traditionally, estate planning has involved creating a will. A will is a legally binding document that addresses how your assets will be distributed at your death. It nominates an executor who will assist with the administration of your estate. Settlement of your estate may be supervised by the probate court. This process depending on the nature of your estate depends based on the complexity of your estate and your relationship with loved one, lasting up to 6 months for a simple estate or up to 1-2 years for more complex estates.
A will is a flexible tool that can be changed at any time as long as you are mentally competent. In addition to naming distribution of the estate, your will can do the following: Designate a trust to be established for family members after assets go through probate. (This type of trust is known as a testamentary trust not to be confused with a Living Trust.) Nominates a guardian, and direct how debts, taxes and expenses are to be paid,
Some of the advantages of a will are:
- Disputes can be settled through the probate court.
- A will is traditionally cheaper to prepare than a trust ($500 to $2,000).
- The probate process can lessen the time allowed creditors to make claims against your estate.
- Probate estates can select a fiscal year rather than a calendar year for income tax purposes.
Some the disadvantages of a will are:
- Lack of privacy: Your files can be accessed through the records office.
- Time: Probate can take 6 months to 2 years or more until distribution is administered.
- If you own property in more than one state, then potentially a probate action will need to be filed in those ancillary states.
- Probate and legal fees can sometimes escalate.
- If you should become incapacitated, a will does not make any provisions. You need a separate Durable Power of Attorney.
By preparing a will, most people feel they have effectively safeguarded their family's inheritance. However, this is often a false "peace of mind". A Last Will and Testament outlines your wishes about the distribution of your property after death, but testamentary documents such as wills usually require probate. In preparing only a will, you may be forcing your loved ones through months, even years, of agony in the probate court.
A living trust, also known as a Revocable Living Trust or a Family Trust is a legal document that holds title or ownership to your real property and assets. When you create a Revocable Living Trust you transfer ownership of your assets to the trust. Transferring assets is typically called "funding." When you transfer title you DO NOT relinquish any control. You can still buy, sell, borrow or transfer.
A revocable living trust looks a lot like a will. It includes the details and instructions for how you want your estate to be handled at your death. However, unlike a will a properly funded trust:
- Does not go through probate.
- Prevents the courts from controlling your assets at incapacity.
- Gives you control over the assets you leave to your minor children or grandchildren.
A lot of people are afraid that they will lose control over their assets. The living trust is a written legal document that allows you, as the trustee(s), unlimited access to and full control of your assets during your lifetime. It also enables you to pass property after your death to family, friends and/or loved ones. It allows you to appoint someone (a successor trustee) to make certain your property goes to the ones you choose after your death.
For a trust to be effective it has to own title to the property or asset. Remember, when you transfer title of your assets into the trust it is called "Funding your Trust." Funding is the process of transferring the name on accounts or property to the name of the trust. For example, accounts in the name of Bill and Mary Stevens, would now be held as "Bill and Mary Stevens, Trustees of the Stevens Family Trust
When the assets are in the name of the trust there is no need for probate since the estate is now controlled by the trustee of the trust. You or you and your spouse can be the primary trustees receiving full control to buy, sell, borrow or transfer in the case of a spouse's death. After both spouses pass, the trust identifies the person who will act as successor trustee. The trust gives that person the right to manage all assets on behalf of your wishes made known in the trust document.
Fortunately for you and for the protection of your heirs, the successor trustee does not have the legal right to change your trust. The trust becomes irrevocable or unchangeable after the death of the Trustmaker(s). However, the successor trustee does have the right to manage the assets in the estate, but must do so for the benefit of the beneficiaries.
The people who will receive the benefit of the trust's assets are called the beneficiaries. Typically the estate will go to the surviving spouse. If there is no surviving spouse, assets will pass to the people you named in your trust. You are not limited to who you want to
After you pass away, your successor trustee or co-trustee will have the same responsibilities an executor would have if you would have prepared a will. However, since your trustee does not have to report to a probate court everything can be done more efficiently and privately.
Advantages to a Living Trust
- If an illness or accident leaves you incapacitated, your successor trustee can handle your financial affairs without the need for a court appointed guardian or conservator.
- If the beneficiaries of your trust are minor children or others who might not use an inheritance as you intend, the trust can continue to hold the assets until they reach a more mature age.
- If you own real property in more than one state you avoid the expense, time and hassle of multiple probate proceedings.
- By using a trust, a husband and wife can maximize both their federal and/or state tax exemptions.
- Trusts are generally more difficult to contest than a traditional will. To invalidate a will you must either prove it was signed under duress or that the maker was incompetent on the day it was signed. To invalidate a living trust you would have to prove it was invalid not only on the day it was signed but each and every day it was in existence thereafter.
As usual, it’s recommended that you work with an attorney who has estate planning knowledge when preparing your estate plan.
Probate is the process of identifying what a person owns upon their death, and if they own their assets in fee simple (not jointly owned), or they have no beneficiary designations, or outdated beneficiary designations on their assets, they will go through the probate process. Many individuals are under the impression that their will alone is sufficient to avoid probate. Unfortunately, a will is simply an expression of your wishes and must go through some kind of court process before the assets can be distributed to the heirs. Most importantly, a will is only valid if it’s been filed and admitted to the probate court. This must be done within a certain amount of time.
The reason for probate is needed because the owner of the property or asset is deceased. Once the owner of the asset has died, probate court is the legal process needed to take their name off the title of an asset and put it in the new owner's name.
*** The information on this website is for general informational purposes only and is not legal advice. Nothing in this website establishes an attorney-client relationship between Valerie L. Moore or Amy Vinton and the viewer.