If you ask someone about estate planning, their first thought will be creating a last will and testament. That is probably the most common estate planning tool there is. The will must have the appropriate language to accomplish the goals you have for your own estate plan. The best way to ensure your will is drafted correctly, you need to have the assistance of a Missouri or Kansas estate planning attorney.
Drafting the Last Will and Testament
The Last Will and Testament, or “will” for short, is a written legal document explaining to everyone who survives you, exactly how you want your estate to be distributed upon your death. Wills are beneficial because they can always be revoked or modified at any time before your death. Wills typically include terms regarding the following matters:
- Property distribution
- Provisions for minor children, if applicable
- Identification of the executor, and an alternative, to administer the estate
- Desired funeral arrangements
- Property to be transferred into trusts
Along with addressing these planning issues, there are other important provisions that may need to be included in your will. Discuss your individual needs and options with your estate planning attorney to be sure the most effective estate planning tool is being drafted for you.
Survival Clause
A Survival Clause is most often used to clarify what to do when one of your named beneficiaries dies before you do. If these directives are not included, the property you intended to leave to that beneficiary will likely go to that person’s heirs instead. If that is fine with you, then there is no problem. But, if you would rather select an alternative beneficiary, you need to include a survival clause so you can include those specific terms.
Simultaneous Death Clause
A Simultaneous Death Clause is much like a survival clause because it addresses the prospect that you and one of your beneficiaries could die simultaneously. If this happens your will can provide the necessary instructions on how to handle that situation. Typically, the beneficiary is treated as though he or she died before you unless you specify something else.
Tax Apportionment Clause
A Tax Apportionment Clause provides that any inheritance or estate taxes owed by the estate should be paid from the remainder of the estate. This means that only after all money and personal property has been distributed to your named beneficiaries, will the taxes be paid. If you do not include a tax apportionment clause in your will, your beneficiaries will probably be required to pay a portion of the taxes depending on their inheritance.
Appointing personal representatives
You are allowed to nominate anyone you choose to serve as executor of your estate and you can include that nomination in your will. Though the probate court will make the final decision, your nomination will be considered, so you can have input on the decision by including this provision. In most cases, the court will appoint the person you indicated unless there are legitimate objections. It is also wise to nominate an alternate executor just in case your first choice is unable to serve in that role when the time comes.
Beware of Do-it-Yourself Last Will and Testament
If you are deciding whether to draft your own last will and testament with a do-it-yourself product, there are many factors you should consider. While in some situations a do-it-yourself product may be sufficient, that is not always the case. For example, if you have few assets owned in your name alone and it is your intention to leave them to your closest living relative, using a do-it-yourself will may be sufficient. However, for those who have more complicated assets and different sorts of beneficiaries, it would be very wise to seek professional advice. Otherwise, you may face unexpected consequences.
How DIY Wills can go wrong
Consider a case in New Jersey where a man used a Will DIY kit and filled in the blanks by hand. He did not have the required witnesses, but he signed his “simple will” and assumed everything was done properly. After he died, the New Jersey court had a difficult time trying to interpret his handwriting on the form. According to probate law in New Jersey, the will was inadmissible because it was not signed and executed in the presence of two witnesses as required. As a result, his family incurred significant expenses trying to ensure his intentions were being followed.
If you have questions regarding the last will and testament, or any other estate planning matters, contact Gaughan & Connealy for a consultation either online or by calling us at (913) 262-2000.
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