As you can see from our website, the attorneys at Gaughan & Connealy are highly committed to educating their clients about legal issues related to estate planning. We offer a comprehensive electronic library of special reports covering numerous estate planning and probate issues. We also update our blog regularly in order to provide updates on the ever-changing laws in this field. Finally, our free estate planning and related workshops are always a valuable source of information. Essentially, it is our desire that Kansas residents stay informed. Below, you will find the answers to many of the most common questions about the last will and testament.
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The property covered by a will must go through probate. Essentially, the probate court must supervise the administration of a will after determining that the will is valid. The court, through the efforts of the executor of the will, ensures that the estate property is distributed based on the wishes of the deceased. On the other hand, trust property is transferred outside of the probate process, which means the court is not required to manage the process.
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Generally speaking, the last will and testament controls the property that is in your name alone at the time of your death, but only the property that you specifically identify in the terms of the will. Any other property that is not mentioned in a will is controlled the by the laws of intestate succession. The trust, however, will only pertain to the property that has been transferred or “funded” to the trust. Therefore, in order for a specific asset to be included as trust property, generally the title of that property must be transferred to the name of the trust account.
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The primary goal of a will is to distribute your estate, the primary goals of a trust are to reduce estate taxes and avoid probate whenever possible. Wills can be effective estate planning tools because they can be modified or revoked at any time before your death or before you are deemed incapacitated. A trust is an agreement between two parties for the benefit of a third. One of the primary differences between a will and a trust is that a will only becomes effective after your death. On the contrary, unless you specify otherwise, a trust takes effect as soon as it has been executed.
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If deciding to use a DIY will instead of the professional services of an estate planning attorney, you should consider the risks that are involved. Estate planning, in general, can be very complex as there are so many variables that must be considered in order to draft the appropriate estate planning documents. Even more basic than that, wills are legal documents that must be drafted and executed in a particular way in order to assure that they are valid.
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For many clients, a primary goal of estate planning is avoiding probate. If that is the case for you, consider a "pour over" will. Typically, a pour-over will is used in conjunction with a living trust, which allows selected property or assets to "pass through" your will upon your death, and then be "poured" into a trust. Once that happens, the property can be distributed to the beneficiaries named in the trust. If you have questions about this special type of will, ask one of our Kansas City estate planning lawyers. The major benefit is that a pour over will takes care of any assets or property that was not transferred to the trust before your death.
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When creating a will, you must possess the legal competency or mental capacity to do so. Otherwise, the will may not be considered valid by the court. However, simply because someone has a mental illness or disease, that does not mean they automatically lack the required mental capacity. In fact, if the testator has periods of clarity, he or she could still be considered competent at the time the will is executed, if it occurs during that period of lucidity.
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Wills need to be in writing, including your name, address and marital status. The terms of the will need to include a statement of which property you want to be distributed to which beneficiaries. It also needs to specify who you want to serve as your executor. That is the person who will have the power to carry out the terms of your will. If you have minor children, you should also include the name of the person you want to serve as their guardian, should anything happen to you and there is no surviving parent.
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The Last Will and Testament can be a very useful legal document describing to everyone who survives you exactly how you want your property distributed after your death. Wills can be useful because they can be easily customized, and they can be modified or even revoked at any time while you are still living.
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If you have questions regarding the last will and testament or any other estate planning matters, please contact the experienced attorneys at Gaughan & Connealy for a consultation. You can contact us either online or by calling us at (913) 262-2000. We are here to help!
