Estate Planning and Probate

An estate plan is a set of instructions that must be capable of being carried out by people you will not be present to advise, at a time when they are least equipped to interpret them. Its purpose is not merely to distribute property. It is to remove, so far as documents can, the questions that otherwise divide families.

What happens without a plan

A person who dies without a will dies intestate, and Missouri law then determines who inherits. The statutory scheme distributes the estate among a surviving spouse and descendants in fixed proportions. It takes no account of the relationships as they actually stood, of a promise made to a particular child, of a partner to whom the deceased was not married, or of a beneficiary whose circumstances make an outright gift unwise.

The consequences for a family with minor children are more serious still. Where no guardian has been nominated, the court decides who raises them, choosing among applicants and without the guidance the parents could have given. That is a decision most parents would strongly prefer to make themselves.

Intestacy also tends to be slower and more expensive than administering an estate under a properly drafted will, because more must be established by evidence and more is open to dispute.

The instruments

A will directs how property passing through your estate is distributed, appoints the personal representative who will administer it, and nominates guardians for minor children. To be effective it must satisfy the formalities Missouri law requires as to signature and witnesses, and a document that fails those requirements may fail entirely however clear its intention.

A revocable living trust holds assets during your lifetime and passes them on your death without probate administration. It is not appropriate for everyone, and it is frequently oversold. Where it does earn its cost is where you own real property in more than one state, where privacy matters, where a beneficiary requires provision over time rather than outright, or where the possibility of a challenge makes the greater difficulty of contesting a trust valuable. A trust is only effective as to the assets actually transferred into it, and an unfunded trust achieves nothing at all.

A durable power of attorney appoints someone to manage your financial affairs if you become unable to do so. A healthcare directive appoints someone to make medical decisions and records your wishes about treatment. These two documents frequently matter more during life than the will matters after death. Without them, a family faces a guardianship proceeding at exactly the moment they are least able to conduct one.

• Wills, including provision for minor children
• Revocable living trusts, and the funding that makes them effective
• Irrevocable trusts for asset protection and tax planning
• Special needs trusts preserving eligibility for benefits
• Durable powers of attorney
• Healthcare directives and living wills
• Beneficiary deeds for Missouri real property

The assets a will does not govern

A point that surprises many people is that a will does not control every asset. Property held in joint tenancy passes to the surviving joint tenant. Life insurance, retirement accounts and accounts carrying a transfer on death designation pass to the named beneficiary. These transfers occur by operation of the designation, and they override whatever the will says.

The result is that an out of date beneficiary designation can defeat an otherwise careful plan entirely. A retirement account still naming a former spouse will pay that former spouse, and the current spouse's remedy is limited and expensive. We review designations alongside the documents, because reviewing one without the other leaves the plan half made.

Probate administration

Probate is the court supervised process by which a deceased person's estate is collected, debts and taxes are paid and the remainder is distributed. In Jackson County it is conducted in the probate division of the Circuit Court.

The personal representative is required to identify and secure the assets, give notice to creditors, deal with claims, file the necessary tax returns, account to the court and to the beneficiaries, and make distribution. It is a fiduciary role carrying personal liability for its proper discharge, and it is ordinarily performed by someone who has never done it before and who is at the same time grieving.

We guide personal representatives through it. Missouri also provides simplified procedures for smaller estates, which can conclude a matter considerably faster where the estate qualifies. Whether it does is one of the first things we determine.

Contested matters

Where the validity of a will is challenged, on the ground that the testator lacked capacity, was subject to undue influence, or that the document was not properly executed, we act for the party propounding the will and for the party challenging it. Disputes about the conduct of a personal representative or a trustee, and claims for an accounting, are handled in the same division.

These matters are painful as well as expensive, since the parties are ordinarily members of one family. Where a resolution can be reached that preserves what remains of those relationships, that is the outcome we pursue first.