What most people don’t understand about a Will is that is MUST be probated after your death before it goes into effect. Your named Personal Representative, sometimes called an Executor, has to hire an attorney and petition the probate court to admit your will in order to put your plan into action. If your will is not admitted to probate in a timely manner after your death, it will expire and it will be deemed as if you died without a will at all. 

There are many advantages to having a Last Will and Testament prior to your death:

First, YOU decide who will manage things for you instead of leaving it up to a judge, which can avoid a family feud when your family tries to convince the judge who they think might be best.

Second, YOU decide who inherits your property instead of getting stuck with the manner provided by State statutes. State statutes have a very detailed plan as to what happens to someone’s property after they die without a will. These statutes are referred to as “the law of intestate succession” and probably do not contain a plan that would be consistent with what you want. You can also set up Testamentary Trusts within Wills so that the inheritance of young beneficiaries can be managed for them until they are older and more responsible.

Third, by having a Will, you can waive bond for your Executor, which is an expensive and difficult insurance policy to obtain. You can also authorize simpler forms of probate within your will to make the probate process simpler.

Finally, and probably one of the most important things about having a Last Will and Testament, particularly for younger people, is that it is the ONLY valid legal method by which to designate a Guardian for your minor children if you should pass away before they turn age 18. Your will is your voice to the judge as to who you think would be the best person to raise your minor children in your absence. It is the strongest evidence that could possibly be introduced as to the best interest of your children and the most difficult for third parties to challenge when the judge decides who to formally appoint as the Guardian of your children. Without this evidence, anyone can come forward and argue to the judge that your children should be raised by them.

Having a Last Will and Testament literally takes all of the argument out of things in terms of who should be in charge, who gets your property, and who should raise your minor children. The only disadvantage of having just a will, as opposed to a trust, is that it is, essentially, simply a letter of instruction to the probate court and court action is required to implement your wishes.

When you set up a Trust, which an entity that is established in order to avoid the probate court process after you pass away, you must make sure that all of your assets are owned by your trust or transferred to your trust via non-probate transfers after you die in order for the Trust to work and probate to be fully avoided.

It is quite common for people who have Trusts to forget to title something they own in the name of the trust before they die. In that instance, if there is an asset in their sole name without a named beneficiary, the asset is subject to probate and the Pour-Over will is needed in order to get the asset transferred into the Trust after death.

A Pour-Over will is essentially a back-up plan. If you forget to put something in your trust, the Pour-Over Will can be relied on to get it there. It essentially “pours over” the asset into your trust so that the asset can be handled as the distribution provisions in the trust detail. If you have a Trust, you most certainly must have a Pour-Over Will as well.

Because all wills do have to be probated, a Pour-Over Will is no exception. It does have to be admitted to the probate court within the time periods specified by law in order to be effective.

Pour-Over wills are normally much simpler and shorter than regular wills because essentially all they say is that you want everything transferred into your trust and name a Personal Representative, sometimes referred to as an Executor, to oversee that process. Like a regular Last Will & Testament, you also have the ability to waive bond and authorize simpler forms of probate in a Pour-Over Will.

The person who creates a Trust is called a Grantor. This is because the creator of the Trust is granting property and/or assets into the trust entity.

A Trust is an entity controlled by a Trustee named by the Grantor in the trust document. In most Revocable Trusts, the Grantor is also the Trustee as long as the Grantor is alive and not incapacitated. It is possible for married persons to set up joint Trusts in which they are both Grantors and Trustees. A Successor Trustee, as well as Alternates, are designated up-front in the trust document in order to take over the management of the trust entity upon the death or incapacity of the Grantor.

The trust document itself spells out the powers of the Trustee. In a typical Grantor Revocable Trust, the Trustee powers are quite expansive, ensuring that the Grantor does not lose control over the assets once transferred into the Trust entity. For example, if you created a Revocable Trust and transferred your bank account into it, you would still have full powers with respect to the money in the bank account because the Trustee powers in the Trust document would specify that. You would also still have the power to sell real estate owned by the trust, manage your investments, etc. In a Revocable Grantor Trust, there are no additional income tax filing requirements and the Grantor’s Social Security Number can be used as the Tax ID number.

The purpose for creating a Revocable Trust is so that, upon your death, you don’t own anything, your trust does, and so there are no assets of yours to go through probate. You’ve taken the assets out of your own name and put them into the name of an entity that lives on after you die. This is where the term, “Living Trust” comes from.

Trusts are normally considered better than Wills because Trusts do not have to go through probate after you die and are private documents only seen by the individuals named as beneficiaries of the trust, whereas Wills are public record.

The Trust document itself allows you to spell out how you want your trust assets distributed after you die. There are more protections built into a trust than a typical transfer-on-death designation, or even will provisions. For example, if one of your beneficiaries is a minor, in the middle of a bankruptcy or divorce, or suffering from some sort of disability, a properly drafted trust should contain provisions to protect in all of these instances so that your assets don’t end up in the hands of your beneficiaries’ creditors or other third parties pursuing your beneficiaries. If you have children or other beneficiaries who are not well-equipped to manage money, suffer from drug or alcohol addiction or similar problems, the trust can also include provisions and protections to address these types of situations. You also have the opportunity to designate a Guardian and set up distribution plans for any minor children to ensure they have funds for what they NEED at the discretion of your Trustee, but they don’t actually get their inheritance outright to do what they want with until they’re older.

A Revocable Trust can be changed or revoked at any time. It is usually recommended that you take a look at your trust about every 5 years to make sure you do not want to make any changes, that all persons named in the trust are still alive and named in appropriate roles, etc.

One of the factors to consider when setting up a Revocable Trust is the process referred to as “Trust funding.” In order for the Trust to work and probate to be fully avoided, all assets must be transferred into the name of the trust or the trust must be named as the beneficiary of all assets. All real estate must be transferred to the trust via a Quitclaim Deed prepared by the attorney. Generally speaking, all other assets are either re-titled or beneficiary forms naming the trust as the Transfer-on-Death (TOD) beneficiary must be completed and returned to the various financial institutions where assets are held in order to get the trust named. One advantage of working with the Trust & Will Center is that we assist you with trust funding and give you instructions as to how to get all of your assets transferred into the Trust. If an asset is forgotten, and you die with something in your sole name without a named beneficiary, that asset will have to go through probate. This is why having a Pour-Over Will is so important to have in conjunction with a Revocable Trust.

Although a Revocable Trust costs more than a Will, a properly funded Revocable Trust does not have to go through probate after you pass away and its settlement is much faster, more private, and easier on your family.

Typically, in an Irrevocable Trust, the Grantor or Settlor names a third-party Trustee to manage the assets of the Trust and, therefore, gives up control of the assets transferred into the Trust.

There are various motivations for creating Irrevocable Trusts and, normally, the key motivation is to transfer assets out of the name and control of the Grantor for certain reasons, such as becoming eligible for need-based governmental benefits or minimizing estate taxes. Irrevocable Trusts are somewhat difficult to manage administratively. Many times it is required to obtain a separate Tax ID number for the trust and sometimes annual income tax returns are required. Creating an Irrevocable Trust is a somewhat aggressive approach to estate planning, is not incredibly common, and all aspects of creation and administration of an Irrevocable Trust should be carefully considered and evaluated with your attorney and accountant.

For many of these need-based programs, the requirements are such that the individual receiving the benefits must be a person of limited financial resources in order to continuing receiving the benefits. For example, many times an individual who has more than $1,000-$2,000 in cash, depending on the State, will become ineligible for Medicaid benefits. If such a person, then, inherits money, they will be immediately disqualified from these types of need-based benefits and would likely spend through their inheritance quite rapidly. However, if you still want to include in individual who is receiving need-based benefits as a beneficiary of your trust, you can structure their share into what is called a Special Needs Trust, sometimes referred to as a Supplemental Needs Trust, so that the funds you leave them can only be used to supplement and not jeopardize their eligibility for the governmental need-based benefits they receive. If you want to include a special needs beneficiary in your plan of distribution, we can structure their share so that it goes into a Special Needs Trust. Their share would be managed by a Trustee that you choose. That Trustee would be instructed, through the trust document, not to distribute funds to the beneficiary for expenses that might otherwise be covered by Medicaid or other similar programs, but, instead to only use funds to supplement any benefits they might be receiving. This will allow the funds you leave them to last longer because they’ll be able to retain their need-based benefits.

It is extremely important for you to choose a Trustee to manage the Special Needs Trust who is able and willing to stay abreast of the various benefit programs and laws surrounding benefit eligibility. You should also choose someone you trust to terminate the Special Needs trust should the laws drastically change, and who will use the remaining funds for the benefit of your special needs beneficiary.

There are essentially two types of Durable Powers of Attorney—Springing and Immediate.

A Springing Durable Power of Attorney goes into effect only when you become incapacitated. Normally, the document itself specifies how your incapacity is determined. Typically, the document will state that once two doctors agree you are unable to manage your own financial affairs, the document goes into effect and the Agent you’ve named begins handling your financial affairs on your behalf.

Another type of a Durable Power of Attorney becomes effective immediately when you sign it. This means that a doctor’s certification that you are incapacitated is not required before your Agent is able to act on your behalf. This type of Durable Power of Attorney is normally drafted for married couples or for people with extremely close family relationships where the Principal does not want the Agent to have to go to the trouble of getting a doctor to certify to incapacity before being authorized to act.

The Durable Power of Attorney document typically lists numerous powers that the Agent would have with respect to acting on behalf of the Principal. Powers might include the ability to access bank accounts, file income tax returns, picking up a certified letter, accessing a safety deposit box, or even creating or amending a trust.

The purpose of creating a Durable Power of Attorney is to avoid the necessity of a Conservatorship action with the probate court. If you become incapacitated and do not have a Durable Power of Attorney or some type of other proper planning, someone will need to petition the probate court to be appointed as your Conservator before anyone has the power to manage your financial affairs on your behalf. Any action in the probate court is time-consuming and expensive and should be avoided.

An Agent acting under a Durable Power of Attorney has a fiduciary duty to act in the best interest of the Principal. Accordingly, it is a breach of the Agent’s duty to use any of the Principal’s funds to benefit anyone other than the Principal. An Agent can be required to give an accounting of his or her actions and can be removed for breaching their fiduciary duty.

Many times, I hear my clients state that they have added their children’s names to their bank accounts so that funds can be readily accessed if they become incapacitated or pass away. It is a risky move to make a child a co-owner of your bank account because they may get sued, go through a bankruptcy, or get divorced. It also does not attribute any sort of fiduciary duty to them and they are free to walk away with 100% of your money at any time without any legal consequences. Additionally, adding your children to your bank accounts does not give them any power to handle other financial affairs for you, such as signing your income tax return or dealing with the Social Security office.

Most Health Care Powers of Attorney go into effect when two doctors agree that you are unable to make or communicate a medical decision for yourself. At that point, your Agent, or another Alternate Agent you have designated, has the legal authority to direct a health care provider as to your course of medical treatment.

A properly drafted Health Care Power of Attorney should give you the option to choose whether or not to give your Agent the explicit authority to make a decision to direct a health care provider to withhold artificial nutrition and/or hydration—i.e., tube feeding and IV. 

Within a Health Care Power of Attorney, there should also be a Health Care Directive, most commonly referred to as a “Living Will,” built into the document. Making a Health Care Directive gives you the opportunity to provide guidance to the Agent you have named in your Health Care Power of Attorney as to what medical treatments you may or may not want should you become persistently unconscious without a reasonable expectation of recovery.

Finally, all Health Care Powers of Attorney should contain explicit HIPAA provisions. HIPAA is a health care privacy law passed in 2001. If your Health Care Power of Attorney document does not specifically name your Agent as Your Personal Representative for purposes of HIPAA, your Agent will not be able to communicate with medical personnel and have access to your medical records in order to make medical decisions on your behalf. If you signed a Health Care Power of Attorney prior to 2001, or if your document does not contain these provisions, it needs to be updated due to the passage of HIPAA.

A Health Care Power of Attorney also gives you the opportunity to consent to organ donation, and gives your Agent the power to decide the final disposition of your body (sometimes referred to as the right of sepulcher).

If you do not have a valid Health Care Power of Attorney and you become incapacitated, your family will be forced to petition the probate court for the appointment of a legal Guardian to act on your behalf. A Guardianship proceeding is costly, time-consuming, public record, and very difficult on your family. Having a Health Care Power of Attorney allows you to avoid this probate proceeding and puts you in charge, instead of a judge, of designating who will manage your medical care.

There are many different types of Real Estate Deeds used for many different types of purposes. The two most common types of Real Estate Deeds used in estate planning are Quitclaim Deeds and Beneficiary Deeds.

A Quitclaim Deed, commonly incorrectly called a “Quick” Claim Deed, is a type of real estate deed in which the Grantor is “quitting” whatever interest they have to the Grantee. So, for example, if I own 100% of a parcel of real estate and I sign a Quitclaim Deed transferring the property to you, then you will then own 100% of the property because that is what I owned and “quitted” to you. If I only own 50% of the real estate and I sign a Quitclaim Deed transferring the property over to you, then you will only be receiving what I own—50%. Quitclaim Deeds are used frequently to transfer real estate into trusts and many times between family members in a divorce or other type of family situation in which someone is signing away whatever rights they have to a property to someone else. A Quitclaim Deed contains no type of “warranty” language, such as would be found in a Warranty Deed, another type of deed. It simply means that the Grantor is transferring whatever interest the Grantor has (which may be none) to the Grantee and making no further promises as to the status of the title of the property.

Another type of deed commonly used in estate planning is a Beneficiary Deed. A Beneficiary Deed is a deed that you can sign now that states that, upon your death, the real estate described in the deed is transferred to someone else. This type of deed allows you to retain full ownership of your real estate until you die. Although using a Beneficiary Deed can be a good way to avoid the probate of your real estate after you die, there are some pros and cons of relying on this type of planning that you should definitely discuss with the attorney. An advantage of using a Beneficiary Deed is that the persons named as Grantees in the deed will generally inherit the property without going through probate. Disadvantages are that all parties and their spouses have to sign off on any subsequent transfer and there could be major problems if a beneficiary dies before you, minors get involved, or one of the beneficiaries is disabled or involved in a bankruptcy, divorce, or other financial crisis situation.

Warranty Deeds are deeds used to transfer property that recite certain warranties on the face of the deed. Normally, the Grantor is promising that they are transferring 100% good title to the Grantee and promises to defend that good title if there are problems down the road with the title. If you are buying real estate from a third party, you always want to get a Warranty Deed.

One aspect about deeds that most people do not understand is that the actual paper copy of a deed is usually not worth much in and of itself until it is recorded with the Recorder or Register of Deeds office in the county where the real estate is located. With the exception of Beneficiary Deeds, other types of deeds are effective only between the parties themselves until the deed is recorded with the County. Beneficiary Deeds are not effective at all until recorded. After a deed is recorded, if you lose the original, you can still obtain an official copy from the Recorder of Deeds office. The Recorder of Deeds office records are public records and you can go there to obtain copies of all deeds recorded with the County. Once in awhile, our office will run in to a client who thinks that whoever holds the hard copy of his or her deed is the owner of the property and they are reluctant to give the deed copy to us. But the official owner of real estate is the owner of record as reflected with the Recorder of Deeds office, unless, of course, a non-beneficiary deed has not yet been recorded.

Another thing that is commonly misunderstood about all deeds is that, if you are married, even if only your name is listed as the sole owner on a deed, if you decide to transfer the property, your spouse’s signature is absolutely required to complete the transfer of the property. That is why, when you look at a deed, marital status of the parties is always disclosed. As already mentioned, some people overlook this fact when they leave real estate to their children using Beneficiary Deeds. If that is done, after they die, their children AND their spouses have to sign off on any subsequent transfer, which can be problematic, depending on the family dynamics.

When you decide to start your own business, you open yourself up to certain risks associated with that business and your customers. If something goes awry in the course of your business and someone gets hurt, they may come along and choose to sue you. Generally speaking, if your business is set up in the form of an LLC and managed separately from your personal finances, the person suing you will only be able to collect against the assets owned by the LLC and not your personal assets. So, then, setting up an LLC is really a way to help protect your personal assets from liabilities associated with your business acts.

There are three parts in setting up an LLC. First, you must register your business with the Secretary of State’s Office and pay the filing fee. Second, you must obtain a Tax Identification Number, sometimes called an Employee Identification Number, or EIN, from the IRS. Finally, you must put together and Operating Agreement. An Operating Agreement details who owns the business, who the members and managers are, and spells out all the various rules and overall workings regarding the management and operation of the business. It is arguably the most important piece in setting up your business and the most common item that people overlook when attempting to set up their business on their own without using an attorney.

If you are considering setting up an LLC, it is critical for you to also discuss how to best structure your business with your accountant as well to make sure it is in your best interest from an income tax perspective and to decide matters such as appropriate tax elections, etc.

Guardianship Estates:

A Guardianship is a legal proceeding in which a guardian is appointed by the Court to exercise the legal rights of an incapacitated person. If you are unable to take care of yourself, and you have not signed a Durable Power of Attorney for Health Care prior to your incapacity, your family has to petition the probate court in the county where you live to be appointed as your Guardian. Any family member can apply. Sometimes multiple family members apply and a family feud erupts as the court is forced to pick which family member is most suitable to serve. Whoever applies to be appointed must hire an attorney. The going rate for probate attorneys in Kansas City is $250 an hour. The attorney prepares the Petition and supplemental documents, coordinates with the doctor to obtain medical evidence of incapacity, and files the paperwork with the Probate Court. There is also a filing fee of over $100. The court then appoints a second attorney to represent you to ensure your rights are protected. A hearing is then held (keep in mind that two attorneys are present at the hearing, each billing their hourly rate). At the hearing, evidence is presented to prove you are in fact incapacitated and to establish that the person applying to be appointed guardian is qualified and appropriate to serve. The court then enters a judgment of incapacity confirming you are incapacitated, and issues Letters of Guardianship to the person applying. But the process hardly stops there. Each and every year thereafter, the guardian is required to file an annual report to the court updating them about your condition, placement, current status, etc. Keep in mind that all of this information presented to the Court, including the very personal medical evidence at the time of filing and each year thereafter, is now a matter of public record. Anyone can go into the probate court and read about your condition, etc. All of the fees associated with the process, including court costs and attorneys fees will ultimately be paid by you if you have funds to pay. If you do not have funds to pay, your family has to pay for their attorney who is petitioning for guardianship over you and the County will pay for the attorney representing you.

Conservatorship Estates:

A Conservatorship is a legal proceeding in which someone is appointed by the Court to manage and account for an incapacitated person’s assets. If you have not signed a Durable Power of Attorney prior to your incapacity, you need a guardian to take care of you, and you also have assets of any kind, the person applying to be your guardian will also have to apply to be your conservator. The process includes everything that the guardianship process does. Additionally, the person applying has to file a bond in the amount of your assets. A bond is like an insurance policy. For example, if you have $100,000 in assets, the person applying has to post a $100,000 bond so that if they mismanage your funds in some way the bond insurance covers them. Bonds are very expensive and you have to have good credit to get one. So if the person applying doesn’t have good credit, they won’t be able to serve as your conservator. Once your conservator is appointed, they have 30 days to file an Inventory of your property—listing to the Court (and, again, this is all public record so anyone can go see what assets you have) everything you own. Additionally, every single year, your conservator has to file an accounting proving to the court how he or she managed each and every asset and each and every dollar that came within his or her control. Verifications from the bank have to be filed as well, and original canceled checks and/or bank affidavits have to be presented to support every expenditure over $75. And, keep in mind, an attorney has to be hired to prepare every annual accounting at the rate of $250 hourly. Who pays for this? You!

Decedent Estates:

Another role of the probate court is the administration of decedent estates. Decedent probate is a legal proceeding during which a Personal Representative (PR) is appointed by the Court to settle creditor claims, prosecute/defend lawsuits, and properly distribute assets to heirs/beneficiaries of a decedent after all expenses and claims are paid. You do not have to do estate planning at all. And, if you don’t, the State has a plan in place for you and probate is required. When you die with assets in your sole name without a named beneficiary, those assets have to be probated before they can transfer to your heirs. If you leave behind minor children, often times a whole separate layer of probate is necessary to protect the interest of the minors. Additionally, because you haven’t specified who you’d want to handle things, your family members all have a chance to petition the court to be appointed as Personal Representative, which could easily result in conflict. Much like a conservatorship estate, decedent probate requires an application and filing fee, the posting of a bond, a hearing, and various other steps, including extensive accounting procedures, all involving the court and the hiring of an attorney at a rate of approximately $250 hourly. If you sign a Last Will and Testament prior to your death, it can greatly simplify the decedent probate process. And if you have a properly funded Revocable Living Trust, decedent probate can be avoided entirely.

Small Estates/Small Estate Affidavits:

If you pass away with an estate valued at less than $40,000, the decedent probate process can be greatly simplified through the use of a Small Estate Affidavit. Although there is still a filing fee, an attorney is still required, and there are other various steps and requirements to work through, a Small Estate proceeding can be a much less painful form of probate for your family. However, it is still best to avoid probate entirely, even via Small Estate Affidavits, by taking the steps to complete some proper planning before you pass away.

Gun Trusts also provide additional benefits for NFA firearm owners. NFA Firearms are firearms regulated by the National Firearms Act (NFA). They include suppressors, machine guns/automatic weapons, short-barreled rifles, short-barreled shotguns, as well as other destructive devices. A Gun Trust allows firearm owners to privately and legally own NFA firearms without supplying the CLEO (Chief Law Enforcement Officer) signature, fingerprints, and photographs. A properly drafted Gun Trust also allows you to designate, in the trust, other individuals who can lawfully possess the NFA firearms without them registering with the ATF, thereby avoiding accidental felonies when another person possesses an NFA firearm registered to you.

MoKaN Gun Trusts offers three levels of trusts to meet the needs of firearm owners in Missouri, Kansas, and Nebraska. Please visit our website at mokanguntrusts.com for more detailed information about Gun Trusts.

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In most jurisdictions, if you hire an attorney, the prosecutor will agree to amend the moving violation to a non-moving violation if you agree to plead guilty to a lesser charge. Normally the fine amount will be somewhat higher than the original fine issued for the speeding ticket or other moving violation. And, of course, you also have to pay the attorney fee. But, ultimately, by paying the higher fine and the attorney fee, you will avoid having a moving violation appear on your driving record. This can help reduce increased insurance rates and keep your driving record clear.

Our office handles traffic tickets in Lee’s Summit, Kansas City, and some of the other surrounding jurisdictions. We also has a great network of other attorneys who handle tickets in some of the other jurisdictions that require attorney court appearances and we can always give you a good referral if you receive a ticket from a jurisdiction we don’t handle.