Wills

 

Will – What is it?

A will is simple.  It’s a lawful paper that states who gets your property and gets to take care of your minor children when you pass away.  Each state has its own rules when it comes to determining how a Will should be interpreted and enforced.

One the superstitions out there is that a Will keeps your heirs out of court when you die.  This is not true.  A will still has to go through the probate process to have lawful effect.  It is feasible to title your home in many others means to make sure that probate is not essential (view our part on Alternatives to Wills and Trusts).

Will – Who Can Make One?

Any person who is at least 18 years old and of sound mind can make a will.

What about Witnesses?

Witnesses are not required to have a valid Will.  However, most states require two witnesses for a Will to be “self-proving.”  That means that the probate process will not require the signatories to actually testify that they signed the Will and that the terms of the Will are valid.  For

When is a Will valid in Kansas?

In Kansas, a will is lawful when it is authorized and the signature was seen by 2 individuals (see above about witnesses). A will can be altered via a document called a codicil.  This amendment comes with the exact same formalities as when the will was authorized. Because of that, it is typically easier to replace a will with a brand-new will.

A will is “self-proving” if you have two witnesses and your signature is recognized by a notary public.  The more recent will then cancels out any older Will.  It is considered best practices to go ahead and destroy any older wills as you don’t want someone to find an older Will and file it with the court instead of your most recent Will.

Kansas courts identify wills executed in various other states if effectively done under their statutes.

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Wills – What If You Die Without One?

Well, Kansas law has rules that govern what happens to your property.  Generally, it will go to your spouse (if married) and then your children, then your parents, then distant relatives and finally the state (called escheat). This process is known as intestate secession.  Our estate legal representatives can certainly help you go through the proper Probate procedure.

Property – Who Can you Give this To?

In general, you can give your property to whomever you want.  There are a couple of exceptions to this, per Kansas law.  The exceptions govern any contractual arrangements (such as debts, like a mortgage).  If you own your assets free and clear of any debts, then there are a couple of exceptions, the biggest of which is known as the spousal exception.  That is, you cannot give all of your property away and leave your spouse destitute (unless your spouse consents to it, of course).  Instead, your spouse has certain rights in property.

Wills – Is it Better to Have a Will?

Here are some reasons it is better to have a will:

  • You could save a bunch of cost by waiving bond and providing for independent management.
  • You could claim which you would like to obtain your valued individual possessions in a list described in the will. You could change the listing without altering your will.
  • Only you determine who obtains your property.
  • You could nominate a guardian for your kids.
  • You can offer minor or impaired kids in a trust without the court needing to monitor by assigning a conservator to take care of exactly what they would certainly obtain.
  • You could establish up a trust for your family members (called a testate trust; this allows part of the estate preparing procedure).
  • You can minimize some death taxes.
  • You could state what you wish done with the problems you receive if you perish in an accident induced by another person.
  • You will know – with certainty – that you have prepared for your family.  With this comes PEACE OF MIND.

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How Long is a Will Legal?

A will will remain legal until it is changed or canceled by you.  The exception to this is if you provide benefits to your spouse and then later get a divorce.  The divorce would take precedent and remove those benefits from the Will.

Changing Your Will – When Should You Do it?

A great rule of thumb is that if your family situation changes, such as divorce, marriage, adoption of children, disability of a member of your immediate family and, of course, any new kids.  Other situations include a substantial change in your assets, including retirement plans, businesses, etc.  Finally, if you move to another state, it’s a good idea to have your Will reviewed to make sure it is still in compliance.

I don’t want a Will – What Can Take the Place of a Will?

  • Residential property or savings account titled jointly with one more (view our part on Alternatives to Wills and Trusts).
  • Life insurance plan and some annuities are means to own property and provide for their transition after death to named recipients.
  • Non-probate transitions such as recipient deeds for real estate, pay-on-death regulations on bank accounts and specific various other assets, and transfer-on-death arrangements on car titles, stock certificates, and broker agent accounts.
  • Individual retirement accounts (IRAs) and employer retirement plans with employee contributions are ways to provide for their transfer to named beneficiaries upon your death.
  • Property held by a revocable living trust (but you should still have a “pour-over” will).
  • Kansas’s law of intestate succession.

These and other techniques (not discussed here) can take the place of a Will.  But please talk with legal counsel before instituting any of these as there are several pitfalls that can easily occur. Further, a Will is a great idea to cover all of your property that are not able to utilize transfer of death deed (i.e., joint tenancy) purposes.

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Will – Who can Draft One?

Any capable adult can by law, however there are lots of downfalls and, if correct technical language is not used, certain legacies or the entire Will could come to be void. Try talking to an attorney.  It will be well worth your time.

The Eastman Law Firm

4901 W. 136th Street, Ste. 240
Leawood,
Kansas
66224

Phone: (913)908-9113
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