Have you written your will? What happens if you don’t? Do you need a trust? This article discusses the types of issues your attorney will address when advising you about your estate plan.
Laws vary by state and your situation is unique to you, so before making a decision you should consult an attorney who is educated in elder law.
What a Will Does
The US government calls a written will a “practical first step in estate planning, which makes your intentions clear about:
- Any inheritance you leave for your loved ones
- Guardianship for your minor children or other dependents
- Any charitable donations that you would like made
- How you want your property, money, assets, and other valuables distributed after you die”
If you die without a will, your estate will be handled in probate court and distributed according to state laws.
Virginia Intestate Succession Laws
For example, the Code of Virginia, effective October 1, 2019, states that:
"The real estate of any decedent not effectively disposed of by will descends and passes by intestate succession in the following course:
- To the surviving spouse of the decedent, unless the decedent is survived by children or their descendants, one or more of whom are not children or their descendants of the surviving spouse, in which case, two-thirds of the estate descends and passes to the decedent's children and their descendants, and one-third of the estate descends and passes to the surviving spouse.
- If there is no surviving spouse, then the estate descends and passes to the decedent's children and their descendants.
- If there is none of the foregoing, then to the decedent's parents, or to the surviving parent."
The statute continues, stating distribution rules if there are no surviving spouse, children, or parents.
Kansas Intestate Succession Laws
The Kansas Statute is available at this link. The 2017 Kansas code calls states the following, with more detail available in the statute in cases where there is no surviving spouse:
"59-504. Surviving spouse. If the decedent leaves a spouse and no children nor issue of a previously deceased child, all the decedent's property shall pass to the surviving spouse. If the decedent leaves a spouse and a child, or children, or issue of a previously deceased child or children, one-half of such property shall pass to the surviving spouse."
What a Will Does Not Do
In its article “Introduction to Wills”, the American Bar Association explains that a will does not control the transfer of property for which a title or beneficiary designation states the right of survivorship.
USA.gov describes a trust (or trust fund) and its effects as follows:
“a legal entity that allows a person (the grantor, donor, or settlor) to transfer assets to another person or organization (the trustee). Once the grantor establishes the trust, the trustee controls and manages the assets for the grantor or for another beneficiary—someone who will ultimately benefit from the trust.”
USA.gov lists these common reasons for setting up a trust:
- Providing for minor children or family members who are inexperienced or unable to handle financial matters
- Arranging for management of personal assets, if you become unable to handle them yourself
- Avoiding probate and immediately transferring assets to beneficiaries upon death
- Reducing estate taxes and providing liquid assets to help pay for them
- The terms of a will are public while the terms of a trust are not, so privacy makes a trust an appealing option.
An estate planning attorney can help you determine whether a trust is appropriate for your situation.
Reasons to Review Your Existing Will or Trust
If you already have a will or trust, you may want to review it to ensure it is still the best expression of your wishes. Attorneys often recommend reviewing your estate plan every three to five years or when one of the following occurs:
- Move to another state or country
- Change in health
- Significant life event for you or someone you love, such as marriage, divorce, new domestic partner, death, birth, adoption, addition of stepchildren
- Change in preference of heirs
- Change in value of estate
- Change in tax laws
Where to Store Your Will or Trust
Ask your attorney where is the best place to store your will or trust.
Many attorneys recommend against storing the documents in a safe deposit box, since opening a safe deposit box after the death of the lessee can be legally complicated and difficult. Laws for opening safe deposit boxes vary by state:
You should tell the executor of the will where it is being kept.
How Care is There Can Help
Care is There can help you with the logistics of having your will or trust written or reviewed. We can:
- Connect you with an attorney educated in elder law
- Help you make and keep an appointment with your attorney
- Help you distribute the documents to the places recommended by your attorney
Resources for Writing or Reviewing a Will or Trust
Contact Care is There today for a free consultation!