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               As an experienced estate planning lawyer St. Charles, I spend much of my time explaining to clients what estate planning is and how it works.  Estate planning is the use of legal documents to not only distribute your assets when you pass away, but to name people to make decisions for you if you become disabled and/or incapacitated.

Overview of Estate Planning Documents

Common estate planning documents include a living trust, last will and testament, medical power of attorney, healthcare directive and financial power of attorney.

A living trust can help you avoid probate and provide rules about when your beneficiaries receive their inheritance.  An example would be creating a provision where your beneficiary only receives their inheritance when they reach a certain age.  That age is up to you and depends on your specific situation.

As one of the top estate planning lawyer St. Charles, you can count on me to also review the purpose of having a last will and testament, which is another document which can distribute property when you pass away.  If you have a living trust, the will usually leaves the property to the trust, not directly to a beneficiary.

Power of attorney documents allow you to name a spouse to make financial and healthcare decisions for you if you become incapacitated.  An example would be naming your adult children to do banking for you if you had dementia.  A medical power of attorney could name the same adult child to work with doctors if the dementia advanced to a point where you were considered mentally incapacitated by a doctor.

Choosing the Right Estate Planning Lawyer

You should feel comfort with the skill level and personality of any lawyer you meet with.  Many attorneys practice in too many areas of law, which reduces their effectiveness in all areas of law that they practice.  Therefore, you should focus on choosing a lawyer that practices almost exclusively in this area.

Making estate planning decisions is intensely personal due to everyone having different family dynamics, levels of wealth and health and concerns about the ability of children to make smart decisions if they inherit your nest egg.  There are many different components to determining how your estate plan is created and it’s important that we discuss all of the aspects that help you identify these components.

An initial meeting to discuss your situation will include who should be in charge of distributing your inheritance, who your beneficiaries are and specifics about their personality and what assets you have.  Our focus is always on identifying client concerns and worries, client goals and educating clients on how the documents we are drafting resolve their concerns and accomplish their goals.  If you’re in need of an estate planning lawyer St. Charles, contact Legacy Law Center today.


Keep Your Original Will In A Safe Place…

Keep Your Original Will In A Safe Place…

Keep Your Original Will In A Safe Place…

I recently had a case where the aunt of a client had passed away but we could only find a copy of her will.  With some research, we were able to discover that the original will, drafted in 1985, was kept by the Nevada attorney after it was drafted and signed by the aunt.  That was apparently his office policy and some attorneys do have this policy (my firm does not).  When the Nevada attorney retired a few years ago, he apparently sent the original will to the decedent aunt by mail, with a note explaining he was retiring and to keep the original will in a safe place.

However, the original will was either never received by the aunt, or, more likely, at some point, got thrown out.   In the copy of the will, my client was listed as the alternate beneficiary and alternate executor after her uncle and her mother, who had both predeceased the aunt.  Accordingly, when aunt died my client was to be the executor and to receive everything in the estate.  Luckily, most everything in the estate had been placed into a trust and my client was named the alternate trustee of that trust.

The only asset left out of the trust, and thus part of the probate estate was a pesky bank account, having a value of just under $15,000.

Since the probate court requires an original will and we could not locate it, we had to file an affidavit from the client explaining the circumstances of when and how the original will was lost, what steps were taken to try to locate the original, who else assisted in this process and the circumstances of the Nevada attorney sending the will and it never being found.

We also filed a Petition to Admit a Copy of a Will in St. Charles County Probate Division and had to set the matter for hearing.  It’s a somewhat uncommon issue, so there was a little confusion between the court staff about what needed to be filed.  We ultimately filed everything that was needed and were able to secure a hearing date after a few months.

There was a bit of pressure on both my client and myself.  If the will was not admitted, then the aunt would have been deemed to have died intestate (without a will).  Under Missouri law, my client and each of her many cousins would be entitled to an equal share of the bank account.

At the hearing, my client was put on the stand and had to give testimony related to the lost will, including the facts related to the last few months of her aunt’s life, when she had moved to and lived in St. Charles County.  My client was very close to her aunt and this was upsetting for her having to recite these things in open court, including the care she took of her aunt around the time of her passing.

Happily, based on our filings and my client’s testimony, the court correctly found there was sufficient evidence to admit the copy of the will as the original and the proceeds of the account were, pursuant to the terms of the will, distributed solely to my client.

Now that this matter is behind us, I figured this story would make for a good example of the importance of keeping your original will, and all of your original estate planning documents, in a safe place.

Missouri Probate Steps: Inventory Filing…

Missouri Probate Steps: Inventory Filing…


This blog article discusses the the Missouri probate step of filing an inventory.

So a person has passed away and either they had a will or did not have a will.  Either way, a probate may need to be opened in the county where the decedent died to determine who is entitled to the assets of the decedent.  This process is called probate.

The first step in probate is someone or several people file an Application for Probate and for Letters Testamentary (if there is a valid will) or for Letters of Administration (if there is no will).  It is these Letters that allow the person to act as the Personal Representative (same as executor) or the Administrator (same as executor but only in situation where there is no will) and to deal with the assets of the probate estate.

The next step is filing an Inventory within 30 days of the Letters being issued.  This process can be tedious because it is here that you are tracking down what the decedent had but what it’s approximately worth.  It’s a complicated process.  Hopefully you have an attorney helping you through it.  As a quick aside, in Missouri you can have a Supervised estate or an Unsupervised estate.  The Unsupervised estate, in the right situation, is the easiest way to get through probate because the court does not directly monitor all of the transactions of the estate.  The catch is you need to hire an attorney in order to be allowed to open an Unsupervised estate.   My advice?  Hire an attorney.

Back to the Inventory process.  This can vary widely by county.  In St. Louis County, the Inventory is checked over by an auditing department and that is primarily due there is much more probate fraud in St. Louis County than just about anywhere in the state.  St. Charles County has a terrific probate department and they are very helpful.  They take more of a hands off approach to Inventories that are filed and will usually call if something is missing or incorrectly filed.  Probate courts in Warren County, Lincoln County and Franklin County tend to have less estates filed and often do not have their own forms.  In such a case, it is usually okay to use the forms found on the St. Louis County website, although it is always best to call ahead.

Before you can even file a document called an Inventory, however, you have to know what is included in the estate.  A bank account in the decedent’s name only with no beneficiary named will be part of the estate and must be included in the inventory.  With the letters in hand, the executor can find out the account numbers and the value.  They should also be receiving account statements by mail or online by this time as well.  If an account has the decedent’s name and someone else’s name, it avoids probate and is owned by the surviving account holder.  If there are beneficiaries named on the account, it will also avoid probate.

This is pretty much the same as with all accounts, including IRAs, 401K, non-qualified investment accounts (i.e. a Scottrade or Edward Jones account) and life insurance.  Missouri allows decedents to transfer property after death to TOD beneficiaries.  Check the title of all vehicles, including cars, boats, motors and trailers.

What about a home?  If a house is titled in the decedent’s name alone then you need to see if a beneficiary deed was recorded prior to their death.  If so, the house will avoid probate and go to the beneficiaries named on the beneficiary deed document.  If not, the house will be part of the probate inventory and an appraisal may be necessary.  Some counties allow the tax assessment figure to suffice.

Finally, personal property, unless of some value and/or titled property does not usually need to be accounted for in the Inventory.  However, and this is a big however, it should ALWAYS be inventoried by the executor to avoid a fight among the beneficiaries / heirs.

In conclusion, the Inventory notifies the court what is included in the estate and notifies the beneficiaries or heirs of the estate as well since they are to receive a copy of the filed Inventory document.  Once the Inventory is filed, the next step is to deal with creditors and the debts of the decedent.  I will discuss this step in a future blog post.


Where Do I Keep My Estate Plan?

Where Do I Keep My Estate Plan?

Where Do I Keep My Estate Plan?

New clients of Legacy Law Center often arrive for our first conference with their existing estate plan documents. More often than not, these documents are out of order and have the look of paper that has never been read. They are sometimes still in envelopes that have never been opened. So we spend the first five minutes of the office unbundling all of these documents to see what these documents say.

A policy at our office is that finished estate plans are always put in binders and every document is tabbed in the binder so that it can be easily found. Part of our final instructions also informs the client where to keep their documents.

Those instructions are always the same. The originals in the binder should always be kept in a safe place, and either locked up or not locked up depending on the client’s preference and circumstances. Some clients want them locked away and that works fine as long as the person named in the document as power of attorney / executor / trustee has a copy and knows how to get the locked up originals.

I am not a huge fan of safe deposit boxes at banks. For one thing, if you need to get those documents in a pinch and it’s after business hours or a Sunday, you’re out of luck. Another issue is the cost. I just don’t think the utility of a safe deposit box is worth the cost. Clients can use safe deposit boxes, however, if they want to. The better bet is to have them tucked away in a safe at home. That will likely be cheaper, still provide security and resolve the issue of obtaining the documents at any time.

At our office, we also give the clients a set of copies and a PDF scan of the signed estate plan. The latter version makes it very easy to get a copy to the people they have chosen to be in charge in the future. All our clients have to do is forward the PDF to them via email or if they prefer, on a thumb drive or CD. Whatever works for them.

We also always advise our clients that they should immediately provide a copy of their signed healthcare power of attorney and healthcare directive to their primary care physician (their “PCP”) and any specialists they see (cardiologist or neurologist for example). A copy of the documents should always be out in a place where it can be grabbed quickly, such as a kitchen drawer or a file in a home office. Finally, we advise clients to put a copy in their car. If you get a call that your spouse has been taken to the hospital and you are at work, all you have to do is drive to the hospital. Bring a copy when you travel as well. Let’s face it, accidents are more likely to happen when you are trying out scuba diving in Aruba than when you are sitting at home reading the paper. So bring powers of attorney documents with you on your trip.

Your documents can be changed at any time as long as you have capacity, so keep in mind if you have a falling out with your executor or your power of attorney that you can put someone else in charge if you change the documents. It’s a very easy process and more affordable than most people assume.

The bottomline is that you should protect your estate plan from prying eyes and being lost by putting them in the place you think is best. If that’s the bank or a drawer at your house, it doesn’t matter. Just make sure you know where they are and that the people in charge of your life if you can’t be have a copy as well. If you do that, you’ll ensure that your estate plan can be followed as you originally intended.

Prince Has Died: What About His Estate?

Prince Has Died: What About His Estate?

Purple Rain


As we all know by now, legendary musician Prince unexpectedly passed away recently at 58.  While the circumstances of his death are unclear, what is also unclear is who will get his estate, whether he had a will or a trust set up and the particulars of who will be in charge of what has been estimated to be a $300 million estate.

Most celebrities are surrounded by a team of professionals looking out for their best interests.  In the case of legal matters, Prince undoubtedly had a trusted lawyer to assist him with legal matters.  Part of the advice I would have given Prince some time ago would be to get his affairs in order, to get an estate plan.  That would have been an easy recommendation considering his age, wealth and the fact that he was not married.

Since he died living in Minnesota, the laws of that state will largely govern the administration of his estate.  If he died without a will, that could be a big deal, because the intestacy laws of the state would control and Minnesota allows half-relatives to inherit.  He was married and divorced but, as in most states, ex-spouses do not inherit in a situation where there is a will and only inherit if a will specifically states that they do.

Most people close to Prince knew him as a smart man who was very aware of his circumstances and that weighs in favor of him having created an estate plan.

If Prince created a trust, then the trust would name a trustee in charge of all the assets held by it.  It would also name beneficiaries to receive property and that could be right away or over time.   Prince was also known to be a philanthropic person, so it’s possible he left funds for the creation of a foundation or several foundations for issues close to his heart.  When people create a will they can also leave money directly to a charity or to a church either as a specific bequest (the “Little Red Corvette” for example) or as a general bequest (a set amount of money).

If Prince did create a trust or several trusts, were they funded with his assets?  This is yet another issue.  Funding a trust requires that titled assets like accounts, homes, vehicles, stocks and life insurance be set up so that the trust either becomes the owner right away or becomes the owner at death through payable on death and transfer on death beneficiary designations.

Another issue for his estate would be estate taxes.   Unfortunately, Minnesota (unlike Missouri – hooray!) has an estate tax which appears to kick in after an asset exemption of nearly $2 million dollars at a top rate of 16%.  Since I am not a Minnesota licensed attorney, I can’t talk too much about that, but needless to say, the state will likely pick up a large check from Prince’s estate.

On a federal level, the estate tax exclusion for an individual dying in 2016 is $5.45 million (up $20,000 over 2015).  The tax owed will depend on what estate tax planning if any he put in place, but the estate tax rate is 40% based on the expected size of his estate.  That means 40% over the exempt amount of $5.45 million could go to Uncle Sam.  Wow.

Don’t feel too bad for Prince’s heirs and beneficiaries.  That still leaves several hundred million dollars for their benefit.  That amount doesn’t include the future value of his music which potentially could double or even triple the value of his estate.   How the federal government and the state of Minnesota value these assets for estate and inheritance tax purposes might be the subject of litigation and more complexity.

As an estate planning practitioner (and admitted fan of Prince’s early work) it should be interesting to see what happens on this subject in the next several months.  Hopefully, Prince, like anyone reading this, planned ahead.