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Common Estate Planning Terms in Wills and Trusts….

Common Estate Planning Terms in Wills and Trusts….

Common Estate Planning Terms in Wills and Trusts

Estate planning is an area of the law with plenty of legalese. The placement of certain in documents like Missouri wills and especially special needs trusts attorney St.Common Estate Planning Terms in Wills and Trusts
Estate planning is an area of the law with plenty of legalese. The placement of certain in documents like Missouri wills and especially special needs trusts attorney St. Peters, Missouri can make a huge difference in the document.

Here are some commonly used estate planning terms in wills and trusts.

Wills

Testator / Testatrix: The person creating the will. Formally, a male creating a will is a testator, whereas a female is referred to as a testatrix.

Executor: The person or persons named in a will who will administer the estate when the testator dies. The person in charge. In Missouri and other states, an executor is called a personal representative.

Beneficiary: The person(s) named in a will that the testator wants to inherit their property. In a trust, this person is also referred to as a beneficiary.

Heir: The persons who will receive your property if you do not have a will in place when you die. Dying without a will is called “dying intestate” and each state, including Missouri has a list of heirs that receive your property when you die intestate and in what order. For example, in Missouri, many people don’t know that if a spouse passes away and does not have a will, all non-joint property owned by the deceased spouse goes partially to the children, if any, and partly to the surviving spouse. All receiving property are referred to as heirs.

Bequest: A specific item listed in a will, other than real estate, to be distributed at death as a gift. Example: “I give all of my silver coins to Joe.” The bequest is only the silver coins, not any others and Joe is the beneficiary of the item.

Devise: Real estate given at death, received by a devisee. Example: “I give my 10 acre farm to Joe.” The testator has devised the farm to Joe, the devisee.

Bequeath: Means that the testator is giving property to someone other than a person. Example: “I give my book collection to the St. Charles County Library.”

Bond: A policy that requires the executor to insure the estate, usually for the value of the estate. The idea is that if the executor runs off with the money, the heirs / beneficiaries are protected by the bond in place. A testator can state that no bond is required in their will.

Real Property: Land of any acreage and/or a home. Also includes anything affixed to the property. Example: Joe has a 10 acre farm, which includes his home. He also has a pole barn which is attached to the land. All are examples of real property.

Tangible Personal Property: Any property that you can actually touch. Example: Loose cash is personal property. Cash in a bank account is not personal property.

Intangible Property: Any property that you cannot touch. Example: Mutual funds that you hold in an account are intangible property.

Titled Property: Property that may or may not be tangible that has a registration. Example: A bank account. It is titled in your name, has an account and you get statements every month in the mail. Also an insurance policy because it has a policy number, a named insured and beneficiary.

Revocable Trusts

Grantor: The person creating the trust. Also referred to as a Settlor or Trustor.

Trustee: An individual or individuals listed in the trust to administer the trust for the grantor. The grantor and trustee are often the same person.

Beneficiary: Same as with a will, a person listed to receive assets in a trust.

Estate Tax: A tax levied either by the federal government and some states when a person passes away. The estate tax is much less of an issue because the estate tax exemptions are much higher than they used to be.

Estate Tax Exemption: An amount of money that a person is allowed to have when they pass away that does not result in federal estate tax being levied. In 2018, for a person this amount is approximately $11 million dollars. Any amount above that, without proper planning in place, is subject to taxation.

No-Contest Clause: A provision in a trust (or a will) that states that if a beneficiary to the trust contests their inheritance, they risk losing that inheritance if they file a lawsuit. These provisions vary greatly, but are enforced by courts and are a good way to ensure that beneficiaries don’t litigate your estate when you pass away.

These are just some of the terms that you would come across in a will or trust lawyer O’Fallon, MO. Creating documents with an estate planning lawyer is just part of the process. The real important part is understanding how they work and what the terms mean. Don’t get discouraged, we are all masters of our own knowledge and what’s natural to you would be unnatural to your attorney!

 

Do I Need An Attorney For Probate In Missouri?

Do I Need An Attorney For Probate In Missouri?

Do I Need An Attorney For Probate In Missouri?

    Yes.  You do need an attorney in Missouri for probate.  Here is why:  First, in order to proceed with an independent probate administration, state law requires it.  Under RSMo. 473.787 (3) (link:  http://www.moga.mo.gov/mostatutes/stathtml/47300007871.html), an independent personal representative (executor) shall “secure the advice and services of an attorney” on legal questions arising in connection with matters related to the opening of a probate estate, applying for an the issuance of letters testamentary or administration, preservation of estate assets, the inventory of the probate estate, dealing with creditor claims and their payment or resolution, filing of tax returns, making distribution and the closing of the estate.

So basically Missouri law requires it if you want to proceed independently.  The alternative is to proceed with a supervised probate estate, which is often specifically not called for either under the will of the decedent.   Because the last will and testament controls the actions of the personal representative, often an attorney must be hired.

Secondly, a probate estate should be opened with the assistance and services of a probate attorney because opening, administering and closing an estate is complex.   That’s a practical consideration.  In addition, probate matters can be very emotionally draining for families.  If you’ve ever lost a loved one, you know how emotionally charged that situation can be.  If you’re the executor named in the will,  you’re often going to feel a lot of pressure to get things done quickly.  I’ve seen this happen in the closest of families.  Family members often don’t understand that just because there is money in the estate, that money just can’t be immediately divided and checks cuts.

Also, remember, the problem is that you owe a “fiduciary duty to the persons interested in the estate” (i.e. the heirs or beneficiaries).   There is no incentive for you to handle the estate alone and in fact, if you do so and then claim you were not up to the task, you can be held personally liable for any of your errors.   Frankly, a person handling an estate without any knowledge how to do so is already engaging in a breach of their fiduciary duties.

Finally, remember the probate process in Missouri is complicated and requires you to devote time to handle it.  Very few estates are as simple as people believe.  Assets cannot be found, creditor claims pop up that were previously unknown.  Deadlines must be met and the court has little to no mercy on those that claim they aren’t attorneys.  With the help of an attorney, those deadlines can be met and headaches can be avoided.

Your best bet is to work with a probate attorney and let them handle all of the filings.  The best part?  You’ll still be involved in the process and still earn a statutory fee (usually the same amount as the attorney) for serving.

5 Reasons You Need an Estate Plan Regardless of Wealth

5 Reasons You Need an Estate Plan Regardless of Wealth

 

 

5 Reasons You Need an Estate Plan Regardless of Wealth

There are at least 5 reasons you need an estate plan regardless of whether you are wealthy or not.  This is a popular myth in estate planning, that it’s only for those with a lot of money.  In reality, every adult should have an estate plan and the older you get the more crucial it becomes.

So here is why estate planning and wealth have no connection.

#1  If you have minor children, you need to name guardians for them.  

If you have minor children, I want you to imagine who would take care of them if you were gone.  Aunt Leslie?  What is Aunt Leslie doesn’t want to take care of them or she is gone.  Who is the next option?  Does your partner agree?  The reality is that if you or if you are married, if you and your spouse pass away with minor children, SOMEONE will have to be named guardian for them.  Under Missouri law, anyone can file to become the guardian.  But what if you could have a simple document drafted where you said in advance who you wanted to be the guardian?  That is part of your estate plan.  It’s called a guardianship nomination and we can create the document by itself or make it part of your will.  The best part is that you can discuss it with your chosen guardians in advance, make sure they would accept and then plan for having alternates in case they can’t act.

#2  So you don’t own much, but chances are you own something.  

If you don’t own much, guess what?  You still need an estate plan.  The good news is that it’s a simpler plan.  Say you and your spouse have a home with about $25,000.00 in equity.  You have some small retirement accounts and a car.  Do you really want to have your family spend a lot of time, money and effort navigating their way through probate when you can devise a much cheaper option and have it ready to go in two weeks?  Probably not.  We can draft wills just in case you need them, but if your plan is to give everything to your adult kids equally and the kids get along, we can also probably tell you how to avoid probate easily and potentially without a will.

#3  Who will take care of you if and when you become incapacitated and/or disabled?

We don’t like to think about this, but we’re all going to get old.  Not one of us can avoid this fate and life changes.  But we don’t know when or how our lives will be in twenty or thirty or fifty years.  We just don’t know.  If you become incapacitated, however, life will move along regardless.  Bills will still have to be paid, tax returns must still be filed, banking will still have to be done and decisions and choices that we make every day (and take for granted) will still exist.  But who makes them if you can’t?  Answer:  If you get an estate plan, the agent named in your power of attorney.  Contrary to popular belief your spouse cannot make many decisions for you simply by reason of them being your spouse.  You need a power of attorney for that.  And we’ll plan for your spouse being incapacitated as well by naming alternates.  If you trust your kids (hopefully you do) then we can name them as alternates.  If not, we have a plan for that as well.

#4  Planning for disability / incapacity / health problems.  

If you become incapacitated you might have other problems.  Healthcare decision making.  Who will do that?  Answer:  Your agent as named in your healthcare power of attorney.  Say you’re in a coma for a long period of time, decisions have to be made, medical records have to be reviewed.  This is, of course, regardless of your financial status.  The document that allows this to happen is a healthcare power of attorney.  You absolutely need to have this document.

#5  Have an end of life plan.

Americans are living longer than ever before.  But not necessarily the greatest quality of life at the end of their life.  It’s tough to think about but in the age of Medicare, healthcare is about quantity not necessarily quality.  That could mean that near the end of your life a bunch of procedures are done that are not necessary or that cannot heal whatever health problem you have.  Part of any estate plan should be a living will / advanced directive.  In this document, you give a set of instructions to your healthcare power of attorney as to which treatments that you don’t want if you are terminally ill.  You’re not in that condition today, but by creating this document, you are planning for it in the future.  And the effect it has is that it lets your agent know that it’s okay to withhold these treatments.  Better still, it is not an all or nothing document.  There are provisions that allow you to keep trying treatments as long as they are making progress for you.  If not, then you have informed your agent so know they should be withheld.  No guesses need to be made and they’ll have peace of mind knowing that you went to the trouble of creating a legal document to make it clear what you wanted.  That’s powerful and it’s why you need a healthcare power of attorney and living will / advanced directive.

 

 

 

What are the fees for probate in Missouri?

What are the fees for probate in Missouri?

Probate involves several types of fees and costs, which fall primarily into four categories.

First is a bond premium.  The probate estate may have to pay for a bond for the personal representative (executor) to guarantee they will properly administer the estate.  This requirement can be waived, but if not it is one of the costs of probate in Missouri.

Second is the cost of publication.  A probate estate must publish notice to creditors announcing that an estate has been opened and that they have only so much time to make a claim against the estate.

Third are court costs.  Every estate must pay costs based upon the size of the estate being administered in probate.

Finally, the largest category of expenses and fees for probate in Missouri are a personal representative’s commission and attorney fees.  Missouri law provides a minimum fee schedule for each, which is based upon the size of the estate.  Compensation higher than these minimum amounts may be approved by the court or by consent of all distributees.

The fees are:

5 percent of the first $5,000

4 percent of the next $20,000

3 percent of the next $75,000

2.75 percent of the next $300,000

2.5 percent of the next $600,000 and

2 percent of everything more than a million

Now, you can start to see how expensive probate can get with this example…

Mary, a widow, dies with a will and an estate of $500,000.  Her son, Rich, is named the executor and since the matter is so complicated Rich hires Dave the Attorney to handle the matter in probate.  Now, based on the above, Rich AND Dave are each entitled to the following commissions:

$250 + $800 + $2,250 + $8,250 + $2,500 = $14,050 EACH for a total of $28,100, which does not include the cost of a bond, publication or court costs.

Now you can see why avoiding probate is a great idea, just on cost alone.  Not to mention the time, energy and aggravation of having everything in the estate up in the air for at least six months to more likely a year, if not longer.

The easiest and best way to avoid probate is to set up a revocable living trust.

money and probate

What happens if I don’t have a will in Missouri?

What happens if I don’t have a will in Missouri?

When you execute a will, you are deciding who gets your stuff when you pass away.  You get to name a person called an executor (in Missouri we call them a “personal representative”) who is going to make sure the stuff you want to go to certain people actually gets there.

Now, if you don’t have a will, the state of Missouri has what are know as intestacy statutes (to die “intestate” means to die without a will) and those statutes determine who gets your stuff, since you never made a will and wrote that down yourself.  Problem is, in not having a will you are allowing the state to dictate who gets your things and that may not be the same people that you want to have those things.

That is exactly why you want to have a will.  They sound fancy but in reality they really aren’t.

Another key aspect of a will for parents with minor children is that they can name guardians for their children in case they passed away.

What is the difference between a living will and a will in Missouri?

People often get confused with the differences between a living will and a will in Missouri.  As explained above, wills primarily deal with who gets your stuff when you pass away.   Living wills deal with end of life situations and what treatments you want withheld if a doctor determines that those treatments cannot heal you.  The purpose of a living will is to give instruction to your family as to what treatments you do or do not want done if you are near death, persistently unconscious or have a terminal illness.  And they have nothing to do with who gets your stuff!  However, they are two of the documents you need to have a complete estate plan.

last will and testament