IMPORTANT PROVISIONS TO INCLUDE IN YOUR LAST WILL AND TESTAMENT
Creating a last will and testament is an important aspect of estate planning. But your will should include certain provisions that make managing your estate easier for your executor.
As a wills lawyer Maryland Heights, Missouri, I regularly counsel clients about what should and should not be included in their last will and testament.
This article will discuss five (5) key provisions that you consider making part of your will.
#1 THE NO CONTEST CLAUSE
In a nutshell, a no contest clause says that if a beneficiary attempts to set aside the will, contest its provisions or challenges the validity of the will, then that beneficiary can be deemed to have predeceased the testator, i.e. the contesting beneficiary can lose their inheritance.
These provisions are enforceable in Missouri courts and are strictly construed. They are not fool proof depending on the circumstances, but do have the effect of weeding out many claims that might be filed with very little supporting evidence or which challenge a will that is actually very fair in its distribution of assets of the estate.
They are especially important in families where a challenge is expected from one of the beneficiaries, regardless of what the document says.
#2 ARBITRATION OF DISPUTES
A person creating provisions in their last will and testament can consider whether they want to make sure any disputes are arbitrated outside of a court room. In arbitration, a panel of arbitrators decide the merits of any disputes over a will which may occur between the beneficiaries or between the executor and one or more of the beneficiaries.
The advantage of probate arbitration is that the dispute can usually be resolved quicker and more cheaply than through the courts, which could take a few years or longer. Just make sure you include that the result of the arbitration is binding, meaning the ruling of the arbitrators can be enforced in a court of law.
#3 INDEPENDENT ADMINISTRATION OF THE ESTATE
Missouri allows estates to be administered by personal representatives either independently or supervised. An independent administration of an estate in Missouri is a much more hands off process in dealing with the probate court. There are still filing requirements, but the court does not have to approve of all transactions occurring in the administration of the estate. For example, say an estate had a house that needed to be sold. In a supervised estate, the executor would have to file a petition to get approval by the probate court for the sale to occur. In an independent estate, this is not necessary. Generally speaking, it’s much easier and cheaper to administer an estate independently.
Thus, a last will and testament, in most cases, should include a statement that the testator intends the administration of their estate to be independent. This is easily done.
#4 WAIVER OF BOND
In Missouri, a bond is required in probate unless the will specifically states the executor can act without a bond or the beneficiaries under the will agree to a waiver of the bond requirement. A bond simply covers the value of the assets in the estate in the event that the executor steals all or some of the assets.
The problem with these bonds is they can be expensive and obtaining them can be an extra step that delays the administration of an estate. For this reason, in the right circumstances, an explicit statement in the will that a bond will not be required to administer the estate should be part of the document.
#5 POWER OF APPOINTMENT
A power of appointment provision in your last will and testament simply says that if an executor is unwilling to act, they have the power to appoint an executor in their place. A simple fact of life is that many people named in documents are unable to or unwilling to act as an executor when the time comes to do so. That’s why naming alternates and second alternates is crucial, but there’s always a chance they may not want to act either. In such a case, the power of appointment allows them to name someone that will act in their place.
Now, this may not be ideal in a given family dynamic. The person appointed may not have been chosen by the will creators for a reason. Nevertheless, in a situation where several people are trustworthy and able to act in the family, the power of appointment ensures they can be appointed and there’s not a vacancy in the position.
In such a situation, someone has to be appointed by the court and it’s not unusual for an estate to remain unadministered due to no one acting as the executor. The power of appointment, in the right circumstance, can ensure this problem is avoided.
The myth of the form will is just that. Every family has different circumstances in which the above provisions and many more should be considered or not considered for a particular family member’s last will and testament.
Legacy Law Center is an Estate Planning, Probate, and Elder Law Firm in St. Charles County, Missouri. Our firm can assist you with setting up a FREE CONSULTATION to discuss your last will and testament at our office. Call us today at (636) 486-2669.