Legal Advisor: No time like the present to begin the estate planning process


Legal assistance from Amy Clark/Fort Leavenworth

Discussions about things like estate planning often make people uncomfortable, and the natural result is procrastination. However, this is one area of ​​your life where procrastination can lead to creating a legal mess for your loved ones.

Great peace of mind comes from knowing that you have made the necessary arrangements that will allow the process to go smoothly when the time comes, and the Fort Leavenworth Legal Support Office is here to help.

The information that follows should help answer many of your questions and make them less daunting. In turn, I hope having the knowledge will encourage you to start the all-important process of estate planning.

Are you required to make a will?

No, no one is required to make a will, but if you want to direct many aspects of what will happen to your estate when you die (such as who will receive your assets when you die, who will handle payment administration of your debts and recover the sums owed to you, who will be responsible for transferring your property to your heirs, or who will serve as tutor to your minor children), you will have to draw up a will.

If you die without making a will, in legal terms, you are said to have died “ab intestate”. Each state has its own intestate laws that govern the order and percentages in which family members will inherit based on the degree of family relationship to the deceased. Contrary to popular belief, this does not mean that your state of residence will inherit your property; it simply means that state law will determine which of your relatives will be entitled to a share of your estate.

A common question people ask is, “What is an inter vivos trust?”

A living trust is simply a written legal document that allows a person to transfer ownership of property in the trust during their lifetime. A trust is a separate legal entity somewhat similar to a legal person. This means that the person who created the trust is no longer the owner of the property and that the property that has been transferred to the trust will no longer be considered part of the estate upon the death of the creator of the trust. Rather than passing according to the will, the property will pass according to the terms of the trust.

There are many types of trusts: revocable, irrevocable, special needs trusts, charitable trusts, skip-generation trusts, etc. Each type of trust is different in terms and provisions, and each type is used for different purposes. These types of trusts can often be quite complex and the Office of Legal Assistance does not currently draft these types of living trusts (trusts established during the lifetime of the creator).

However, the Legal Aid Office can help you write a will that directs the creation of a trust upon your death for the benefit of your minor children. This type of trust is called a testamentary trust. Such a trust can be used to hold assets even beyond the age of 21 for a child. Alternatively, a simplified form of trust called custody under the Uniform Gifts to Minors Act or the Uniform Transfers to Minors Act may also be used in the will as a tool to manage property inherited from minor children until until they become adults.

You might also wonder what the tax implications are for different types of trusts.

Some trusts, such as revocable trusts, do not affect what is included in the deceased’s taxable estate (because they can be revoked while the creator is alive). Also, inheritance tax is not always due on the death of a person, whether the deceased died intestate, with a will or with a trust. Whether estate tax is owed depends on a variety of factors such as the state and federal laws in effect at the time of death, the size of the estate, and the deceased’s relationship to the beneficiary.

In some states, including Kansas and Missouri, it is possible to sign and file a deed of transfer of real estate ownership to a new owner, such as your adult child, which becomes effective upon your death. In Kansas these deeds are called Transfer of Death Deeds, in Missouri they are called Beneficiary Deeds. Upon your death, the property does not have to go through probate to be legally transferred to the new owner. In addition to avoiding probate fees, another benefit is that whoever signed the deed retains full ownership rights until death. (They can still sell the property or revoke the deed if they wish.) The beneficiary of the deed has no ownership rights until the death of the person who signed the deed.

Hope this answered some of your questions regarding the estate planning process. We encourage you to make an appointment with the Legal Assistance Office if you wish to discuss making a will or if you have other questions.

The Fort Leavenworth Legal Support office can be reached at 913-684-4944.

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