As the joke goes, the medical doctor asks the lawyer if he gets pestered about everyday legal problems at cocktail parties, the same as the doctor does about all sorts of everyday physical ailments. The attorney readily responds that he answers all questions immediately, and then sends the person making the legal inquiry a bill for his services, affirming for the doctor that doing so amazingly ceases his being questioned at such future gatherings for free legal advice. Two days later, the doctor receives the attorney’s bill for professional services!
Seriously, attorneys and other professionals regularly get asked questions within their areas of practice. And as attorneys, everyone expects us to answer a myriad of questions about estate planning and probate matters. Unfortunately, the area of estate planning is quite complex, but no one forces you to elect a complicated estate plan. If you do nothing, in fact, your state of domicile at the time of death will have the terms already in place.
In Missouri, by statute the estate of a decedent (the “dearly departed”) passing without a Will is distributed according to the laws of “intestate distribution” as follows:
A. If married at the time of passing, the surviving spouse shall receive:
1. The entire intestate estate if there is no surviving issue (children and the children of deceased children) of the decedent; or
2. The first $20,000 in value of the intestate estate, plus one-half of the balance of the intestate estate, if there are surviving issue, all of whom are also issue of the surviving spouse; or
3. One-half of the intestate estate if there are surviving children, one or more of whom are not issue of the surviving spouse.
B. The part not distributable to the surviving spouse, or the entire intestate property if there is no surviving spouse, shall be distributed as follows:
1. To the decedent’s children, or their descendants, in equal parts; or
2. If there are no children or their descendants, then to the decedent’s father, mother, brothers and sisters or their descendants in equal parts;
3. If there are no surviving children or their descendants, parents, siblings or their descendants, then to the grandparents, aunts and uncles or their descendants in equal parts; or
4. If none of the above, then to the great-grandparents or their descendants, in equal parts; and so on, in other cases without end, passing to the nearest lineal ancestors and their children, or their descendants, in equal parts, provided, such person must be related to the decedent at least as closely as the ninth degree, the degree of kinship being computed according to the rules of the civil law; that is, by counting upward from the decedent to the nearest common ancestor, and then downward to the relative, the degree of kinship being the sum of these two counts, so that brothers are related in the second degree; or
5. If there is no surviving spouse or kindred of the decedent entitled to inherit, the whole shall go to the kindred of the predeceased spouse who, at the time of the spouse’s death, was married to the decedent, in like course as if such predeceased spouse had survived the decedent and then died entitled to the property, and if there is more than one such predeceased spouse, then to go in equal shares to the kindred of each predeceased spouse; or
6. If no person is entitled to inherit as provided in this section the property shall escheat as provided by law.
While the State of Missouri provides a basic framework for the distribution of assets owned at the time of death, there are many matters which are not addressed in the statute, especially if special needs are present, certain frictions exist between the decedent and other family members, or other non-blood or non-marriage relationships exist. By taking affirmative actions, you can more closely control, subject to possible challenge and approval by the appropriate probate court, not only how your assets are distributed, but to whom and when. Below are some of the characteristics and requirements to have a valid Will. There are many variations, and you can have a Trust in your Will that takes effect upon your passing. The points below are only to offer a framework for your consideration. (Future articles will address trusts, powers of attorney and other estate planning instruments.)
1. Purpose. A Will is a written document which directs property owned at the time of a person’s death is to be distributed. A person may also nominate guardians and conservators for your minor children in a Will.
i. Estate – The property you own in your name alone at your death.
ii. Personal Representative – The person in charge of your estate. May be referred to as the Executor or Personal Representative.
iii. Trust – Property set apart, sometimes in a Will, for a certain purpose.
3. Requirements. To make a valid Will in Missouri, the following conditions have to be satisfied:
i. In writing;
ii. Minimum 18 years of age;
iii. Of sound mind (“testamentary capacity”);
iv. Signed by the “testator” or “testatrix” (the person making the Will);
v. Witnessed by at least two “qualified” persons, e.g., not a beneficiary, over the age of 18, and be themselves not incapacitated, etc.; and
vi. Missouri statute provides for relief from the foregoing if physical, but not mental, limitations exist.
4. Limitations. A person can give their property to anyone by use of a Will, subject to superior rights, including:
i. The decedent’s spouse; and
ii. Creditors, including judgment creditors and taxes.
5. Duration. A Will is valid until changed or revoked by the person making the Will.
Estate planning may be quite straightforward, or extremely complicated. While many people are in similar situations vis-à-vis either the size of their estates or family dynamics, no two estate plans are ever exactly alike.