 | Linda Kirby has been a practicing attorney in Wichita since 1988, and is running for Sedgwick County District Court Judge in the 2012 Primary. Previously, Ms. Kirby was Professor of Law at the University of Richmond. She teaches seminars on Executor's Training, Estate Planning, Pre-Marital Agreements and Retirement Planning. Ms. Kirby focuses her legal practice in the areas of Estate Planning, Pre-Marital Agreements, Wills, Trusts, Probate and Tax. She is the author of The Executor's Guide. Ms Kirby can be contacted at (316) 686-2000. Her office is located at 6135 East Central, Wichita, KS 67208, and her website is at www.LindaKirby.com.
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Legal
2002-11-01 15:46:00
Re-writing wills
ANSWER: Dear Reader, let me first clear up some common misconceptions about Wills. A Will "goes through probate." Your Will is your written instructions to the court about who is to handle your estate at your death and how it is to be managed and distributed. You only nominate an Executor in your Will; the court must appoint the Executor after a hearing. The Executor has no authority to act until the court has made that appointment.A Will is not a document of title. Your assets and property are not transferred directly by your Will to the new owner. Instead the court must order the transfer of probate assets after all expenses, debts, taxes and other costs are paid.In answer to your specific question about re-writing your Will, because your family's needs have changed since your children were young, you should review your estate plan with an attorney who customarily does estate planning. While, your children no longer need a guardian or a conservator, there are other reasons that a Will may be important to you. You indicated that everything you own would go to the survivor at the first death because you and your husband own everything jointly. First, many of us believe that we own everything jointly only to discover too late that such was not the case. Also your estate plan may not deal with what will happen to your estate after both you and your husband have died. And you may not have considered your grandchildren in your estate plan. When you speak with an attorney remember: Some wills are more effective and cost saving than others. Write or review your own Will with the following time- and money-saving provisions in mind. An effective Will should include:-Your full legal name and your residence. All court proceedings must have your correct legal name in addition to any other names in which you own property. Your residence determines where your Will may be offered for probate.-The full legal names of your (potential) heirs, their whereabouts and their relationship to you. These are the people who would receive your probate estate at your death if you did not have a Will. Listing their names does not mean that you are giving them any part of your estate. It does assure that you have made the gift provision of your Will with all your potential heirs firmly in mind. Your heirs include your spouse, children, grandchildren or parents. If you do not have relatives who are this close, your brothers, sisters, aunts, uncles or cousins will be your heirs.-The full legal names and whereabouts of the persons you wish to nominate as your Executor, and if you choose, Trustee, Guardian of minor children and Custodian under a Uniform Transfer to Minors Act. These can be one person or different people. The court will accept your nomination unless a person is shown to be unfit. Once appointed, each person will be responsible as a fiduciary and will be held accountable by the court.-The full legal names and whereabouts of the persons you wish to nominate as alternate Executor, Trustee, Guardian or Custodian in case the first person cannot serve. If you do not name an alternate and your first choice cannot serve, the court will have to appoint someone else to serve. It is far better that you make your preferences known.-Special provisions to take advantage of the Unified Credit allowed against the Federal Estate and Gift Tax in the estates of both spouses for larger estates.-A clear description of the gifts you wish to make. These provisions are the reason for writing the Will in the first place, but are often given little thought. Very careful consideration should be given to the types of assets that you own, the difficulties in managing and transferring those and the need of the people who will be receiving those assets.-Gifts of specific personal property. The personal and household items, furniture, clothing, jewelry, family photos have a special protection under the law to be sold only as a last resort for debts, taxes and expenses, if they are given separate and apart from the Residue. If these personal things are given as part of the balance of the estate called the Residue, they are subject to sale in the same manner as all the other assets for payment of debts, taxes and expenses-Gifts of specific real estate. Specific parcels of real estate have special protection of the law to be sold after the Residue but before gifts of specific personal property for debts, taxes and expenses, if they are given separate and apart from the Residue. If these specific parcels of real estate are given as part of the Residue, then they are subject to sale in the same manner as all the other assets for payment of debts, taxes and expenses.-Gifts of the balance of the estate. The balance of the estate is called the Residue. If the Residue is given to two or more people, this gift is often given in percentages or proportions. The Residue often is required to pay all the debts, expenses and taxes on the entire estate unless special care is taken in writing the Will. -Full legal names and whereabouts of those who are to receive each gift. -Full legal names (or clear legal description such as descendants, per stirpes or per capita) and whereabouts of those who are to receive the gifts if the first person named does not survive.-Instructions regarding who pays taxes on gifts. For convenience, taxes are often paid from the Residue. Because many estates pass property outside of probate by joint tenancy and with beneficiary designations, the taxes for those assets are paid by the person who would have received the. You may wish to have a more evenhanded requirement that each person to pay his share of the taxes for what he receives.-Provisions that avoid conservatorships if it is possible that minors or disabled adults might receive gifts. Trusts, Uniform Transfers to Minors provisions and specific powers for the Executor may be used.-Powers of the Executor. A well-written will can give the Executor power to avoid unnecessary costs and greatly ease the handling of the estate. There are many possible powers; only a few of the most commonly used are listed here.-To sell real estate without court supervision.-To sell personal property without court supervision.-To make tax elections without court approval.-To serve without bond.-To settle legal cases for or against the estate.-To use discretion in distributing assets.-To distribute assets to a minor or disabled person without a Conservatorship.-To invest assets of the estate in a less restricted manner than the statutes require.-The date the Will was signed. -Name and address of the attorney who wrote the Will. The court requires the name of the scrivener of the Will in the pleadings. You should have to search no further than the document to find that name. However, this does not mean that the attorney is to be the Executor. Evaluate your own situation to determine the best person to serve as Executor.-The date the Will was signed. -Identifiable signatures of at least two competent Witnesses at the end of the Will -Self-Proving clause signed by the same Witnesses and notarized.If your Will is missing any of these provisions, discuss it with your estate planning attorney. A cautionary word of about self-drafted Wills created with a computer program. These computer-generated Wills are, by definition, simplistic, cookie-cutter Wills programmed to be one-size-fits-all. These Wills may or may not fit your unique set of family relationships, individuals' needs and your personal inventory of assets. The laws of each of the 50 states is different with regard to Wills; some states are community property states, such as Texas and California, and some states are common law states, Kansas is one of these. These laws have important consequences for your estate. A Will written without an understanding of these laws may have unintended consequences for your loved ones. A computer-generated Will that fails to include important powers for the Executor or that creates a confusion is far more expensive to handle than a well-written Will that follows the laws of the state where it will be probated.
