 | John Gibson
is a senior partner in the Wichita law firm of Gilliand & Hayes. He has been practicing law for nearly 30 years. In addition to healthcare law his practice includes wills, trusts, estate planning, probate and general representation of individuals and small business. Contact information: Phone:
316-264-7321; Fax: 316-264-8614; and e-mail: jgibson@boyerds.com |
Legal
2001-07-01 12:31:00
Do I need a will?
Answer: Before answering the question, I should briefly address a preliminary topic that usually comes up, that is, by having a will am I causing a probate of my estate? The answer is ‘no’. Whether you have a will or not has no relationship to the necessity of probate. Probate or no probate is determined by the nature of the property and how the property is titled, not by whether or not you have a will. The primary purpose of a will is to designate how and to whom your property should be distributed upon your death. It also allows you to state your choice for a Guardian and Conservator if you have minor children, and to state your desire for who will serve as the Executor of your estate. Let me touch on joint tenancy property. A will affects only property that is in your name alone; that is... property owned solely by you. Property that is in your name as a joint tenant with someone else is transferred automatically, by operation of law, to the name of the joint tenant when you die. With joint tenancy property the transfer is automatic, no probate, and no need for a will. For property not in joint tenancy, however, you likely will need a will.If you die without a will, the property you own in your name will pass to your heirs according to a plan established in the Kansas statutes, known as "intestate (no will) succession". For example, if you are married and have no children, your spouse is your sole heir and will inherit your property by statute. If you have children and no spouse, your children are your heirs and will receive all of your property. If you are married and have children, your spouse is heir to half of your property and your children are heirs to the other half. The common misconception that if you die without a will your wife will receive all of the property that is in your name, even if you have children, can create problems. If you have no surviving spouse or children, the Kansas statutes provide that other more remote relatives will receive your property. If there are no heirs at all, and no will, your property then becomes the property of the State of Kansas. In addition, in the absence of a will, the court will decide who is to serve as the Administrator of your estate and who is to be the Guardian and Conservator should you have any minor children.Many other questions arise regarding wills. Are there restrictions on the way a person leaves property in a will? Is a revocable living trust a substitute for a will? How long is a will valid? Can I prepare my own will from a "will kit"? The answer to these and other questions will be addressed at a later time.
