A common question in estate planning is “do I need a will?” The short answer is “yes,” although the reason why is probably different than you think.
As explored in this post, an individual who dies without a will is said to die intestate. A person who dies intestate will have his or her estate distributed according to Missouri’s intestate succession law. In sum, the intestate statute provides the default rules to distribute the estate (property) of an individual who dies without a will, giving particular preference to the surviving spouse.
Importantly, the estate of an individual who dies intestate must pass through probate. Probate is undesirable for several reasons. First, probate is expensive. Any estate (assets such as real estate and personal property) that passes through probate will lose a portion of its value due to court costs and fees. In many cases, that can mean thousands of your hard-earned dollars passing to the government and other parties simply because of poor planning.
Probate is unfavorable for other reasons. Probate takes a long time: a minimum of 6 months, but often over 1 year. Probate is also public: your assets and debts are public information to any interested party. Finally, your family has limited control over the process.
If a person dies with a will only, they are said to die testate, and, while the will determines distribution, probate will still be necessary. Therefore, in addition to a will, we recommend maximizing the use of non-probate transfers of real and personal property, and/or a revocable living trust. Each of these devices avoids probate, helping to save you money and time.
It is important to have a will as a catch-all or “safety net” for property that is forgotten or omitted from an estate plan. For instance, if an individual has a will and property is accidentally omitted from a non-probate transfer or trust, the will catches the property and distributes it according to the terms of the will. However, if an individual does not have a will and property is accidentally omitted from a non-probate transfer or trust, the property will be distributed according to the intestate statute. Thus, the bottom line is that everyone needs a will.
If you have additional questions about wills or are ready to have a will prepared, call or come visit the estate planning attorneys at the Paul Law Firm. Consultations are always free!
Non-Probate Transfers: Personal Property
Non-Probate Transfers: Real Property