Markell Estate Planning & Elder Law FAQ

Serving the O'Fallon, Wentzville, MO area

What Happens if You Die Without A Will?

If you die intestate (without a will), your state’s laws of descent and distribution will determine who receives your property by default. These laws vary from state to state, but typically the distribution would be to your spouse and children, or if none, to other family members. A state’s plan often reflects the legislature’s guess as to how most people would dispose of their estates and builds in protections for certain beneficiaries, particularly minor children. That plan may or may not reflect your actual wishes, and some of the built-in protections may not be necessary in a harmonious family setting. A will allows you to alter the state’s default plan to suit your personal preferences. It also permits you to exercise control over a myriad of personal decisions that broad and general state default provisions cannot address.

What Does a Will Do?

A will provides for the distribution of certain property owned by you at the time of your death, and generally you may dispose of such property in any manner you choose. Your will does not govern the disposition of your property that is controlled by beneficiary designations or by titling and so passes outside your probate estate. Such assets include property titled in joint names with rights of survivorship, payable on death accounts, life insurance, retirement plans and accounts, and employee death benefits. These assets pass automatically at death to another person, and your Will is not applicable to them unless they are payable to your estate by the terms of the beneficiary designations for them
Aside from providing for the intended disposition of your property upon your death, several other important objectives may be accomplished in your will.

  • You may designate a guardian for your minor child or children if you are the surviving parent and thereby minimize court involvement in the care of your child.
  • You may designate an executor (personal representative) of your estate in your will and eliminate their need for a bond. In some states, the designation of an independent executor, or the waiver of otherwise applicable state statutes, will eliminate the need for court supervision of the settlement of your estate.
  • You may choose to provide for persons whom the state’s intestacy laws would not otherwise benefit, such as stepchildren, godchildren, friends or charities.

What Does a Will Not Do?

A will does not govern the transfer of certain types of assets, called non-probate property, which by operation of law (title) or contract (such as a beneficiary designation) pass to someone other than your estate on your death. For example, real estate and other assets owned with rights of survivorship pass automatically to the surviving owner. Likewise, an IRA or insurance policy payable to a named beneficiary passes to that named beneficiary regardless of your will.

Does a will need to be probated?

Yes. All wills need to be approved by the probate court. However, it may be unnecessary to use someone’s will if the person does not have any assets which did not immediately transfer upon his/her death.

What is the purpose of a Will when I have gone to great lengths to make transfer on death designations to avoid probate?

While it is always good to avoid the probate process as much as possible, there are almost always instances where the deceased either overlooked some asset when making transfer on death designations, or where the deceased acquired property after doing their estate plan that does not have a transfer on death designation. Additionally, it is always possible that, if your death is caused by someone or something, your estate may sue the person/entity that caused your death. In this instance, your will dictates where the proceeds from such a lawsuit would go.

What is the difference between a will and a living will?

A will is a device wherein you dictate where your assets go after you die. You can also designate who cares for your minor children and make funeral arrangements. A living will is really a misnomer and should be called a health care directive. This document tells medical professionals what types of health care decisions you would like made on your behalf if you become incapacitated. For example, if you are in a coma, how long do you want to remain on life support?

Can I give an inheritance to some children, but not others?

Yes. Nothing in the law requires you to give anything to your children when you die.

Trusts

Trusts are legal arrangements that can provide incredible flexibility for the ownership of certain assets, thereby enabling you and your heirs to achieve several significant personal goals that cannot be achieved otherwise. The term trust describes the holding of property by a trustee, which may be one or more persons or a corporate trust company or bank, in accordance with the provisions of a contract, the written trust instrument, for the benefit of one or more persons called beneficiaries. The trustee is the legal owner of the trust property, and the beneficiaries are the equitable owners of the trust property. A person may be both a trustee and a beneficiary of the same trust.

Annuities and Retirement Benefits

You may be entitled to receive some type of retirement benefit under an employee benefit plan offered by your employer or have an Individual Retirement Account (IRA) or a Roth-IRA. Typically, a deferred compensation or retirement benefit plan provides for the payment of certain benefits to beneficiaries designated by the employee in the event of the employee’s death before retirement age. After retirement, the employee may elect a benefit option that will continue payments after his or her death to one or more of the designated beneficiaries. It is sometimes advantageous to have these plan assets paid to trusts but naming a trust as the beneficiary of such plan assets raises several complex income tax, estate planning and other issues. Naming the surviving spouse as the beneficiary of certain retirement plans and spousal annuities is mandated by law and may be waived only with his or her properly signed consent. Competent estate planning counsel is crucial.

If you are entitled to start receiving retirement benefits during your lifetime, the various payment options will be treated differently for income tax purposes. You should seek competent advice as to the payment options available under your retirement plan and the tax consequences of each.

How often should I update my estate plan?

While there is no single answer to this question, generally an estate plan should be reviewed every 5 years or sooner if a major life change takes place.