Wills & Trusts
A last will and testament and a living trust serve as the foundation of every family’s successful estate planning strategy. If you reside in the west Kansas City, Kansas, metropolitan area, start meeting your estate preservation goals by scheduling a consultation with attorney Tracey D. Johnson at our law offices in Lenexa.
To get started, here are some answers to some of the most frequently asked questions about wills and trusts:
What happens if I die without a will?
If you don’t make a will or use some other legal method to transfer your property when you die, state law will determine what happens to your property. Generally, it will go to your spouse and children or, if you have neither, to your other closest relatives. If no relatives can be found to inherit your property, it will go to the state.
In addition, in the absence of a will, a court will determine who will care for your young children and their property if the other parent is unavailable or unfit to do so.
If you are part of an unmarried same-sex couple, your surviving partner will not inherit anything unless you live in one of the few states that allows registered domestic partners to inherit like spouses: California, Connecticut, Maine, New Jersey, and Vermont.
Must I leave something to my spouse and children?
Disinheriting spouses. The law protects surviving spouses from being left with nothing. If you live in a community property state, your spouse may automatically owns half of all the property and earnings (with a few exceptions) acquired by either of you during your marriage. You can leave your half of the community property, and your separate property, to anyone you choose.
In all other states, a surviving spouse has a legal right to claim a portion of your estate, no matter what your will provides. But these provisions kick in only if your spouse goes to court and claims that share.
If you don’t plan to leave at least half of your property to your spouse, either through your will or outside it, you should consult a lawyer — unless your spouse willingly consents in writing to your plan.
Disinheriting children. Generally, it’s perfectly legal to disinherit a child. If, however, it appears that you didn’t mean to disinherit a child — the most common example is a child born after you made your will — then the child has the right to claim part of your property.
Can I use my will to name a guardian to care for my young children and manage their property?
Yes. If both parents of a child die or become otherwise unable to care for a minor child, another adult — called a “personal guardian” — must step in. The personal guardian will be responsible for raising your children until they become legal adults. You and the child’s other parent can use your wills to nominate someone to fill this position. To avert conflicts, you should both name the same person. The nominated personal guardian must still be approved by the court, when the will is probated.
You can choose that same guardian to manage property that you leave to your minor children or you can name someone different. You can name a “property guardian,” a “custodian”, or a “trustee” to manage the property:
- Name a property guardian. You can simply name a property guardian to manage whatever property the child inherits, if there’s no other mechanism (a trust, for example) to handle it. The guardian will manage the property until the child reaches the age of 18.
- Name a custodian under the Uniform Transfers to Minors Act (UTMA). In every state, except South Carolina and Vermont, you can choose a custodian to manage property you are leaving to a child. The custodian will step in to manage the property until the child reaches the age specified by your state’s law — 18 in a few states, 21 in most, and 25 in several others.
- Set up a trust for each child. You can use your will to create a trust for any property the child inherits and to name a trustee to handle the trust property until the child reaches the age you specify.
- Set up a “pot trust.” If you have more than one child, you may want to set up just one trust for all of them. This arrangement is usually called a pot trust. You name a trustee to decide what each child needs and to spend money accordingly.
Can my will be challenged after I die?
Very few wills are challenged in court. When they are, it’s usually by a close relative who feels somehow cheated out of a share of the deceased person’s property. To get an entire will invalidated, a person with the legal right to challenge the will must go to court and prove that it suffers from a fatal flaw, such as, the signature was forged, you weren’t of sound mind when you made the will, or you were unduly influenced by someone.
Contact The Law Firm
The Law Office of Tracey D. Johnson, LLC, is located in Lenexa, Kansas, and serves clients throughout the Greater Kansas City area in Johnson County, Wyandotte County, Platte County, Leavenworth County and Jackson County.