10 Things You Must Know
Before Meeting a Lawyer for your Last Will and Testament
Do I need a Will?
Persons who die without a Last Will and Testament are known as dying “intestate.” This means their property and the other matters relating to their death (from a legal standpoint) are decided according to the laws of intestate succession as applies to the state in which they resided at the time of their death. The reason a person wants a Last Will and Testament is so they may decide what happens with their affairs (to the extent the law allows) after their death. You decide who gets what. You decide who handles the business affairs. You decide whether and how they are compensated. You decide much of the manner in which things occur.
#1 – Know your Assets, generally
You will need a general idea of what your assets are before meeting with a lawyer to create your Last Will and Testament. This knowledge of assets includes how your assets are titled. You will need to know whether or not they are jointly titled. If they are jointly titled, you will need to know who the other parties on that license or deed. You will need a general idea of the value of your assets; be realistic. Further, you will need to know whether a transfer on death T.O.D.) or end of life designation has been made. If you own real estate (open land or a home), you will need to know whether or not you have created a beneficiary deed. Know the specifics of your assets before meeting about your Last Will and Testament.
#2 – Know your Debts (what you owe) generally
There may be claims made by creditors (people or entities who think you owe them money) after you die. They will have a period of time under the law to make claims against your estate. Your estate is the total amount of property you “own” after your death. Your end of life planning should take into account what these debt claims may be so as to properly plan. Often, the goal is to make those who come after you, namely your family and heirs, as well off as can be.
You will want to know who all may make a debt claim against you or your estate. You will want to know whether that debt would include your wife, children, business partners, or others. Different planning is needed if the debt is claimed against you alone, or whether other people are considered owing that debt along with you.
You will need to know the general amount of your anticipated debt claims. You will need to know whether or not they are claiming a lien against you. Such liens would also include a judgment in court against you for money. The lien would include a mortgage. The lien might include unpaid medical bills, or child support. Determine your debts in advance of planning your Last Will and Testament.
#3 – Identify your Heirs
In making a Last Will and Testament you will want to know who all you wish to receive some benefit (some of your stuff) after you die. However, you will also need to know who all could make a claim if you did not have a Will. These are your “heirs.” Your heirs would include a wife, whether they are a real wife or simply claiming they are your wife or spouse. Your heirs would include all of your children or those who might be your children, whether they are a legitimate child or an illegitimate child. You will need to identify your brothers and sisters as potential heirs. This is because it is likely the probate court whether you have a Will or do not have a Will, will insist these people be identified.
#4 – Choose Several Personal Representatives
There will be a person who does the business of handling your estate after you die. This person can be known as an executor, an executrix, an administrator, an administratix, or a personal representative. Here are the differences:
- Executor = a male person who is named in your Will to take charge of your Estate. The Executor is responsible for wrapping up your paperwork and other legal affairs and distributing your assets to whomever you name in your Will.
- Executrix = a female who fulfills the role of an Executor.
- Administrator = the person in charge of your Estate should you die without making out a Last Will and Testament (intestate)
- Administratrix = a female who fulfills the role of an Administrator.
- Personal Representative = a general term for either an administrator or executor, male or female.
Executors, Executrixes, Administrators, and Administratrixes are all subject to the powers of the probate court in the county in which you resided at the time of your death. Each is a fiduciary, meaning they are held to the highest standards of trust and responsibility to act according to your wishes, as expressed in your Last Will and Testament, irrespective of their personal beliefs or preferences.
There is an important difference between an Administrator and an Executor. Administrators only have powers given per state statute. Executors have all those powers, plus the powers and authority you give them (to the extent you can give power) in your Last Will and Testament. This additional sets of powers can include the specifics of assets sales, assets given as part of your Codicil, and other matters you include in your Will.
Each of these types of persons essentially fulfills the same role. You will have this type of representative whether or not you complete a Last Will and Testament. It is in your best interest to personally choose that person and two alternatives.
I recommend three personal representatives (Executors or Executrixes) be chosen. The reason is that it is possible that one or more of the persons you name will be unable to serve at the time of your death. They may die before you. They may suffer some health ailment making them unable to complete the tasks. They may move away and be remote. A first, a second, and a third choice is wise for naming a personal representative (Executor).
A personal representative needs to be a person who is somewhat responsible. Trust is critical for these positions. There will be paperwork to do. They will need to be diligent. They will need to be trustworthy. They do not have to be a person who inherits under your Will. They do, have to be living at the time of your death.
#5 – Decide Whether you will Compensate your Executor
Your personal representative (Executor) does a lot of work. It has been my experience that the person completing their Last Will and Testament simply concludes their Executor will do the work out of the kindness of their heart. However, ask anyone who has ever served as a personal representative, executor, or administrator of an estate. It is a lot of work. Executors and Administrators seldom desire to serve a second time.
My recommendation is you should compensate your Executor with money. The way compensation is made is a separate term in your Last Will and Testament indicating that the Executor should receive an amount of money compensation for the work needed as executor, or personal representative. I generally recommend between $3,000.00 and $5,000.00. I think they will earn every penny.
#6 – Decide Whether your Executor will Serve with or without Bond
Your Will will request from the probate court that your personal representative serve with or without bond. I generally recommend the Executor shall serve without a bond as one would imagine you would choose somebody who is trustworthy. A bond would be a form of insurance contract to make sure that the person handling paperwork for your estate does not misappropriate the money. The bond would insure against that likelihood.
#7 – Decide Who gets what Percentage of your Assets
You will need to decide what percentage each person you wish to give some of your assets will get. One does not in any Last Will and Testament name specific assets or amounts of money to go to specific persons. This is because it is nearly impossible to know in advance what your worth will be at the time of your death. Even persons who die just after making their Last Will and Testament may be unable to anticipate the amounts of medical bills, or a potential claim from their death itself. You may be richer. You may be poorer. You will not know. So … Wills give percentages or fractions of your total estate value to various persons. You will need to decide who gets what percentage.
#8 – Decide Per capita versus Per stirpes
The law takes into account the possibility that one or more of your heirs will die before you die. You need to decide, if that happens, does your Executor redistribute the percentages so that your other heirs receive a larger portion of your estate (per capita), or should the portion what would ordinarily be given to your, now deceased, heir be distributed to their heirs. It has been my experience that most persons choose a per stirpes designation. You will need to decide in advance.
#9 – Decide whether you want a Codicil
Missouri law allows a form to be completed at the end of your Last Will and Testament giving small items of personal property to people you designate. The authority to make a Codicil is contained in Missouri Statute 474.333.
This can be done more informally than the rest of your Will. You can change your Codicil without involving a lawyer, or notary, or witnesses. You may start thinking about who all you want to give what regarding your small items of personal property.
#10 – Decide Whether you Want a Medical Directive
It is common to have, along with a Last Will and Testament, a directive indicating whether or not you want lifesaving treatment to be used if there is possibility of recovery for you. Whether to get a medical treatment directive is a personal choice you should make in advance, lest others will make the choice for you when you are unable to voice your desire.
Answers to your Questions…
Should I use a lawyer or should I look to the internet or a store to buy a Last Will and Testament?
I never recommend using a Will from the internet or from a store. This is likely to cause problems. That “Will” you are saving money on by buying it from a store may not comply with the law, and therefore be useless. Wills are some of the least expensive items lawyers handle, and are of the greatest value. This is not an area in which you should try to save money.
Moreover, your meeting with your lawyer will involve considering ways to save you and your estate money, a much greater amount of money than is expended for the lawyer’s time. The few hundred dollars cost of a Will may save you thousands or tens of thousands dollars in money, later.
Moreover, you may make non-probate transfers that would negate your desires by using a cheap store bought or internet Will. In short, those internet Wills and store bought Wills may not do what you want them to do.
Last, you are unique. You may have other problems that neither this article nor the internet store bought Wills will anticipate. It is best to talk with a professional.
Should I use a Last Will and Testament or should I get a Trust?
A Trust is typically made for a high net worth person (exceeding fourteen million dollars in assets). This is to save on the estate or “death tax.” Missouri does not have an estate tax. There is a federal estate tax. This can be found in 26 U.S. Code, Subchapter A Sections 2001 – 2058.
Most persons who get a Trust do not need one. Trusts can cause a lot of problems. I would certainly recommend contacting a lawyer before deciding to get a Trust. Be cautious of a lawyer who is too anxious in recommending you get a Trust. You may not actually need a Trust.
Do I get to decide what happens to my children through my Last Will and Testament?
It is normal in a Last Will and Testament to put a paragraph as to what your desires are for who should serve as a guardian/custodian for a minor child after your death. It is important to note; you do not have the power to decide who will actually be the guardian or custodian of your minor children after you die. A court will make that decision based upon what is in the best interest of each child. In essence, this is a persuasive paragraph to attempt to discuss with the judge (who will be reading it after your death) to convince the Judge to name the guardian or custodian you prefer. A judge has the ultimate power, backed by the law. You do not.
I would (in this paragraph regarding who would serve as your custodian or guardian for your minor children) include why you believe this adult would provide stable, continuous care for your child. Specify the relationship between your child and this adult. Explain their moral fitness to take care of your child.
Should a husband and wife have one Will or two Wills?
Virtually all probate court jurisdictions do not allow multiple party Wills. In short, the husband will need one Will and the Wife will need one Will, separately.
Do I name my pets in my Will?
Pets are not persons under the law. Pets are items of personal property. The designation of who should get your pet, like a minor child custodian, is a matter of persuasion. Pets do not have titles so a non-probate transfer at this time is not possible for a pet. Who gets your pet is decided after your death by people who are living. Still, it is okay to put in a Last Will and Testament your desires with respect to your pets.
Where should I keep my Will?
A Will is like money, a copy is of little good. The probate court that handles your Last Will and Testament will want to have your original Will. Store your Last Will and Testament where others know where it is and can access it. I do not recommend a safety deposit box, unless a person other than you, has access.
When should I change my Will?
A Will should be changed when a major life event happens. The events include:
- marriage,
- new children,
- divorce,
- adoption,
- a change of your personal representative, or
- a large change in your assets or debt.
I hope these items of information are helpful to you. If you have a question regarding a Missouri Will, feel free to contact my office and we can discuss the particulars.
- Juris Doctor
- Trial Attorney