Last Will and Testament

Your Last Will and Testament is a written legal document that you sign before a Notary Public and two witnesses.  It becomes effective at your death and directs how your property will be distributed.  Usually, it is effective to transfer only assets held in the sole name of the person who died.  It is important to have a Will for several reasons.  First, it allows you to name a Personal Representative, who will be the person responsible for seeing to it that your final bills are paid after you die and distributing your property to your designated heirs.  Second, if you have minor children, a Will lets you nominate a person or persons that you would like to serve as Guardians for your children after you die.  Finally, a Will lets you decide how your assets will be divided and distributed after your death – not the State or a Probate Court.

Trusts

To create a trust , the owner of property transfers property to either himself or another person who is designed as "Trustee." The Trustee is responsible for managing and holding the property for the benefit of a beneficiary or beneficiaries.   There are many types of trusts that are used for different estate planning purposes, such as charitable giving after death, federal estate tax planning, or even Medicaid asset protection planning.  The most commonly used trust is a Revocable Living Trust, whose primary purpose is to allow you to manage your assets during your life and avoid Probate administration after your death.

Durable Powers of Attorney

An important part of estate planning is preparation for possible incapacity. A common and effective way of achieving this preparation is through the use of durable powers of attorney for financial and business matters and durable powers of attorney for medical matters.

A power of attorney is a grant of authority by a principal to a person whom the principal appoints as his attorney-in-fact (or "agent.") By the power of attorney, the principal confers upon the attorney-in-fact the authority to perform certain specified acts, or a broad range of acts, on behalf of the principal.

A durable power of attorney is a written power of attorney which contains words expressing the principal’s intent that the authority conferred on the attorney-in-fact will continue and not be affected by the principal's subsequent incapacity.

Durable Powers of Attorney for Financial and Business Matters

Normally, durable powers of attorney for financial and business matters are effective immediately upon execution. Sometimes, however, a principal is reluctant to delegate broad powers to anyone while he or she is still competent. He or she may want to execute a "springing" power of attorney, which becomes effective only upon the disability of the principal and not before. Springing powers of attorney can cause problems, however, because of the need to prove the disability of the principal before the power of attorney becomes "effective.' No one wants to admit that they have declined to the point of being unable to take care of their medical and financial decisions. Typically, the attorney in fact is a spouse, child or trusted friend who does not want to be the "bad guy" in taking away a principal's dignity by obtaining the necessary documentation that the principal is now incapacitated.

Durable Medical Power of Attorney

A medical power of attorney for health care authorizes a trusted person (or persons) to make health care decisions in the event you are unable to make them. Typically, you empower your family to help you and to be in charge of medical decisions when you are unable to represent yourself.  A medical power of attorney also allows you to clearly express to the doctors and health care providers your wishes regarding the use of life-sustaining medical procedures when death is imminent.

HIPAA - Medical Privacy

Medical privacy regulations under HIPAA may prevent hospitals, nurses, doctors, insurance companies, etc. from disclosing medical information to relatives and friends. Your durable powers of attorney documents should waive this privacy restriction for those you want told about your medical situation.

Powers of attorney are not "just forms." They are powerful documents which should be customized to meet each person's estate planning goals and family situation. You should consult with a knowledgeable Elder Law attorney about these matters.

Declaration of Guardian in the Event of Incapacity

Under Missouri law, you may designate in your durable powers of attorney the person(s) you would like to have appointed as your guardian if guardianship is unavoidable. It can also be used to prevent the appointment of certain persons you do not wish to have serve as your guardian. Usually, a set of properly prepared durable power of attorney documents avoids the necessity for a guardianship proceeding. The documents also assure that your family is in control, not a judge or other stranger.

Probate
Decedent's Estate

When a person dies owning property in the state of Missouri, a probate estate may be necessary to see that the decedent's last bills are paid and the decedent's property is distributed to the proper persons. Probate has been established to protect the rights of creditors and heirs or beneficiaries.

Contrary to popular belief, a Last Will and Testament does not avoid probate. If an individual takes advantage of Missouri's liberal laws regarding non-probate transfers, probate can be avoided. Trusts, joint accounts, pay on death accounts, transfer on death titling and beneficiary deeds and other beneficiary designations are the most common methods to avoid probate.

If the person has a Will, the provisions of the Will govern the distribution. If a person dies without a Will, the statutes of Missouri govern who will receive the property. The person who sees to the winding up of another's estate is called the Personal Representative. The Personal Representative is granted "Letters" by the court which authorize that person to see to it that the decedent's final expenses are paid and the property is distributed.

Probate can be a lengthy, expensive process, but that is not always the case. For small estates under $40,000.00, simplified procedures are in place. Someone can sign an affidavit of small estate to take possession of a small amount of property as long as any bills are paid. There is also a simplified process if the estate is small and there is a surviving spouse who will likely be entitled to any property not already jointly owned.

Probate fees and expenses are mostly determined by statute in Missouri. There are court costs to open the estate. A bond may be required of the personal representative depending on the amount and type of assets. The personal representative and attorney are allowed fees, which are generally determined according to statute, to be paid from the estate.

An attorney can be of great assistance in plowing through the waters of probate, as the forms and procedures can be complicated.