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Individuals and couples with young or teenaged children face unique hurdles in estate planning.  In truth, many of these considerations apply equally to individuals with children who perhaps have reached the age of majority (eighteen years in Missouri), but are still not fully independent.  At issue are matters ranging from guardianship to financial support to important potential tax-related considerations.  When these matters are adequately addressed, together with the many other more general estate planning considerations, a life and estate plan can be created that assures that a family’s needs are met, their children are supported and cared for and unnecessary taxation is avoided.  Each family situation (and particularly those involving young children), is truly unique, from both a financial and personal perspective.  Accordingly, life and estate planning for each family is unique and an estate plan must be crafted to fit the situation, needs and desires of a particular family.  THE ISSUES: UNIQUE CONSIDERATIONS FOR MINOR CHILDREN 1.  Legal Guardianship.  As every parent of a minor child has surely asked themselves, “Who will take care of the kids if something was to happen to me (or us)?”  If this issue is not addressed directly, a court will determine the most appropriate individual to assume guardianship of children.  As might be expected, this can result in difficult disputes among surviving family members and an emotionally traumatic experience for children, and ultimately it may result in guardianship granted to an individual or couple whom the parents would not have selected or approved.  2.  Legal Minority: Inability to Own and Control Property. Individuals under the age of eighteen cannot own property and cannot undertake many of the tasks associated with property ownership.  Regardless of the very obvious concerns of actual maturity and experience, this legal limitation of minority creates very apparent hurdles for families with younger children.  In the event that property is transferred to children as part of an estate plan, without further clarification or planning, a court-appointed conservator would be designated to hold the property.  While this indeed offers some actual protection to the child’s eventual legal right to the property, it creates some very difficult and problematic issues with respect to control and desired use of the relevant property.   3.  Immaturity. In addition to the legal incapacity of a minor child to own and control property, there are very practical concerns with a young person’s lack of experience and their likely financial, emotional and social immaturity.     Where proper planning has not occurred, a probate conservatorship would be created, as discussed above.  However, once the youngster reaches the ripe age of eighteen years, they will actually get the property—perhaps an even worse outcome than the conservatorship.  This generates numerous concerns due to the child’s general immaturity, their likely susceptibility to undue influences and their station on life.  Many children of this age are yet to even graduate from high school, much less prepared to prudently use any amount of significant money or property. 4.  Maintenance and Needs Associated with Child Rearing. As every parent understands, the cost and effort to raise children is tremendous.  To state the obvious, children are not self-reliant or self-supportive.  Accordingly, in the event of a parent’s death (or incapacity) there must be in place a means of providing for the needs of their children.  These needs often include daily maintenance, health care, educational and recreational expenses, and college tuition).

Does Having a Will Keep You Out of Probate Court? | Schleiffarth Law Firm LLC Property that you own when you die is typically controlled by the terms of your Will, if you have one.  There are numerous exceptions to this principle (such as the use of trusts, beneficiary designations and other planning) that can effectively help someone avoid probate. A Will, when prepared and signed properly, will direct where your assets go—whether to family members, friends, a charity or somewhere else.  However, many people mistakenly believe that having a Will effectively keeps their property and assets out of probate—believing that probate is only for people that have no Will.  This is simply untrue.  While a Will is effective at authoritatively directing the distribution of assets, such distribution is accomplished directly by the probate process and is subject to the cost and time required. Even with a Will, property would typically go through probate (or a similar court process) unless some additional planning has taken place prior to death.   Fortunately, there are many estate planning options and tools to effectively avoid probate while accomplishing additional goals, as well.  A Will can be an important component of planning—but a Will alone will not keep your assets out of probate.

Having a Trust as part of your estate plan can help you avoid probate and reach better and smoother outcomes when compared with simply having a Will. However, it is important to be aware of various types of Trusts, including: revocable living trust; irrevocable trust; special needs trust; testamentary trust; life insurance trust; asset protection trust. Moreover, it is important to understand the various types of available tools (i.e. the various types of available Trusts) and when they might be appropriate. For example, clients often ask what the difference is between a “revocable” Trust and an “irrevocable” Trust.  As the names suggest, the core difference is whether it can be changed or “revoked.”  A Revocable Trust is generally flexible during your lifetime and often the lifetime of your spouse.  It can be revoked, amended, updated, changed and revised over time.  Conversely, an Irrevocable Trust generally cannot be changed or revoked - but is intended to be permanent in its initial structure.  Now of course, underneath these umbrella terms are found various types of Revocable Trusts and various types of Irrevocable Trusts. Any particular Trust is put in place to serve certain purposes and protect certain interests of the client. For a majority of situations, a Revocable Trust is most appropriate.  For example, it is very common for a couple or individual to want to protect their assets from probate and ensure that their children (or other chosen beneficiaries) receive their assets in an efficient and purpose manner - all while the creators of the trust retain the ability to make changes over time. In such a situation, a revocable living trust is often best - although the particulars of any given situation can direct other approaches.   An Irrevocable Trust is generally most appropriate for more unique situations such as planning for estate tax liability, seeking asset protection or other less common scenarios (but again, every situation varies and the appropriate tools vary as well) Amidst the variety of tools and Trusts available in estate planning, my job is to make things easy.

In Missouri, a Will directs where your property goes.  In other words, when you die, any assets that are in your name are subject to the terms of your Will (although there are various types of possible transfer designations that can create exceptions). This includes real estate, bank accounts, cars, investments, LLC interests, personal property and essentially any other type of asset. In order for those assets to be transferred to the intended recipients by your Will, a “probate estate” has to be opened with the Court.  Your Will would typically also designate who you want to be in charge of the probate process (i.e. the “Personal Representative”).  A Trust provides a very effective (and generally superior) alternative to simply having a Will.  When you have a Trust, you would typically transfer your assets into that Trust during your lifetime or have particular beneficiary designations set up to transfer assets into the Trust upon your death.  When you die, any assets in your Trust would not need to go through probate - generally making the process simpler, cheaper, smoother and less public. Probate avoidance is often a key reason to have a Trust in place. Additionally, a Trust allows you to be much more directive and particular in the way that your assets get distributed (distributed over time, used for a particular purpose, given at a certain age, etc.) So, is a Trust or a Will better in Missouri? In most cases, a Trust-based estate plan is preferable and superior to a Will-based estate plan. Of course every situation and every individual or family is different, but a Trust can be a very valuable tool in streamlining, improving and simplifying what happens to your assets when you die.

Probate is both costly and time-consuming and often presents a difficult procedural headache for surviving family members after the death of a loved one. In some limited instances, probate may be preferable—but these are very much the exception. On the whole, it is typically advisable to take the necessary steps to avoid probate altogether. The following represent major reasons why you would want to probate: Length: typically 7-12 months (or longer) from death to discharge of the estate. In most cases, probate simply cannot be administered in less than about 7 months. Cost: between legal fees, courts costs, notice and publication fees, probate sometimes costs between 4% and 10% of the gross estate Hassle: length/cost (as mentioned above) but the inherent court procedure, potential hearings and court filings require ongoing attention for several months Privacy: probate is public record, with much information being available to the public

A general power of attorney provides great value and is an important part of estate planning. A “power of attorney” document grants another person the authority to act on someone’s behalf. In other words, someone can execute a document and effectively grant to another person (perhaps a spouse, family member or close friend) the authority to take certain actions for them. The person signing the document (the “principal”) does not typically give up their own right to take these actions, but rather grants an additional right to the other person (the “attorney-in-fact”). The actions and authorities directed by a power of attorney document often include things such as managing financial accounts, writing checks, handling particular business matters, interacting with government offices and handling real estate. The scope of a power of attorney can be much broader than these examples, but it can also be much narrower. A well-drafted power of attorney implements what is most appropriate and desired in the given circumstances. Powers of attorney can be structured to be effective “immediately” (right away after the document is signed) or can be instead structured as a “springing” power of attorney - meaning the granted authority only becomes active upon the occurrence of a future circumstances (typically the principal becoming mentally incapacitated). Additionally, naming successor (secondary) individuals to serve as attorney-in-fact can be crucial in the event the primary named individual is unable to serve. An effective estate plan in Missouri nearly always includes a general power of attorney. The particulars of such a document can be carefully crafted to match the needs, circumstances and wishes of each client.