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Probate: Intestacy

Most people are unaware of what happens to their estate (all the property they own) if they are to pass away without a will, trust, etc. There are a few reasons for this. People generally do not like to discuss what happens with their property after they die. Few want to come to grips with their own mortality and meticulously divide up their assets to their friends and loved ones. And I’m sure there are some out there who just don’t want to deal with attorneys or pay legal fees.

It is a mistake to be without an estate plan of some sort.

It’s often said that, for those who have not executed an estate plan, Missouri has a default one for them. It is called “intestacy” or “intestate succession.” Because the legislators in Jefferson City drafted it to be a one size fits all system, it sometimes does not fit some people at all. In speaking with some of my clients, they often assume that if they were to die his/her spouse gets the rest of the estate. This is not always the case. Under intestacy in Missouri, if a spouse dies with children, the spouse will generally receive the first $20k of assets from the estate, with the balance being divided between the spouse and children of the marriage. And what happens if the children of the marriage are minors (under 18)? The court will have to appoint a court-supervised conservator to administer the children’s share of the estate. This service is often costly, as a conservator may take a percentage of the estate for reasonable compensation. If, to give another example, a single individual passes away without heirs, his/her estate will pass equally to his/her mother, father and any brothers and sisters.

Distributions such as this do not always comport with a person’s wishes.

Even if one grasps how the default intestacy scheme works, there are still plenty of misconceptions about the operation of wills and trusts. Many people think that simply having a will avoids the probate process. This is not true. A will simply speaks at death, reciting the testator’s wishes — which may not even be honored if a beneficiary establishes that the creation of the will was flawed. It is also important to point out that most wills do little to account for the possibility of disability or incapacity before death. And lastly, this process is completely open to the public.

It is, consequently, important for individuals to seek legal counsel. A good estate plan can provide for your children, their health, your well-being and the private disposition of your assets for many years to come. And with more sophisticated estate plans, few limits exist aside from the client and attorney’s imagination.

 

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