In a previous post (Will or Trust – What’s the Best Tool For You) we discussed the differences between a Last Will and Testament (commonly called a “Will”) and a Living Trust (sometimes just called a “Trust”). In short, a will is a document providing instructions to a Probate Court on how to distribute your property after your death. On the other hand, a trust is more like a business entity into which you title to your property and which you then manage as trustee. As such, property transferred to a trust is not subject to probate proceedings.
In many situations a trust is a valuable tool. But sometimes a will is sufficient. In this week’s post we will discuss whether you can draft your own will and cover some of the benefits of engaging an attorney for assistance.
From a legal standpoint, you are not required to use an attorney to draft your will (or trust).
However, most states have a few basic requirements to make a will a legally enforceable.
Typically, most states have requirements on the person making the will (the Testator) and on witnesses. For example, Missouri and Kansas require the Testator be at least 18 years old and of sound mind. Missouri and Kansas also require at least two witnesses who are not beneficiaries under the will. The statement that the witnesses sign is different in Kansas and Missouri and is required by law.
Most state courts will enforce your will if it contains these core elements.
*However, each state has its own laws regarding the enforceability of wills, so do not rely solely on this blog post to determine if your will meets your state’s requirements.
Although anyone can create a legal will, an attorney can still provide immense value to the parties.
First, an attorney can provide peace of mind. The distribution of your property after your death is important and an attorney can provide guidance on how the process works and how you can make sure your intent is carried out after your death.
Second, an attorney will know more about specific provisions and various options you can use in your will.
For example, when your will is admitted to probate the court will require testimony from the witnesses. However, an attorney can provide self-proving affidavits and other language in the will to allow the probate court to proceed without witness testimony.
An attorney can also provide language that allows the Testator to direct the disposition of his or her personal property outside of the will using a separate list outside of the will and guidance on how to create and update such a list over time.
Your will can also include contingent trust provisions that, upon your death, create trusts for any children who are under a certain age set by you. This way, a young child doesn’t gain access to property at a young age when they may not be capable of managing the trust’s property. A contingent trust should also contain provisions to protect the trust property from creditors and your attorney can assist with those provisions as well. Finally, a special trust can be used for a beneficiary who may have special needs.
As you can tell, there are many options for how to distribute your property after your death.
For that reason, we usually advise individuals engage estate planning attorneys to help them draft wills and other estate planning documents. Towards that end, our Kansas City based estate planning attorneys can help you develop your estate plan. You can learn more about them here.
*This article is very general in nature and does not constitute legal advice. Readers with legal questions should consult with an attorney prior to making any legal decisions.