An estate plan helps protect you, your loved ones, and your estate, but it can only do so if it is legally enforceable and clearly implemented. Mistakes or misunderstood legal issues can result in months of disputes between your loved ones. It could even result in a comprehensive estate plan being unenforceable. When you work with a highly experienced Topeka estate planning attorney, you can better understand the requirements of your estate plan and create one that meets your needs.
There are several common errors that individuals make when creating their estate plans. An attorney can help you avoid these mistakes. Some of the common miscues that prevent a plan from being enforceable include:
Putting Off Making an Estate Plan
There are many reasons why people put off making an estate plan. It can be stressful to make, and not many people enjoy confronting their own incapacity or death. However, it’s important to make an estate plan sooner rather than later. By beginning a plan early in your life, you are giving yourself ample time to review and shore up these documents. You can also edit them over time to match your changing wishes.
If you create these documents late in life, you are increasing the chances that the estate plan will be contested for lack of testamentary capacity or undue influence. These situations are more common when individuals are older, and claims like these are less likely to succeed if you have had the document created for years.
Not Appointing an Executor or Appointing One Incorrectly
When you create a will or a trust, you want to name an executor and a successor trustee. If you do not, the court will place an executor in charge of your estate. It’s also essential that you choose the right person to manage your will or trust. These roles are very important, as they come with serious legal responsibilities. Pick a friend, family member, or professional who has the time, understanding, and ability to manage the inventorying and distribution of assets and the paying of creditor claims.
Incorrectly Using Joint Asset Ownership
When you add a family member or other individual as a joint owner for an asset, such as real estate, an account, or a vehicle, it may seem like a simple way to transfer the asset to them. Unfortunately, it can also create a very serious tax burden on the individual, particularly when the individual is not your spouse. Using other estate planning methods can help you transfer these assets without subjecting yourself and the heir to these taxes.
Failing to Plan for Disability or Incapacity
Many people, before they die, are disabled and/or incapacitated. Some people become incapacitated due to an accident at a much earlier time in their lives. This is not something people like to think about, but it’s important to plan for this potential outcome and provide yourself with protection and certainty about your own medical care.
Several documents in a comprehensive estate plan, such as advanced medical directives and powers of attorney, help you determine how your medical care is handled. These can also place those you trust in charge of medical and financial decisions when you can’t make them. Without these documents, your loved ones may have to take significant time to petition the court for these legal powers.
FAQs
Q: How Do I Avoid Probate in Kansas?
A: The most common and effective way to keep your estate out of probate in Kansas is to use one or more trusts in your estate plan. When you create a revocable trust, you continue to have control over the assets, and the assets pass to the ownership of the successor trustee rather than the state on your death.
An estate can also avoid probate if it is:
- A smaller estate that qualifies for simplified probate
- An even smaller estate that qualifies for an affidavit that avoids any probate process
There are certain requirements an estate must meet to go through these methods.
Q: What Is the Biggest Mistake When Making a Will?
A: One of the biggest mistakes when creating a will is failing to appoint an executor to be responsible for the estate and its distribution. You want to choose a loved one or professional who is capable and responsible enough to manage the significant legal burden of being an executor of an estate. If you do not select an executor, the state will assign an individual to control the distribution of your estate.
Q: What Is the In Terrorem Clause in Kansas?
A: An in terrorem clause, also known as a no-contest clause, is a way that the creator of a will or trust can limit contests. It does not prevent an individual from contesting the document. Instead, it states that any heir or beneficiary who contests the document will forfeit a portion or all of their share of inheritance if the contest fails. An in terrorem clause works most effectively to prevent existing heirs from contesting an estate planning document.
Q: What Are the Inheritance Laws in Kansas?
A: In Kansas, if you die without a will, your estate will pass to the following individuals in this order:
- To your surviving spouse if you have no children
- Half to your spouse and half to your children
- To your children if you have no surviving spouse
- To grandchildren, who receive an equal portion of their parent’s share if the parent is deceased
- To parents, if there is no surviving spouse, children, or grandchildren
Children, whether they are biological or legally adopted, are given the same inheritance rights under state law.
Avoid Estate Planning Mistakes
One of the biggest errors you can make is failing to create an estate plan at all. Simply by creating an enforceable will, you can ensure that your wishes for your estate are followed and your loved ones are taken care of.
A comprehensive plan can keep your estate from probate, saving your beneficiaries court costs, taxes, and other expenses, along with time and stress. A qualified attorney at Stange Law Firm can help you understand the uses of a comprehensive estate plan and how to ensure that it protects you and your future. Contact our team today.
