“To my first wife Sue, whom I always promised to mention in my will: Hello Sue!” -- Will of Anthony Scott
A will is the most basic instrument of estate planning that, when executed and presented to the court in the appropriate manner, provides for the distribution of your estate in the manner prescribed by the will. Notwithstanding such, a will is only one component of an estate plan and should not be exclusively relied upon.
Testate and Intestate Succession
To illustrate the importance of a will, consider that there are two types of probate proceedings in the State of Kansas: Testate and intestate succession. Both derive from the same Latin root for “will”, and respectively mean “with a will” and “without a will”. A testate probate will result in the passing of your estate to those whom the will identifies and in the manner the will provides for. In an intestate probate, your estate passes as prescribed by the laws adopted by the Kansas Legislature for intestate succession. In short, if you are intestate, you get no say in where your estate goes.
Requirements of a Will
In order to be valid, a will must meet certain criteria and be executed in a particular manner. The testator making the will must be competent, which is typically described as “being of sound mind and body”. The execution of the will must be witnessed by two (2) individuals who are not related by blood to the testator and who are not beneficiaries of the will. And, lastly, the will must be in writing; while Kansas does recognize oral wills made on one’s deathbed with regard to personal property, even those are only valid if reduced to writing within thirty days.
Additionally, in order to be effective, a will must be filed with the District Court in the county where the decedent resided within six months of his or her death in order to be effective. If not filed within six months, the court will disregard it and proceed as if the decedent was intestate, unless the reason the will was not filed with the court was because it was withheld or purposely hidden to prevent it from being offered to probate.
Powers of a Will
Having discussed at length the imperative to have a will and the requirements necessary to create one, the question then becomes what can be done with one. And the answer is: Almost anything! With a properly executed will, it is possible to command that your estate be disposed of in any lawful manner, and the courts will be highly deferential such. (An example of an unlawful bequest would be providing $10,000.00 for your estate to hire a hitman to assassinate your high school gym teacher.)
Beyond being limited only to lawful dispositions, a testator’s power to distribute property is also limited with regard to any spouse he or she has at the time of death. Kansas law allows spouses to take a statutorily prescribed share of an estate in lieu of what they would otherwise be entitled to under the will. As a practical matter, this functions to prevent testators from disinheriting spouses, by providing them the ability to always take a percentage of the estate even if the testator made no bequest to them.
The Importance of a Broader Perspective
As stated on the splash page, one of the primary purposes of estate planning is to minimize the need to go to court. Wills are a very important tool, but they are also a clumsy one, as they cannot effectuate the transfer of your estate without the court's intervention. It is, then, not an end unto itself and may well need to be complemented to achieve your estate planning goals.
Since 2013, the Law Office of Christopher J. Velez has been helping individuals and families in Southwestern Kansas to make sure their wills say what they truly desire them to and making sure that they are part of a more comprehensive estate plan to accomplish their last wishes. And we would like the chance to help you do the same.
Call (620) 277-3315 to find out what the Law Office of Christopher J. Velez can do for you in your estate planning or probate matter.