"By failing to prepare, you are preparing to fail." ~ Benjamin Franklin
In Missouri, there are generally four main components to an estate plan, namely: (1) a pour-over will, (2) a trust, (3) powers of attorney, and (4) medical directives or living wills. While not all clients require a trust, many find a trust to be the most efficient method for avoiding probate, so it is commonly used for this purpose.
A basic will instructs the Probate Court on the division of assets and appoints a personal representative to carry out the decedent’s wishes in this regard. However, a will is subject to probate and must be filed and probated by the Court. This is a time consuming and expensive process. A probate estate must remain open for a minimum of six months for creditors to make claims. The personal representative must hire an attorney to administer the estate, and the attorney receives a percentage of the estate as compensation. In addition, the probate process is a public record allowing anyone to ascertain the value of the estate and the heirs entitled to inherit the estate.
By contrast, a trust is a private document. When the grantor dies or becomes disabled, the successor trustee named in the trust steps into the shoes of the grantor, and there is no need to submit anything to the Probate Court or to go through the probate process for assets which are held by the trust. This eliminates the time and expense and probate, and allows loved ones to grieve without the additional worry of how to pay for funeral expenses, medical expenses and the like. In essence, a trust allows one’s private financial affairs to remain private, and provides for immediate access to funds for loved ones.
A trust can also be established in such a manner that it protects a beneficiary’s inheritance from being subject to his or her creditor claims or spousal claims in the event of divorce. Should the beneficiary pass away, the remaining funds would generally pass to the beneficiary’s children rather than his or her spouse, assuring that the inheritance stays with the lineal descendants of the grantor.
Should the grantor become disabled, the successor trustee can access the funds in the trust for the grantor’s care without the need of establishing a conservatorship or guardianship with the Court. While a well drafted power of attorney can also grant access to a disabled grantor’s assets, many institutions will not honor powers of attorney, especially if they are more than five years old. As a result, the trust provides much better disability planning than a simple power of attorney.
Finally, a complete estate plan should always include medical directives, also known as living wills. These allow a trusted agent to make medical decisions for one should he or she become unable to make such decisions on their own accord.
Many people assume that they do not need an estate plan if their beneficiaries have good relationships with one another; however, Missouri statutes do not always achieve a grantor’s objectives. In addition, the added costs and delays can lead to difficult results for loved ones and leave them little access to funds for an extended period of time without the appropriate estate plan in place.
At Riddle Law Group we know it is critically important that everyone have a comprehensive and well thought out estate plan in place. In approaching an estate plan, our main objective is maintaining familial relationships which are easily and catastrophically damaged without a customized, well-tailored plan in place which takes into consideration varying family dynamics. As a result, we offer free consultations to clients in order to evaluate their needs and develop an individualized plan that fits the clients’ needs as well as that of their family and loved ones.