Overview of Wills
A will specifies who you leave your assets to, allows you to appoint a guardian for minor children and someone to manage your assets on behalf of your minor children, and name an executor to carry out your wishes after your death.
There are written and witnessed wills, oral or “nuncupative” wills, and handwritten or “holographic” wills. In Kansas, holographic wills are not valid. Nuncupative wills are valid only if spoken during the last illness, put into writing, and signed by two competent, disinterested witnesses. They also can be used only to distribute personal property, not any other assets.
A valid will must be in writing, signed by the person making the will (testator) or by someone present at the direction of the testator, and signed by two disinterested parties who witness the testator’s signing of the will. Kansas wills must also be updated as your situation changes (marriages or the birth of children, etc.).
Assets of the estate with designated beneficiaries — such as real and personal property with “transfer on death” or “title on death” documentation, “payable on death” bank accounts, life insurance policies with named beneficiaries, and joint tenancy real property — do not need to be included in a will or go through probate. Money, real estate, and personal property without otherwise named beneficiaries can be inherited assets passed on through a will.
Why Having a Will Is Important
If you die without a will (referred to as dying “intestate”), you don’t get to decide how your estate is divided. The court follows Kansas law in dividing your estate between your spouse, children, or other heirs according to the law of intestate succession, even if you wanted your estate to be distributed differently. If you have neither a spouse nor heirs, the state will keep your estate.
If there is no will, a decedent’s estate goes through the probate process. The court designates an executor (usually a spouse or adult child) to handle the usual duties of dispensing the estate according to the laws of intestate succession.
Valid wills are also probated, but estates with values of $40,000 or less can avoid probate if an heir signs an affidavit attesting to its value. A will for a small estate may go through a simplified probate process if requested by the executor and approved by the court.
Differences Between Wills and Trusts
The key difference between a will and trust is that wills are subject to probate, which makes them public documents and subjects them to legal challenges.
A trust does not go through probate, so its assets and distribution remain private. A trust also is not subject to court challenges.
Guardians for minor children can only be named in a will, not in a trust. This is why it is advisable for trust grantors who have minor children to also have a will.
Choose a Skilled Attorney
It is never too early for any adult to draft a will, even if it must be updated as life circumstances change. Always having a valid will can provide peace of mind for you as you face the future. It will also allow your loved ones to grieve without the stress and anxiety of trying to handle your estate without your instruction.
Even if you have only a few assets, like a home, a vehicle, or a checking account, you should rely on the counsel of an experienced estate planning attorney to make sure documents are drafted and executed correctly.