Some people have told me I need to have a Will and others have told me that I need to have a Living Trust. I am confused. Which is best?
Wills and Living Trusts each have advantages and disadvantages. It is not possible to go into a full discussion in this format. However, as a general rule, an advantage of Wills is that they are simple and inexpensive to prepare. A disadvantage is that there is normally more expense and time involved in wrapping up someone's estate when they have a Will. Living Trusts are much more expensive to establish and a little more cumbersome to work with during someone's lifetime. However, the main advantage of a Living Trust is that it avoids probate and is generally less expensive and takes less time to conclude and wrap up someone's estate when they die.
QUESTION NO. 2
I have three children and ten grandchildren. I want to make gifts to them but do not want to pay any gift tax. Can I accomplish this?
Yes, if your gift to each person, each year, is $10,000.00 or less. You can give $10,000.00 per year, per person. For example, you could give to a son and daughter-in-law, $10,000.00 each in December and $10,000.00 each in January and not be subject to any gift tax. This applies to any person, whether or not they are family members.
QUESTION NO. 3
My mother is in poor health and needs someone to assist her with financial matters. How can I do this?
Assuming that your mother is mentally competent, a durable power of attorney for financial matters would allow you to transact business on her behalf. If she is not mentally competent, it may be necessary to establish a guardianship and conservatorship through the District Court. Also, she may want to consider a durable power of attorney for health care decisions that would allow you or some other person to make health care decisions if she is not able to do so at that time.
QUESTION NO. 4
My father's health is not good. Is it too late for him to make a Will?
As long as he is mentally competent and knows the general nature of his property and who he wants to receive it, he could still execute a Will.
QUESTION NO. 5
Where should I keep my original Will?
At least in the State of Kansas, it is best to keep your Will in a safety deposit box if you have one. If not, some other safe and secure location should be selected. You may want to contact the attorney that drafted your Will to see if they have a safe in their office. Kansas law provides that the family members may have the safety deposit box opened in the presence of a bank officer. The Will may be removed to be delivered to the person named as the executor to file it with the District Court. In some other states, a safety deposit box may not be the best place to keep a Will, but in Kansas, it is.
QUESTION NO. 6
What is a Living Will?
Actually, it is not very well named. By statute, it is known as a Declaration of Natural Death. This is simply a statement by an individual directing that in the event they have a terminal condition and there is no hope of recovery, that their life not be prolonged by artificial means, i.e., life support equipment. The opinion that the condition is terminal and there is no hope of recovery must be held by two physicians, one of which is the treating physician.
QUESTION NO. 7
I am 75 years of age. Should I add my children's name to the deed for my home?
This simple question actually has a fairly complicated response. If you do this and later decide to sell your property, all of your children and their spouses must sign the deed. Further, if one of your children goes into bankruptcy, is involved in a bad automobile accident or creates some other type of liability, this property could be an asset which would be attached by the bankruptcy trustee or creditors. You should consult your attorney and fully understand all of the potential problems before you do this.
QUESTION NO. 8
I don't have a Will, but I do have a durable power of attorney. Do I need a Will?
A durable power of attorney simply allows someone to transact business for you while you are living. On your death, the power of attorney is terminated. In other words, a durable power of attorney is not a substitute for a Will or some other estate planning document or device.
QUESTION NO. 9
I moved to Kansas 5 years ago from another state. I had an attorney in the other state draft a Will and Trust for me. Do I need to have it changed?
Generally, if you are satisfied with the Will or Trust, it will not need to be changed, so long as it was valid in the state where it was drafted. It is not a bad idea to have your Will and/or Trust reviewed every 5-10 years, in any event.
QUESTION NO. 10
My wife and I have two small children. Who raises them if something happens to both of us?
If you have a Will or Trust that appoints guardians and conservators, the Court would appoint whoever you have chosen, unless for some reason they are not fit to serve in that capacity. Otherwise, the Court has to make a decision, sometimes over competing interests of both sides of the family. Normally, the families are able to work this out, but if you have this designated in your Will or Trust, you could have peace of mind that your wishes would be carried out.