When it comes to estate planning, most people think of Wills and Trusts. Although a Will and a Trust differ significantly, each instrument allows the maker to decide who will receive his or her assets and property. At Bruntrager & Billings, our attorneys will help you decide whether a Will or a Trust is the best choice for your estate-planning needs.
Wills
A Will is the instrument mostly commonly considered by people discussing estate planning. A Will sets forth who will receive your property on your death. It also allows the maker, known as the testator, to name a guardian for minor children and to set up a trust to benefit the children, typically covering living, educational and other expenses.
A Will is not a means of avoiding probate court. Instead, the document advises the probate court with regard to how assets are to be distributed. For a Will to be valid in Missouri:
- The testator must be at least 18.
- The testator must be of sound mind.
- The will must be signed.
- The will must be witnessed by two people unrelated to the testator.
When a person dies without a will, property that is titled solely in the decedent’s name is distributed to beneficiaries designated by state law.
Trusts
Whereas a Will only goes into effect once the testator dies, a Trust can be used while the maker is still living, and a properly drafted Trust does not need to be probated in court.
Trusts typically fall under two categories: Revocable and Irrevocable. A Trust maker can revoke a Revocable Trust during his or her lifetime. Once an Irrevocable Trust has been created, it may not be dismantled.
Although an Irrevocable Trust does not shield the maker’s assets from creditors, it may protect assets from creditors’ claims after the maker dies. A creditor stands in the shoes of a beneficiary, and if the beneficiary does not have the power to force a distribution the creditor does not, either. However, a creditor may seize Trust assets once they have been distributed to the beneficiary.
The selection of a Will, Trust or some combination of the two depends on each person’s unique circumstances. Generations of families have turned to Bruntrager & Billings for estate-planning advice.
Durable Power of Attorney
A power of attorney is a document that allows one person to appoint another to act as his or her agent. A power of attorney that is not designated as durable is no longer effective if the appointing person becomes incapacitated. However, a durable power of attorney is just that – the powers endure even if the person who executed the document, known as the principal, becomes legally incapacitated. However, the durable power of attorney is revoked upon the death of the person who executed the document.
An agent may be granted a portion or all of the following powers:
- Execute, amend or revoke any trust agreement
- Fund any trust not created by the principal with the principal’s assets
- Make or revoke a gift
- Refuse a gift or transfer of property
- Create or change survivorship interests in the principal’s property
- Change the principal’s beneficiary designations
- Consent to an autopsy
- Consent to organ donation
- Nominate a guardian or conservator for the principal
- Make decisions regarding health care, medical care, treatment or procedure
Health Care Power of Attorney
A durable health care power of attorney allows an agent to make health care decisions on behalf of the principal. The durable health care power of attorney agent may make decisions regarding:
- Health care
- Medical treatment
- Medical procedures
- Life support
- Use of feeding tubes or artificial hydration
Many hospitals and The Missouri Bar Association supply durable health care power of attorneys as a public service. The estate planning attorneys at Bruntrager & Billings are also available to help tailor the durable health care power of attorney to meet your needs.