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Missouri Probate Courts

Missouri Probate Courts

 
A Brief Introduction Missouri Probate Courts
 
 
Missouri probate courts deal with the distribution of a person’s property after their death. A bad reputation is often attributed to Missouri probate courts because they can be costly and a hassle, but unfortunately not much can be done to avoid them in most situations in which a loved one dies. A common belief is that wills avoid an estate’s entrance into Missouri probate court, but that’s simply untrue. A will is actually defined as legally-binding written instructions for a probate court, so it certainly won’t get you out of a Missouri probate court. The best way to minimize your trouble will be to simply better understand probate procedures. 
 
 
Estates & Missouri Probate Courts
 
 
The most common reason for persons to step into a Missouri probate court is to deal with the estate of a recently deceased loved one, though there are other reasons. The process begins with the filing of a petition to open a person’s estate, and then actions differ depending on whether or not a will is in place. If one is in place, then the will first be validated with challengers to it able to discuss their reservations in court. A complete search for the deceased’s assets will be performed, and the money will be divided according to the principals of the will. A Petition for Executorship may also be filed to gain status of “Estate Executor” and be in charge of distribution.
 
 
This differs from the actions conducted by the descendants and heirs of those without wills. There the process is more complicated, and all the time that would have been invested in validating the will is instead put toward discussing who is entitled to which assets. An administrator will be appointed to supervise the distribution of assets.
 
 
Guardianships, Conservatorships & Missouri Probate Courts
 
 
Guardianships and conservatorships are sometimes called living probate court because they deal with living human beings associated with a deceased individual. The two groups that they involve are minors and the mentally or physically disabled—persons who cannot be expected to take care of themselves or make rational decisions about their future. Guardians take care of a person each day and make their life decisions with them, while conservators merely watch over such an individual’s finances. In is usually the case that guardians and conservators are the same, but not necessarily.
 
 
You will need to file a Petition for Guardianship or a Petition for Conservatorship to gain this status. Afterward, you will need to undergo regular investigation to prove that you are up to the task and that your ward is doing well.
 
 
Fees Associated with Missouri Probate Courts
 
 
Though they can be easy to navigate for those experienced or well-researched, there is little changing the fact that your visit to a Missouri probate court could be incredibly expensive. For small estates, the least costly to get through court, costs usually run from $400 to $600. Things only get costlier the higher up you go. An estate of $50,000 will have Missouri probate court costs from $2,300-$4,000, while one of $500,000 will likely have costs ranging from $14,800 to $28,000. 
 
 

Uniform Will For All States

Uniform Will For All States

When you are contemplating end of life decisions one of the most
important things you can consider is the making of your last will and
testament.  When you are compiling your
will you will want to meet with an estate planning lawyer to go over the
specifics about what should be included. 
Every state in the Union has its own rules about how a will needs to be
drafted, the number of witnesses that need to attest to the will and how it
must be presented.

In most states there are 7 requirements to making a valid will.  If these formalities are not followed then
your will may not be valid and your estate may fall into intestacy.  This should be avoided at all costs due to
the fact that intestacy will require your assets to be divided amongst your
spouse and blood line, starting with your issue.  Intestacy can lead to individuals who, were
never intended to receive a bequest in the will, receiving some or all of the
decedents assets.  The 7 requirements of
a valid will are:

1.      You must be of legal age

2.      The will must be signed by the testator
or by someone at the testator’s direction; in his, or her, presence.

3.      Testator’s signature must be at the end
of the will.

a.      wills that are
signed in the middle of a will will void the subject matter below the signature

4.      Testator must
sign the will or acknowledge his earlier will in the presence of each
witness. 

5.      The testator must
publish the will.  This means that the
testator will communicate to the witnesses that this is his last will and
testament.

6.      There must be a
certain number of attesting witnesses. 
This number of witnesses depends on your specific states laws.

7.      The execution of
the will must take place within a certain period of time from the date the
first witness signs the will.  For
example, if the jurisdiction has a 30 day period and the second witness signs
the will 40 days after the first witness the will will be void for lack of
timely execution.

 

Meeting these requirements is the first step to making a valid
disposition of your will.  If your will
is validly executed it will be able to go through the probate process
successfully.  In order for your will to
properly represent your intentions you will need to compile a list of
individuals, documents, and information in regards to your intended beneficiaries
and you assets.

 

The 10 main provisions of your last will and testament should include:

 

1.      The document
title : LAST WILL AND TESTAMENT

2.      Your name,
address, and the date of creation of the will. 
You should state that you are of legal to create a will; are of sound
mind and body; that “this is your last will and testament revoking all previous
made wills and codicils”; and that you are not under duress or under undue
influence to create this will.

3.      Your choice of
executor.  You must include the name,
address and any other information that specifically describes your intended
executor.  You should also designate a
“back up” executor in the case that the originally designated executor refuses
or is incapable of performing these duties. 
If you have not appointed an executor then the court will appoint one
for you.

4.      Your choice of
guardianship for minors.  If you are a
parent one of the most important aspects of a will can be the designation of a
guardian for your minor children.  In the
event that, upon your death, there are no surviving parents, or they are
incapable of raising children, the a guardian, and back up guardian should be
designated.  If this is not accomplished
then the court will appoint a guardian based on the best interests of the child.

5.      List the details
of your beneficiaries.  This includes
family and friends that you intend to include in your will.  When including beneficiaries, be as specific
as possible to avoid a dispute.  For
example, the bequest of “$5 million to bob jones” will be inefficient,
especially if you have both a brother and son named bob jones.  A better way to phrase this would be “$5
million to my brother Bob Jones residing at 31 estate st., Norwalk, CT.” A
bequest to non-living or vague beneficiary will be void for want of specifics.
“To my best friend bill” will not be a valid bequest; “to my wife” may distort
intentions, especially if the testator re-marries without changing his will;
“to my grandchildren” will only include the grandchildren of the testator that
are alive at his, or her, death.

6.      You will need to
include all information pertaining to your probate assets. Probate assets are
those assets that are designated in the testator’s name.  This includes all individually owned bank
accounts, automobiles titled in the testators name, cash, personal property
such as watches, furniture, electronics, etc. 
Non-probate assets are those that are not included in your probate
estate and are designated in someone else’s name or in joint tenancies.
Examples of non-probate assets include life insurance policies, joint
tenancies, trusts, joint bank accounts, pensions, and Payable On Death
accounts.   All probate assets that are
not disposed of in the testator’s will will become part of his, or her,
residuary estate and be divided through the jurisdictions rules on descent and 
distribution.

7.      Designate your
specific bequests of your assets to the individuals named in your will.  The bequests should be specifically written
so that correct bequest goes the correct beneficiary.  For example, a bequest of “To my brother
Steve the painting hanging above the fireplace in the living room.”  The testator may have intended a specific
painting but at the time of death the painting may have been moved to another
room.  This may void the bequest.  When dealing with the liabilities and debts
of the testator those debts will come out of the testators estate in a certain
manner.  Every state has its rules for
satisfying debts through probate assets but the general order that assets will
be depleted is in this order:  (1)
intestate & residuary property; (2) general gifts $5,000 to Steve); (3)
demonstrative legacies, a general gift from a specific source such as “$2
million from my bank of America savings account; if there are still debts to
paid after this then the debts will be satisfied through the sale of specific
bequests, “I devise my 56’ Chevy.”

8.      Include your
specifics about your funeral arrangements; whether you want to be cremated or
buried; where you want to be buried; what clothing or items you wish to be
buried in; and any other details that may be important to you.

9.      Sign the will at
the end.

10.  Have your
witnesses sign that they witnessed and acknowledged that this your last will
and testament.  Most states require at
least 2 witnesses.  If one of your
witnesses is also a beneficiary under your will then they may be disqualified
from receiving under the will, depending on your jurisdictions rules.  This may be saved by the interested witness
having the option of taking the lesser of what his specific bequest is, or his
share through intestacy.  If an
interested witness is not an issue, or heir of the decedent then his signature,
as a witness, will void his bequest completely. 
Another way to save a bequest is if the interested witness’s signature is
unnecessary. If the law of the state directs that 2 witnesses need to sign and
there are 3 signatures then the interested witnesses signature may be treated
as if it does not exist.

In addition to these basic steps the will should also include no-contest
clauses, specific requirements for the valid destruction of the will, and
incorporations by reference. 
Incorporation by reference is a provision in a will that designates the
incorporation of the details of other documents into the will.  For example, a provision that states “I leave
all the assets designated in a document in my safety deposit box to be
incorporated into this will.”  Some
states do not permit incorporation by reference.  You should consult with your estate planning
lawyer about your jurisdictions specific rules.

 

  

Special Needs Trust

Special Needs Trust

What is a special needs trust?
A special needs trust protects the assets of those that are mentally or physically unable to use the property entrusted to them by another. Special needs trust typically exist to allow the special needs person to qualify for Medicaid benefits, which they would otherwise not be eligible due to a significant level of assets. A person would be ineligible for benefits if they held assets in excess of $2,000 or $3,000 if the applicant is married.
Who will likely need a special needs trust?

Individuals with significant mental and physical disabilities will typically require a special needs trust. This includes those that have been injured and are now disabled as a result of that injury. The special needs trust in this case would be used to hold the personal injury settlement until which time the disabled person will be able to enjoy the full benefit of the settlement.
Special needs trusts are specifically referred to as “supplemental needs trust” in the United States and are specifically protected by federal and state laws. An estate and trusts lawyer will be able to set up a supplemental needs trust for individuals that have need of such protection.
How does a special needs trust function?

The special needs trust will require the appointment of a reliable trustee that will manage the assets until the point that the special needs person is able to enjoy the use of those assets. This differs from an official trust which is administered to by the court and will receive very little personal attention. In the event that there are no more trustees remaining, the court will intervene and establish an official trust. The special needs trust will have specific conditions to be followed by the trustee as well as procedure to make the assets available to the beneficiary on a limited basis.
How have special needs trusts been reformed?

Previously, an individual could have transferred all assets into a trust of his or her own creation and received government benefits by exempting those assets from the Medicaid determination. This changed in 1993 with the Omnibus Budget Reconciliation Act which outlawed this form of special needs trust and restricted such agreements to trusts settled by a third party for the benefit of the disabled person. Therefore, all “self-settled trusts” must be counted in determinations for Medicaid, even if the person is disabled and could benefit from Medicaid.
What are types of special needs trusts?
A Miller trust receives the beneficiary assets and uses those assets to pay for medical care. The beneficiary will receive Medicare benefits using this trust and upon the death of the beneficiary, the State will be reimbursed for medical costs from the Miller trust.
A nonprofit pooled income special needs trust provides for the disabled beneficiary through a nonprofit organization which will manage the accounts of several beneficiaries. The investments are pooled and provide for the needs of all of the beneficiaries.

African Woman Fights for Equal Inheritance Rights

  African Woman Fights for Equal Inheritance Rights

Philani Moyo, a 27 year old woman from Zimbabwe, is fighting the traditional customs of inheritance, as she tries to stay in her childhood home.  Her parents purchased the home, however both have since died, leaving Philani and her two sisters to reside in the home.  
However, members of her paternal family are trying to get the sisters out of the home, citing traditional inheritance customs.  According to customs, the family members, usually the males, will meet to decide how to settle the estate.  The sisters feel they have been left out of the meetings and therefore did not have a say in how to settle the estate.     
The issue raises many probate questions among African cultures, especially as governments try to push for more gender equality during the probate process.  It remains to be seen how traditional custom will interact with government mandated probate, but many are currently caught up in the debacle.  

Probate Courts Declare “Incapacitation” More Than Ever

 Probate Courts Declare “Incapacitation” More Than Ever

Across the country, many seniors entering their later years are being declared incapacitated, which requires that they are assigned a guardian who will oversee their finances and make all legal decisions affected the senior.  At the same time, many fear the increase in incapacitation declarations will lead to further abuse and mismanagement of retirement finances.   
Probate courts are facing a real problem, as many more seniors are entering their final years due to advancements in medicine and science.  While such advancements have extended the lives of millions and helped their quality of life, many lives are extended through times when the senior cannot care for themselves.   
The recent increases have brought the issue to the forefront of both probate and elder law advocates, who want to protect seniors while also ensuring that they receive the help they need.  Courts are scrambling to handle the influx of cases and to properly oversee the guardians who are charged with protecting the seniors.  

New York Living Will

New York Living Will

Guide to New York Living Wills
 
 
Living wills are legally binding documents which stipulate the steps that should be taken if the person signing off is terminally ill, permanently unconscious or otherwise near death and unable to communicate their wishes. There is no legislatively mandated form a living will must take in New York. To be legally binding, this kind of document must merely be clearly written and appropriately signed by witnesses confirming these are your wishes, made in sound mental health without being under duress.
 
 
In a living will, you should specify:
 
 
• Whether you wish for life-sustaining devices such as artificial respiration to be used if they are the only thing keeping you alive. Those who do not wish to prolong the dying process may specify that they wish for the use of such devices to be discontinued after a certain interval.
 
 
• Some people may choose to specify that intravenous liquid and food nutrition must be discontinued after a certain amount of time has passed, assuming that death is inevitable or there is no hope for a return to consciousness
 
 
• Which procedures you would find acceptable and which would be too burdensome to justify
 
 
• Any parts of your thought process you feel are relevant to understanding your wishes, such as religious beliefs 
 
 
You may detail specific treatments you do or do not want, including cardiac resuscitation or antibiotics. You may also choose to detail your wishes regarding potential organ donations. In general, it is advisable to include as many specifics as possible to cover all contingencies. The form should be signed by a witness 18 years of age or older.
 
 
It is the patient’s obligation to make sure their physician is familiar with their wishes. If you are admitted to a hospital, you should submit a copy of your living will upon checking in. You may also choose to appoint a proxy to make decisions on your behalf or to specifically make sure your wishes are carried out as written. To make sure your wishes are taken into consideration, some people may choose to carry a copy of their living will with them at all times in case of emergency.
 
 
A will can be revoked at any time, whether orally or by drafting a newer living will. If you choose to change any part of your living will, destroy all previous copies if possible to avoid future confusion. These documents do not take effect until reasonable efforts have been made to communicate with you. If there is no living will in place, relatives will be given the authority to make a decision. 
 
 
Because there is no set form for a living will in New York, there may be situations in which a patient’s wishes are unclear. However, assuming a living will is correctly drafted, a physician must abide by its instructions. If, for whatever reason, a doctor refuses to carry out clearly-drafted instructions, he or she must arrange for the patient to be transferred to someone else’s care.
 
 

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