Foreword
We all hear many misleading or faulty concepts concerning wills and estate planning such as - "wills avoid probate," "my will will dispose of all of my property," "the law will take care of distributing your property," "I don't have a large enough 'estate' to bother with a will," "anyone can write a will; you just say who you want to get what and sign it" and so forth. The Kansas Bar Association has issued this pamphlet not only to clarify these and other common misunderstandings, but also to furnish you with basic information as to the importance of having a will.

What is a will?
A will is a written instrument (in proper legal form) specifying the disposition of your probate assets after death. You must sign the will before two qualified witnesses.

What property does a will govern?
A will only governs disposition of property passing through probate. Probate property consists of property owned by a decedent at death, except it does not include property owned in joint tenancy with another person or property having a beneficiary designation (such as life insurance, individual retirement accounts, retirement plans, and "payable at death" designations on financial institution accounts). Joint tenancy property and property having beneficiary designations will pass to the surviving joint tenants and beneficiaries at death outside of the probate process. Such property thus will not be governed by a will.

What happens if I don't have a will?
Your probate assets will pass to your heirs at law by a statutory process known as "intestate succession." For example, if you are married and have no children, your spouse is your sole heir. If you have children and no spouse, your children are your sole heirs. If you are married and have children, your spouse is heir to half of your assets, and your children are the heirs to the other half. If you have no surviving spouse or children, the Kansas statutes provide for other more remote relatives to receive your property. If you have no heirs and no will, you assets will "escheat" to the state. In addition, in the absence of a will, the court will decide who is to serve as administrator (must be a Kansas resident) of your estate and who is to be guardian and/or conservator should you have any minor children.

Who needs a will?
Most persons who have an estate need a will. You have an estate, if you own a home, car, items of sentimental or financial value, or maintain a bank account, you have an estate. While the intestate succession law provides for distribution of your property in the absence of a will, this distribution may not reflect your wishes. Further, you can provide for special circumstances in your will that would go unheeded otherwise, such as naming a guardian and/or conservator for your minor children, naming your executor (who need not be a Kansas resident) to manage your estate; establishing trusts for minor children or incapacitated persons; protecting those who have trouble handling money from their creditors or even from themselves; making provisions for your children in a remarriage situation; passing property to friends who are not heirs; avoiding disruption and loss of your business after your death; helping to reduce or eliminate death taxes; and the list goes on. An attorney experienced in estate planning can help you provide not only for the expected but will help you address situations you may not have considered.

Does a will create increased probate expense?
No, and it may even save probate expense because less court involvement is required. If there are probate assets, a court must either rule on the validity of the will or, if there is no will, determine who are the legal heirs and distribute the property accordingly. There are generally costs incurred either way, but careful estate planning through a will can save your estate and beneficiaries substantial administrative costs and taxes.

Can a person leave property in any manner he or she wishes in a will?
Normally yes, except that you may not exclude your spouse without his or her consent. You may exclude your children if you wish.

Is joint tenancy a substitute for a will?
No, although joint tenancy may be an alternative means of disposing of particular assets at death, it is not a substitute . Upon a joint tenant's death, the surviving joint tenant or tenants automatically own the joint tenancy property. Assets owned in joint tenancy are not probate assets and are not governed by a will. During your lifetime, your control over the property is complicated by the fact that other joint tenants also have a present ownership interest in your property. Transfers of the property normally require the approval of the other joint tenants. The property may also become subject to claims of the creditors and spouses of other joint tenants, such as in a divorce. It also can cause adverse gift or income tax consequences. Further, because the property passes outright to surviving joint tenants at death, it is not appropriate in circumstances where it is more advisable to place the property in trust to protect beneficiaries. It may also be inappropriate if the surviving joint tenant is incapacitated, in a nursing home, or otherwise would qualify for government assistance. Moreover, joint tenancy property does not escape estate and inheritance taxes, and the opportunity for estate planning to minimize these taxes can be lost. Owning property in joint tenancy is a device for passing property at death, but should not be relied upon without expert legal counsel. Further discussion of the advantages and disadvantages of joint tenancy is found in another pamphlet published by the Kansas Bar Association, "Joint Tenancy."

Is a beneficiary designation a substitute for a will?
No, although beneficiary designations are an alternative means of disposing of particular assets at death (such as life insurance, individual retirement accounts, and retirement plans), it is not a substitute for a will. Beneficiary designations do not give any present ownership interest to the beneficiary, and can be changed without the consent of the beneficiary, unless you are married and the beneficiary designation relates to retirement benefits. Although these are advantages, beneficiary designations have most of the other problems associated with joint tenancy ownership.

Is a revocable living trust a substitute for a will?
Revocable living trusts are a means of avoiding probate, as the trust owns the decedent's assets, and not the decedent. Consequently, such assets are generally not governed by the probate process. The trust acts in the same manner as a will following death, i.e., directing the management of trust property and the manner is which trust assets are to be disposed. Revocable living trusts have advantages in avoiding probate in that they save costs and provide privacy in keeping the extent of your property and its disposition from being a matter of public record. However, they are not appropriate in many circumstances, as they are initially more expensive, and there is some inconvenience in having to currently retitle assets in the trust. Even should one utilize a revocable living trust as a primary instrument for disposing of property at death, a will should also be executed in the event that all assets are not properly titled in the trust during your lifetime. This will is called a "pour over". It provides for disposition to the trust with respect to any assets that must go through probate due to ownership remaining in the decedent at death. A more thorough discussion of the advantages and disadvantages of revocable living trusts is found in another pamphlet published by the Kansas Bar Association, "Is a Living Trust For You?"

How long is a will valid?
A will is valid until it is amended or revoked by you in the manner provided by law, or as provided by law in certain other circumstances. For example, if you marry and have children, a prior will is automatically revoked by operation of law. In like manner, if you divorce, any provisions in a prior will for your spouse are considered revoked.

I have a will. Should it be reviewed?
Changes in your family, finances, your state of residence, certain state or tax laws, or your intentions with respect to your property may make it advisable to change your will from time to time. It is recommended you have your attorney review your will periodically or in the event of any such change in circumstances.