A will can help you protect your family and property, and also avoid nasty arguments between family members that should be grieving together, not fighting. There are a lot of things you can do with your will, primarily leaving your property to people or organizations.
You can also name a personal guardian to care for your minor children, name who is going to manage the property you leave to your children, and pick a person who is going to ensure that your wishes are carried out as you stated (this person is called the “executor” or “personal representative”). If you do not name an executor in your will, the Probate Court will appoint someone to take on the task of trying to carry out the terms of your will and wind up your estate.
If you do not have a will, your property will be distributed according to your state’s law. This would essentially give your property to your closest relatives. It starts with your spouse and children and goes down from there. If you have no family and no will, the state will take your property. You do not want that to happen.
There are a few things that need to happen when you make your will. First, you will need two witnesses, neither of whom should stand to gain anything from the will (example: your son who is going to inherit everything and cut his sister out should not be the witness). You will need to sign in front of these witnesses, and they will also be signing the will. All signatures should be notarized (it really helps legitimize the document should there ever be a challenge). This also verifies that the person signing the will is actually who they say they are and keeps the witnesses honest.
There are a lot of questions that I get about “probate”. The simple definition is that probate is the legal process that occurs after a person dies, with or without a valid will. If a person dies with a valid will, then the property is distributed according to the will and it is overseen by the executor. If a person dies without a will, then the probate laws dictate how the assets are distributed (for Missouri probate laws, see Missouri Revised Statutes Chapters 472, 473, and 474). The probate Court in Missouri will be handled in your county’s circuit court.
However, the formal probate process is not always required when someone dies. It largely depends on what assets are in the estate. If you do have to go through the formal probate process, the process will be considered either “independent” or “supervised”, and is dependent on your particular circumstances.
If it is a “supervised” process, then it is closely monitored by the probate court. The Court must approve what the personal representative (or executor) does, and the personal representative must also file annual settlements that the Court reviews and audits.
If it is an “independent” process, the will designates that they do not want such stringent supervision by the Court. You can also have an independent process if all of those who stand to inherit agree to go that route.
In either scenario, an attorney is necessary and required to represent your “personal representative”. This is required in both supervised and independent processes. This will help ensure that deadlines are met, no mistakes are made, the process is explained, and disagreements are solved.
Bottom line: if you do not designate what you want done in your will, make sure those who stand to inherit contact a good attorney who handles this area of law shortly after you pass. There is a lot to do and the more guidance you can provide when you are alive, the better and smoother it will be for everyone who is already suffering from your loss.
To know what a Durable Power of Attorney is, you first need to understand what a Power of Attorney is. A Power of Attorney is a legal document that authorizes a person to act as your agent, allowing them to use their judgment to act on your behalf. It can be specific or limited in the authority it grants, but in either case, it should only be done after careful thought and consideration (especially the general power of attorney, which we do not often recommend). It should also be noted that the power ends upon death.
So why do you want a “durable” power of attorney as opposed to a regular power of attorney? The reason is that if it is not “durable”, the authority ends if you are incapacitated, which is generally when you really need someone making those decisions for you in most situations.
Example (that I have seen often): Dad and Mom divorced. Mom has a medical emergency and is unconscious. The doctors need to know what they need to do between two options. There are three adult children. One child wants to do option A, one child wants to do option B, and the third child has no clue what to do. A regular power of attorney would not help in this situation as mom is unconscious, but if one of the children has a durable power of attorney granting them the authority to made decisions, this wouldn’t be an issue.
We typically do two separate types of the Durable Power of Attorneys when someone hires us: one for Health Care and one for Finances. The reason is due to the fact that the person who you believe would be in the best position to make the decisions when it comes to health care doesn’t necessarily mean that the same person is the one who is in the best position to make the decisions when it comes to finances.
For example, when my grandma was diagnosed with cancer, we needed to get durable power of attorneys drafted right away. My uncle was a finance guy. It only made sense that he be the one to make the decisions if my grandma was unable to make them on her own. My uncle also lived in Springfield. My mom, who lived three minutes from my grandma and went to most of her doctor appointments with her, was the one who made sense when it came to health care decisions (which sometimes need to happen quickly). Sadly, both documents were needed, but having them eliminated any potential arguments or issues between my mom and her three siblings. My grandma’s wishes were clear, and everyone knew who was calling what shots while she was in hospice. There was no power struggle. My family was all together celebrating her life rather than arguing those last few days.
The family a few rooms over wasn’t so lucky, and there were often screaming matches about what their mother would have wanted (but had never written down). I don’t blame them for being upset. Illness and death are emotional times and losing or even thinking about losing someone you love is not easy. Emotions take over. Because of that, the more you can do to clarify your wishes to make it easier on those that love you, the better.
In the event you do not have a durable power of attorney, the default person is your spouse. They get to call the shots (even if they shouldn’t be) unless there is a durable power of attorney in place. However, and what I stress to those who recently got divorced, if you do not have a spouse you absolutely need to have a durable power of attorney for both health care and finances drawn up immediately. You need to have things lined up in the event you are incapacitated.
I still think you need the documents when you have a spouse as well, even if you want them calling the shots. When we draft a durable power of attorney you name backups in the event that your first choice is unable to act on your behalf.
Failure to have this in place might have your loved ones end up in Court fighting over who gets to make decisions for you should you become incapacitated. Getting a durable power of attorney avoids that conflict, time, and money, and you can also ensure that your wishes are honored.
Haefner Law Office offers flat rate pricing for Wills and Durable Power of Attorneys. We would love to learn more about your situation and help get the proper documents in place. Give us a call at (314) 200-6101 or visit our Contact Us page to schedule a consultation and discuss your options.
