While there are many components of a comprehensive estate plan, a Last Will and Testament is one of the most basic. If an individual dies without creating a will or living trust, the person is said to have died intestate. Under Kansas intestacy laws, your financial legacy will be distributed to your heir based on pre-set priorities based on state law. Even if this distribution of your assets directly conflicts with your stated objective during your lifetime, your heirs cannot challenge the disposition of your assets under Kansas intestacy law.
A last will and testament trumps state intestacy law, so the preferences and intentions of the person who prepares the will determines how your legacy is distributed. A valid executed will determines how and to whom the assets of your estate are distributed. Generally, the requirements for a will to be valid in most states include the following:
- Signature of the person who makes the will (“testator” or testatrix”)
- Written document rather handwritten or typed
- Two witnesses who are each present when the maker of the will and the other witness signs
Kansas Probate Code, Chapter 59 Probate; Article 6 Wills, Sections 59-601 through 59-606 sets forth the legal formalities and requirements for a valid will. An individual who is of sound mind can make a will provided the person has reached the age of majority. The requirement of a “sound mind” essentially means that the individual has not been found to be incompetent in a prior court proceeding. The will must be signed by the will maker and the witnesses as indicated above. However, a competent will maker can authorize someone else to sign on his or her behalf in the event the will maker is unable to sign. The person who signs for the will maker cannot be one of the required witnesses. The witnesses must also be competent.
When selecting witnesses, a will maker can avoid problems by selecting witnesses who have no financial stake in the will. If a testamentary gift is made to a witness who signs the will, this gift will be invalidated. This is the reason that a witness should never be asked to sign for the will maker. This exclusion does not apply if the interested witness is an heir who would recover if the will maker died intestate.
While everyone should create an estate plan for the transfer of his or her financial legacy, a living trust might be a better option for some people because it permits the drafter to avoid the probate process. An experienced Kansas estate planning attorney can provide guidance regarding the best option given your situation and artfully draft the relevant documents.
If you have questions about estate planning issues, we welcome the opportunity to talk to you about an estate plan suited to your needs and goals. We invite you to call us at (316) 265-7802 or submit an inquiry form through this website to schedule your initial consultation.