Wills & Estates: Frequently Asked Questions
What is a will?
A will is a written document which provides for the disposition of a person's property following death. A person writing a will is directing how he or she wishes property to be divided following death, and is intended to provide a complete disposal of whatever property is owned by a Person. A will is not effective until a person dies. Therefore, a person can change a will as often as desired. However, there are certain statutory requirements which must be met to have a valid will. The will must be witnessed by two persons who are not related to the person writing the will and who will not receive any interest in property passing under the will.
Furthermore, Kansas law allows an additional included in the will to make if "self proving" go that the witnesses will not need to be called later to testify at any probate proceedings as to the fact that they witnessed the signing or execution of the will- A will can be amended by what is known as a codicil, but any such amendment must meet the same requirements of the statute for the execution of the original will, that is, the witnessing of the signing of the will by two witnesses, A person can not change a will once it has been signed and property executed simply by writing those changes on the will, Changes must me made either by preparing a new will which is again properly signed and witnessed, or by preparing a properly signed and witnessed codicil. A person who attempted to change a will by writing the changes on the will or deleting portions of the will, without proper amendment by codicil, may well have voided the will.
What is a "living will"?
A "living will" is a totally different document than a testamentary will. A living will, often known as an "advance directive," is a set of instructions prepared by a person which is intended to be given to family members and the person's physician. The purpose of the living will is to inform these persons as to what medical care and treatment is to be furnished to the person signing the living will in the event that he or she becomes incapacitated and can no longer make these decisions personally. For example, the living will may direct family members and the physician to withhold certain types of medical treatment designed to prolong life, if it appears that the person is suffering from an incurable terminal illness. The living will may also contain instructions that the person not be resuscitated if there is likelihood that he or she will have lost cognitive abilities of function as a result of an injury or illness.
The living will or advance directive is really not a will in the traditional sense, since it deals with medical instructions, and has nothing to do with the disposition of property. However, it is an important document which many people now include as part of their overall health care planning. The Law Offices of Paul D. Post, P.A. usually provide a living will free of charge to any person who seeks the services of the office for preparation of a will or trust instrument.
What happens if I don't have a will?
Having a will prepared is often a very difficult decision, since it requires a person to think about his or her own eventual death. However, every person in the state of Kansas has a will whether they know it or not. If someone neglects to prepare a will, the state of Kansas has adopted a law, known as "intestate succession," which provides for the disposition of property for any person who dies in this state without a will. Most people do not even know what that law provides as to the disposition of property. By consulting an attorney, an individual or family can determine how their property would be disposed of by intestate succession, and if not satisfied with that statutory property division, can with the assistance of an attorney prepare an appropriate will which properly carries out the intent of the person or family concerning disposition of property upon death.
How do I avoid probate?
A number of years ago, a book entitled "How to Avoid Probate" was written which provided alternative method of disposing of property other than through a will. It is true that for a will to transfer property to the intended beneficiaries, a court proceeding known as "probate" must be filed. Recalling that a will is not effective until after a person's death, one of the purposes of a probate proceeding is to put a person's last will and testament into effect. Furthermore, if there is more than one will, the purpose of the probate proceeding is to determine which is the correct will in order to property carry out the wishes of the deceased person.
Probate proceedings also ensure that any title to real estate is properly transferred to the recipients named in the will, The book, How to Avoid Probate, works to create a certain amount of fear that probate proceedings were costly and time consuming, and that all of the person's property ended up in the hands of attorneys or the tax collector, or both. While the book was undoubtedly well intended, some persons (who may not have even read the book) have gone to great lengths to pass property to their relatives or intended beneficiaries prior to death. Often times, this is done through the creation of a joint tenancy with right of survivorship.