A "Last Will and Testament" is a key part of almost any Missouri estate plan.  It's usually referred to simply as a "Will." Wills are important and can be an effective tool - but their use is often misunderstood. Here are some basics of what a Will does and what a Will does not do: 

What does a Will do?

• legally designates where property goes when you die 
• provides confidence that your assets will go to whom you want
• names a "personal representative" to be in charge of administration
• nominates successor guardians for any minor children
• gets administered through the court probate process
• spouses can having "matching" Wills as part of a cohesive joint estate plan
• requires cost for administration/probate after death
• must be filed within one year following death

And what does a Will NOT do?*

• does NOT avoid probate
• generally does not provide for tax planning
• does not contain provisions for long-term managed use of assets
• a Will is generally not a joint document between two people

*references are to a basic Will that does not incorporate a testamentary trust into its terms

One common goal of estate planning is to avoid probate.  This begs the questions: How bad is probate, anyway?  And why's it such a big deal to avoid it?

As a bit of background, it's important to understand what probate actually is.  In short, probate is the court-supervised process of ensuring and effectuating the transfer of assets from someone that has died to... someone else.  That "someone else" gets determined by the decedent's Will (if they had a Will) or by a set of Missouri laws (intestate succession) that dictate who gets assets when there is no Will.  There are three primary downsides the probate: (i) it's time consuming (at least 6-7 months and generally longer), (ii) it's fairly expensive (fees are generally payable to the administrator or personal representative of the estate as well as a lawyer), and (iii) it involves the headaches of court filings and related paperwork.

So, is probate that bad?   Probate can readily be avoided with proper advance planning, so in many instances, letting things wind up in probate is a major setback.  Probate is generally not a catastrophic blow to one's overall planning, but the cost and time can feel very wasteful. Alternatives can speed up the distribution process, save money and create a much smoother process.

How is probate avoided? Some fairly straightforward planning can keep assets out of probate.  Tools and techniques including a trust, beneficiary deed, beneficiary designations and other approaches can each be effective parts of an estate plan that avoid probate. Of course, every situation and individual is unique, particular approaches will vary accordingly. 

Whether you're rich or poor, married or single, have kids or don't have kids, an estate plan is important.  There are various documents that we frequently use to create a well-crafted, effective and clear estate plan.  A Will and a Trust are each valuable tools in creating the right plan. While separate articles and posts could be written (and I have written!) about the particulars of Wills and the Trusts and the appropriate use of each, a simple description might be the following:  A Will directs where your property goes and who is in charge when you die but would necessitate probate, while utilizing a Trust avoids probate, streamlines asset distribution and allows for more detailed ways to distribute assets after your death.  Both are important tools but a trust is generally preferable and more effective as the central instrument in someone's estate plan.  Trusts cost a bit more than Wills on the "front end" (creation of the plan) but are generally considered a superior tool and often end up saving quite a bit of money in the long run.  Our estate plans are of course customized to each client's situation and we utilize Wills, Trusts and other documents to put in place a plan that's right for each individual's needs.

​By forming a revocable living trust, one can readily avoid probate.  When a trust is formed, the creator of the trust would normally transfer most (or all) of their assets to the trustee of the trust (which is in most cases that same owner/individual) for the benefit of that same owner/individual during their lifetime. Accordingly, during the creator’s lifetime, the trust would not usually have any impact on control or use of the assets.  
However, one key benefit of a trust is what occurs upon the death of the individual establishing the trust. Upon death, the trustee’s rights and responsibilities are transferred to a new pre-determined individual (usually appointed by the initial owner) and the assets of the trust are distributed (or retained for the benefit of successor beneficiaries) in whatever fashion has been laid out in the trust document by the owner. This often involves distribution to family members or other beneficiaries but it could be whatever the trust creator has established in the trust agreement.
In short, because the owner’s property was held by the trust, probate would be entirely avoided. The trustee takes control of trust property and manages and distributes the assets pursuant to the written trust agreement and no court involvement would normally be needed.