Don't Be Fooled By A "Simple Will"

Sometimes people will say they want a “Simple Will”. They assume their assets are uncomplicated and their family situation is typical. But, they don’t want surprises.

This may be a husband and wife with responsible adult children, a young couple with minor children or a single person. They want the will to distribute their assets to their family. Some attorneys prepare a “Simple Will”, leaving the impression they have taken care of things. Computer based will forms can provide similar false security. It can be like getting a prescription for bad medicine.

A will is not an efficient way to distribute your estate. It requires court approval and processing in accord with probate procedures. This is slow and expensive. The process takes a minimum of 6 months in Kansas and 12 months in Missouri. Typical attorney fees for a $200,000 estate are $7,000 to $10,000, or more.

A will only applies to assets that are in the deceased person’s name, and that have no beneficiary designations.

Most married couples hold bank accounts and real estate jointly. Upon the first spouse’s death, the assets go to the survivor, not through the will. If the assets have a payable on death (POD) or transfer on death

Don’t Be Fooled By A “Simple Will” (TOD) designation, or a beneficiary designation as on a life insurance policy or retirement account, these arrangements take priority over the will. Disputes occur when beneficiary designations are different than will provisions. For a young couple with minor children, if their retirement accounts and life insurance beneficiary designations are primary-spouse, contingent-children, and there is no surviving spouse, or a divorce has occurred, then the will does not apply to the children’s shares. It does not matter that the will may have provisions to protect the funds for the children’s education and long-term well-being. An experienced estate attorney will review all assets, their titles and beneficiary designations. Surprisingly, this review frequently shows the “Simple Will” has no use. Preparing a “Simple Will” without understanding a client’s unique needs, and confirming asset titles and beneficiary designations, provides false security and often results in more expense, delay and family disputes, down the road. ~ Editor’s Note: This article was submitted by James P. Berger, J.D. an attorney with Berger Estate & Elder Law, P.A. and may be reached at 913-491-6332 or by email at jim@berger-lawfirm.com. See our ad on page 31.