Estate Planning: Helping Protect Your Interests

Rights of Will and Trust Beneficiaries

Jeffrey R. Schmitt

Jeffrey R. Schmitt

After the death of a family member, people are often left wondering what interest they have in the deceased’s assets. At a time of grieving, it can be difficult to know where to begin. Lack of information or misinformation can leave potential beneficiaries in the dark as to the manner in which the deceased’s assets will be transferred.

Obtaining Wills, Trusts, and Other Documents

Fortunately in Missouri, and many other states, potential beneficiaries have rights allowing them access to information regarding the estate. In Missouri, if a will exists for a decedent, the original will must be filed with the probate court upon the death of the creator of the will. The will becomes public record at that point. If a family member believes that a will exists but has not been filed, that family member can open a probate estate with the court in order to try and require production of a will or other estate plan documents.

Similarly, trust beneficiaries often have rights to obtain copies of trust documents. Trusts do not have to be filed with the court but instead may be maintained privately by the named trustee. However, in most circumstances, trust beneficiaries are entitled to a copy of the relevant trust documents and can require production of them through a lawsuit, if necessary.

Accounting of Assets

Trustees, executors, administrators, and agents under a power of attorney all have some duty to account as to the assets and liabilities of the probate estate or trust.  After being appointed by the probate court, executors and administrators of wills have an obligation to file an inventory of assets and a corresponding obligation to advise the court concerning the liquidation or disposition of those assets.

Trustees of trusts have similar accounting requirements and are required by law to provide periodic accountings to the beneficiaries showing the assets, liabilities and expenses of a trust. If any of these fiduciaries fail in their accounting obligations, certain categories of heirs and beneficiaries have rights to compel the executor, personal representative, or trustee to prepare accountings and either file them with the court or provide the accounting to beneficiaries.

Discovery of Assets

A common concern for beneficiaries in estate matters is that a personal representative is hiding assets, has dissipated assets, or has incurred unnecessary or extraordinary expenses (which could be for the personal representative’s own benefit). However, the law provides certain rights for beneficiaries  to make inquiries and investigate possible improper dissipation of assets by filing a lawsuit to conduct an investigation.

Discovery of asset proceedings are not only limited to decedent’s estates but also can be used to investigate conservatorships or situations where a power of attorney is misused.

Will and Trust Contests and Construction Actions

A more extreme remedy that goes beyond investigation is asserting wrongdoing with respect to the creation or amendment of estate plan documents and filing a lawsuit to contest the estate plan documents. People who believe they are aggrieved by an estate plan (including a will or a trust that was either created or amended improperly) have the right to file a lawsuit to try to set aside those estate plan documents.

Reasons for contest actions include concerns that the estate planning documents were improperly executed, that the decedent lacked requisite mental capacity at the time the documents were signed, or that other family members or friends unduly influenced the decedent to make or change their estate plan.

Additionally, some estate planning documents may be drafted in a way that leaves questions as to who the correct beneficiaries are or what interests they might have, and a will or trust construction lawsuit provides the ability to have a court review the estate planning documents in question and make orders clarifying the terms or concluding the identities of the proper beneficiaries.

As is the case with many lawsuits and requirements of the probate and trust codes, many of the above procedures and remedies have strict time requirements or statutes of limitation. While these can be difficult situations after dealing with the loss of a family member or loved one, it is vital that someone who has questions or is concerned about possible wrongdoing take action as soon as possible so that their rights do not expire.

Posted by Attorney Jeffrey R. Schmitt. Schmitt represents businesses and individuals in civil and commercial litigation matters including banking and finance, real estate, condo and homeowners associations, probate, professional liability defense, title disputes, transportation, and pension and retirement plans. 


Special Needs Trusts Can Now Be Created by Individuals

Misty A. Watson

Misty A. Watson

On December 13, 2016, the long awaited amendment to the Special Needs Trust Fairness Act was signed into law by President Obama.

For more than 20 years, individuals who had a disability were unable to create a self-settled special needs trust without a parent, grandparent, or legal guardian participating in the process. The only other option for an individual with a disability was to have the court create the trust on his or her behalf. This was often an incredibly costly process. Continue reading »

Understanding the ABLE Act

Misty A. Watson

Misty A. Watson

Co-authored by Misty Watson and Samantha Maerz

“A major victory for the disability community, ABLE, for the first time in our country’s policy on disability, recognizes that there are added costs to living with a disability….For far too long, federally imposed asset limits to remain eligible for critical public benefits have served as a roadblock toward greater financial independence for the millions of individuals living with a disability.” – Michael Morris, Executive Director of the National Disability Institute

Savings accounts for individuals with disabilities will soon be possible without risking their access to federal benefits. On December 19, 2014, the Achieving a Better Life Experience (ABLE) Act was signed into law by President Barack Obama after receiving huge bipartisan support in both the U.S. Senate and House of Representatives. The ABLE Act is an amendment to the federal tax code that eliminates the $2,000 cap on conventional savings accounts for individuals with disabilities to qualify for Supplemental Security Income (SSI) and Medicaid.

Eligibility for many federal benefits, such as SSI, SNAP and Medicaid, requires that individuals meet a means test. Part of that test includes that an individual can report no more than $2,000 in savings. However, such a uniform test failed to recognize the additional costs of living with a disability. The ABLE Act seeks to remedy this unfairness by allowing a tax-advantaged savings account to supplement federal benefits, rather than supplanting them. Continue reading »

Estate Planning for Second Marriages

Misty A. Watson

Misty A. Watson

Prior to saying “I do,” those getting married for a second time have many more estate plan considerations to take into account than a first-time marriage.

Children from the previous marriage and spouses often have different interests and expectations about inheritance. If a large difference in age or health status exists between the new spouses, further complications can arise.

Without some type of waiver of spousal rights, a surviving spouse may have a right to elect against the estate plan that is put in place. In Missouri, this means the surviving spouse may receive one-third (1/3) of the estate, even if the will only provides for the children. Continue reading »

Estate Planning – Why It’s Important for You

Misty A. Watson

Misty A. Watson

Recently we’ve heard a number of stories about estate planning blunders that have resulted in huge tax costs and undesired distribution of assets. While a $50 million mistake certainly makes for good headlines, the fact is that quality estate planning is not just for the rich and famous.

It is common for people of all kinds to find themselves in similar situations when loved ones die, albeit with less fortunes involved – all because the deceased did not plan appropriately for death or disability.

Estate planning is all about your control over what happens to the assets you have accumulated during your life (including planning to minimize estate tax) and your control over your health care decisions.

Benefits of Estate Planning

1.    Avoiding probate of your assets. Probate is a court process by which the heirs of an estate are determined and the deceased person’s assets are distributed to those heirs. The benefits of avoiding probate include:

  • Your assets can be distributed to or held for your beneficiaries in a timelier manner.
  • Your estate avoids costly statutory attorneys’ fees.
  • Assets can be held for minor children without court involvement.
  • Your estate is distributed to your intended beneficiaries versus under Missouri law. Continue reading »

Costs of Raising a Child with Special Needs: The Story of Finn

Misty A. Watson

Misty A. Watson

Meet Finn and his family. Finn is a real boy with autism.

Finn’s father, Jeff Howe, shared his family’s story in “Paying for Finn: A special-needs child” for CNN’s Money Magazine. According to Howe, Finn is representative of 8% of all U.S. children because he is a child with special needs: he is autistic. His household is one of 25% of all U.S. households with a family member with special needs.

As the Howe family has learned, raising a child with special needs comes at great cost, both financial and emotional. Howe goes into great detail explaining his family’s journey with Finn. He does not hold back from sharing the specifics of his family’s finances and the costs associated with Finn’s care.

The financial burden for raising a child with special needs is staggering, to say the least, even for a family with considerable means. For families with less financial resources available to them, the financial burden is even more overwhelming. Continue reading »

What You’ve Been Waiting for – Estate Planning for Your Google Account

Misty A. Watson

Misty A. Watson

Google is giving users an innovative tool for long-term planning of digital data and access to inactive Google accounts. Welcome to estate planning for your Google account.

As many families have experienced, the terms of service for most types of online accounts from most providers do not generally allow for the transfer of access to an account in the event of death. As more people begin to store important documents, photos, videos, and other items of sentimental value online, gaining access to the information has become an increasingly important issue in estate planning, according to Brett Watz with Mind of the Geek.

On Thursday April 11, 2013, Google addressed this issue head on by rolling out its Inactive Account Manager. This feature allows a Google user to designate a particular person (or persons) as manager of the Google account once it becomes inactive. This trusted friend or family member will receive access to the user’s emails, videos, photos, and documents in the inactive Google account for many of its services, such as Mail and YouTube. The user selects which data can be accessed. Note that it appears that this policy does not extend to information contained in paid Google services (see The Digital Reader’s post by Nate Hoffelder). Continue reading »

iPad Apps for Autism

Misty A. Watson

Misty A. Watson

If you have someone with autism in your family, a tablet computer, such as an iPad or an Android tablet, may be a good investment.

Tablet computers offer numerous apps designed to help children with special needs, and apps specifically designed for people with autism can work wonders in helping them communicate.

St. Louis native Mark Bowers designed an app called Sōsh that helps young people develop social skills. According to the app’s website, Sōsh uses a methodology designed around the “five R’s” – Relate (connect with others), Relax (reduce stress), Regulate (manage behaviors), Reason (think it through) and Recognize (understand feelings). Continue reading »

Transfer on Death Deed Now in Illinois

Misty A. Watson

Misty A. Watson

On January 1, 2012, the Illinois Uniform Real Property Transfer on Death Act (Act) goes into effect. The Act permits owners of real property in Illinois to execute a deed which will allow for the property to be transferred to a designated beneficiary upon the owner’s death. If the property is owned jointly, the deed will transfer ownership upon the death of the second owner to the designated beneficiary.

The Transfer on Death Deed varies from its counterpart in other states in that it requires the deed to be executed with the formality of a Last Will and Testament. The deed must be witnessed by two witnesses, notarized, and the witnesses must attest that the person signing the deed is of sound mind. The deed requires certain language such as that it is not effective until the death of the owner and must be properly recorded before the death of the owner. Continue reading »

So You Are a Trustee

Misty A. Watson

Misty A. Watson

Your parent, aunt, grandparent, or friend has appointed you as trustee of their trust. You may have briefly glanced at the document 10 years ago when the trust was formed and never gave it a second thought until you get the call that the trust creator has become incapacitated or has died.

What do you do? What are your duties as trustee? What information are you supposed to give the beneficiaries? What are the steps to collecting assets? What bills do you pay? Are you supposed to file tax returns?

Serving as a trustee can quickly become overwhelming. Timing issues regarding notice to the beneficiaries and reporting to the beneficiaries your activities are often the most difficult for a trustee to know without the help of legal counsel. An accountant and financial advisor can also be valuable resources during the initial trust administration period.

Whether you are currently serving as trustee or know you will be serving as trustee in the near future, a consultation regarding your legal responsibilities as trustee is critical.

The duties of a trustee may include: Continue reading »