We receive a lot of phone calls from prospective clients who have just suffered the loss of a family member. In these sad conversations, they often want to know what steps to take next, who else should be called, if there’s anything that is time sensitive. These people are grieving, so we often wish to advise them that there is no rush, to get the funeral and other family matters taken care of, and then to call us in due course. That was not the case for a call I received a month ago.
The woman on the phone told me she was having trouble re-titling her stepfather’s bank accounts into her name after he had died. The issue here was the timing: he hadn’t died the previous week, month, or even in the same year. He had died a little over 4 years ago. He had downloaded and signed a Last Will and Testament before he died, even gotten it witnessed and notarized, as I would have advised him, if I had ever met him. So she assumed everything was fine, and that that Last Will—which gave everything to her, and not his biological children—would allow her to receive all the assets of her late stepfather’s estate. This was why she was so puzzled that the bank wasn’t simply handing over the accounts to her. Why weren’t they cooperating? She had never done anything with the Last Will after he died… but didn’t the fact that he HAD a Will solve estate planning problems? I had the unenviable task to then explain to her why her conception was completely false.
Our caller’s basic conception of a Last Will and Testament was right: you can leave your assets anywhere you want. In the United States, you are free to give to your natural children, your stepchildren, your friend, your favorite charity—anyone you want. But if you have no such document, the State of Missouri will say where your assets go. We have statutes (which are similar to many other states) that provide for the recipients of a person’s estate if they die with assets in their name, with no Last Will or Trust.
That was the kicker here: when our caller did not submit her stepfather’s Last Will within one year of his death, the law treated that document as though it never existed. You read that right—if a Last Will is not submitted to the appropriate probate court within one year of the deceased person’s death, it is forever barred from being submitted to the court. And a Last Will MUST be submitted to the relevant court. This leads to another misconception a lot of potential clients have. A Last Will does not avoid probate; it ensures probate must happen. A Last Will can only be activated (we say “admitted”) by the proper judge. If it is not admitted by the court, or not even submitted within one year, it is essentially a useless piece of paper. Whoops.
So that’s where she found herself here. I had to explain to the caller that, not only could she not submit the Last Will now, she never could. And furthermore, that meant that her stepfather’s natural children—whom he clearly intended to disinherit, probably because of his love for his stepdaughter—would be splitting his entire asset. She would get nothing.
The lesson here? If your family member has just died, call a competent, licensed attorney. Don’t wait! The even larger lesson? Don’t rely on Last Wills and Testament to say where your stuff goes when you die. We set up Revocable Trusts to hold our clients’ assets, to pass them to their beneficiaries on their own timetable after death, so we don’t have to go through the probate court at all. If you have questions on how to do that, give me a call!