In Missouri, there are 5 requirements for a will to be valid:
- It must be in writing;
- It must be signed by the testator (the person making the Will) or by someone by his direction and in his presence;
- Testator must be over age 18;
- Testator must be of sound mind; and
- It must be witnessed or attested to by two or more competent witnesses who also sign the will in the presence of the testator,
Most Wills today are also self-proving. This means that the testator and the two witnesses appear before a notary public and state something substantially similar to:
- The testator signed and executed the instrument as his last Will;
- The testator willingly signed or willingly directed another to sign for him;
- The testator executed it as his free and voluntary act for the purposes therein expressed;
- That each of the witnesses, in the presence and hearing of the testator, signed the Will as witness; and
- That to the best of the knowledge of each witness, the testator was at that time eighteen or more years of age, of sound mind, and under no constraint or undue influence. (see RSMO 474.337).
Having a self-proving will simplifies and expedites the probate process.
Clients sometimes ask how they can revoke a prior Will. Missouri statute 474.400 contains the answer:
“No will in writing, except in the cases herein mentioned, nor any part thereof, shall be revoked, except by a (1) subsequent will in writing, or by (2) burning, (3) cancelling, (4) tearing or (5) obliterating the same, by the testator, or in his presence, and by his consent and direction.”
Clients often contact me asking for an appointment to make a Will. While visiting together, it becomes clear that what they are really interested in is avoiding probate. Often, much to the client’s surprise, they learn that a Will does not avoid probate. I’ll repeat that again because it is so important: a Will, by itself, does not avoid probate. To avoid probate, consider a Revocable Living Trust and Beneficiary Designations.