What are the Requirements for a Valid Last Will & Testament in Missouri?

February 19, 2016

In Missouri, there are 5 requirements for a will to be valid:

  1. It must be in writing;
  2. It must be signed by the testator (the person making the Will) or by someone by his direction and in his presence;
  3. Testator must be over age 18;
  4. Testator must be of sound mind; and
  5. 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:

  1. The testator signed and executed the instrument as his last Will;
  2. The testator willingly signed or willingly directed another to sign for him;
  3. The testator executed it as his free and voluntary act for the purposes therein expressed;
  4. That each of the witnesses, in the presence and hearing of the testator, signed the Will as witness; and
  5. 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.

In Missouri, a Last Will and Testament Leads to Probate

January 12, 2016

Often I have clients schedule an initial consultation to discuss having a Last Will and Testament drafted for them. While I am happy to do this for clients, upon further discussion, most clients realize that what they actually want is something different than a Will.

Last Will and Testament image

A Will is great for nominating guardians for minor children. Having a Will is also far better than passing away intestate (that is, without a Will) where default Missouri law controls the management and distribution of your estate rather than it being distributed according to your desires.

Yet, a Will often leads to Probate Court. This is the very thing that most of my clients want to avoid. After all, probate court (1) costs money, (2) consumes your loved one’s time, (3) leaves some decisions up to the local probate judge, and (4) is a matter of public record.

A much better plan is to avoid probate. And in most situations, in Missouri, avoiding probate is not that difficult to do. Clients can avoid probate by using all or some combination of the following:
1. a Revocable Living Trust (RLT) agreement,
2. a Beneficiary Deed for Missouri real estate,
3. a Gift Deed for personal property,
4. Payable on Death provisions for bank accounts,
5. Transfer on Death provisions for vehicles and boats, and
6. Beneficiary Designations for retirement and financial accounts.

Might it cost a little bit of money now to avoid probate later? Probably. Yet, avoiding planning now is being penny wise and pound foolish. One great thing about estate planning is the peace of mind it brings to my clients, that their affairs are in order and their wishes will be carried out.