The information about wills on this page deals only with Missouri law. Other states have their own laws governing wills, which may be similar in some respects but can also differ substantially.
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Under Missouri law, any person at least 18 years old and of sound mind is legally entitled to make a will. The primary purpose of a will is to specify who will receive the property of the person who made the will upon the person’s death.
The law calls a male who signs a will a “testator,” and a female, a “testatrix.” A deceased person is referred to as a “decedent.”
Certain formalities are required in the preparation and signing of a will in order for the will to be valid (enforceable in court) under Missouri law. These legal requirements, in conjunction with court interpretations of wills over the centuries, make it difficult, although not impossible, for individuals to prepare and sign valid wills without the assistance of an attorney.
At least two witnesses are required for wills in Missouri. The witnesses should not be persons who would benefit from the will. A witness who would benefit from the will forfeits rights under the will.
Under former Missouri law, when a will was filed for probate, it was necessary to track down the witnesses and obtain written verification from them that they witnessed the decedent signing the will. However, under current law, a special notarization form can be appended to a will, eliminating the necessity of later finding the witnesses.
Minor amendments to a will can be made by signing a new document called a “codicil” (the legal term for an amendment to a will). A codicil must be executed with the same formalities as a will. If extensive revisions to a will are desired, usually it is less expensive to simply replace the former will with an entirely new one rather than prepare a codicil.
Signing a new will has the effect of revoking all prior wills. It is also possible to revoke prior wills without signing a new one simply by destroying the prior wills and all copies.
A will can give money and property to any person or organization, in any manner chosen, but is subject to the spousal rights discussed on the Spousal Rights page.
Other estate-planning techniques can be used in conjunction with a will – see the Other Techniques page.
In recent years a helpful provision has been added to Missouri law allowing what is called a “separate written list” to dispose of items of tangible personal property.
If a testator or testatrix authorizes the procedure in a will, he or she can dispose of items of tangible personal property by making a separate list of the items and the persons who are to receive them. The list must refer to the will and be signed and dated by the testator or testatrix.
The advantage of this procedure is that the separate list can be changed or rewritten from time to time without having to amend the will. Previously it was necessary to go to the time and expense of preparing a codicil or new will to change the disposition of such items.
Scott Law Firm provides a form for such separate lists which allows our clients to prepare a valid separate list by following the instructions also provided.
Some reasons for making a will include:
- The testator or testatrix can decide who receives property rather than letting the state decide (see the No Will? page for details on what happens if a decedent has no will).
- It is possible to reduce probate costs by waiving bond and providing for independent administration.
- A guardian and/or conservator can be nominated to care for minor children.
- A trust can be established in a will to provide for minor children or other family members needing continuing assistance, and other provisions can be made for children and family members to avoid the need for continuing court supervision.
- Persons with large estates can reduce or eliminate estate taxes with a properly drafted will.
Persons who already have wills should consider changing them under the following circumstances:
- There are changes in the family through death, marriage or divorce. (If a person with a will gets divorced, provisions in the will benefiting the former spouse will not be enforceable. However, it is desirable to change a will after divorce to ensure that property goes to the intended beneficiaries.)
- An intended beneficiary other than a family member dies, or an organizational beneficiary goes out of existence.
- A person named as personal representative (formerly called “executor”) dies or becomes unavailable.
- A person nominated as guardian and/or conservator for minor children dies or becomes unavailable.
- A person named as trustee of a trust established in the will dies or becomes unavailable.
- There is a substantial change in the value or nature of assets.
- The person making the will moves to another state where laws governing wills may be different. (It is always advisable to consult with an attorney in the new state to determine if changes are necessary.)
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