Feb 22, 2015 | Estate Planning

Wills are the oldest form of estate planning.

In order for a will to be valid, it must be written, signed, and witnessed by two people. In order to help prevent a challenge to your will, the witnesses should be disinterested individuals. The individual creating the will must be at least 18 years old and must be of sound mind. In order to help establish sound mind, it can be useful to videotape the execution of your will. A will can be amended through the use of a codicil or replaced entirely by the creation of a new will. An individual who dies without a will or any other estate plan is said to die intestate. An individual who dies without a will or any other estate plan is said to die intestate. If an individual dies intestate, state statute will dictate how and to who the individual’s property is distributed.

A will is an important part of any estate plan because it directs the distribution of property that is forgotten or omitted from the plan. Thus, wills serve as important estate planning safety nets. However, while a will is a necessary catch-all and should be included as a part of any estate plan, a will should rarely, if ever, be the primary vehicle for an estate plan.

A will passes through probate. Probate is undesirable for several reasons. First, probate is expensive. Any estate (assets such as real estate and personal property) that passes through probate will lose a portion of its value due to court costs and fees. In many cases, that can mean thousands of your hard-earned dollars passing to the government and other parties simply because of poor planning.

Probate is unfavorable for other reasons. Probate takes a long time: a minimum of 6 months, but often over 1 year. Probate is also public: your assets and debts are public information to any interested party. Finally, your family has limited control over the process.

Fortunately, there are alternatives. Non-probate transfers of real property, such as beneficiary deeds, allow your real property to avoid probate. Non-probate transfers of personal property enable your titled and non-titled personal property to avoid probate through a combination of beneficiary, pay-on-death, and transfer-on-death designations. Trusts avoid probate. The revocable living trust is often the best trust for estate plans primarily designed to avoid probate.

If you have additional questions about wills or are ready to have one prepared, call or come visit the probate and estate planning attorneys at the Paul Law Firm. Consultations are always free!

The Missouri Bar has put together a fantastic introductory publication titled “Probate Law and Resource Guide.” Here is the excerpt regarding wills:

What These Words Mean

Estate – the property you own in your name alone when you die.

Personal Representative – the person in charge of your estate, usually nominated in your will. May also be referred to as “executor.”

Trust – property set apart, sometimes in a will, for a certain purpose.

What Is a Will?
A will is a legal paper that states who receives your property when you die. Each state has its own laws about wills. A will does not avoid the necessity of probate and must be “probated” to have legal effect. You may title your property in other ways so that probate is not necessary.

Who Can Make a Will?
Any person who is at least 18 years old and of sound mind can make a will.

When is a Will Legal in Missouri?

In Missouri, a will is legal when it is signed and the signature was witnessed by two people. A will can be changed through a codicil with the same formalities as when the will was signed. For that reason, it is usually easier to replace with a new will. A will is self-proving if a special clause is used when the witnesses sign and the maker’s signature is acknowledged by a notary public. An earlier will may be canceled by properly executing a newer will. You can cancel your own will by destroying the original and any copies you may have made. Missouri courts recognize wills executed in other states if properly done under their laws.

What If You Die Without a Will?
Property that you owned alone goes to your close relatives and sometimes to more distant relatives. If no relatives are found, a highly unusual circumstance, your property goes to the state. Without a will to indicate your choice, a decision as to who receives your property is set by law.

To Whom Can You Give Your Property?
You may give your property to any person or organization you choose, in any manner you choose. Some laws limit what you can do in a will, and you should seek the advice of a lawyer to assure that what you want to do will work. Your spouse can choose a certain amount, specified in a state statute, from your estate if he or she does not like your will.

Why is It Better to Have a Will?
• You can save some costs by waiving bond and providing for independent administration.
• You can say whom you want to receive your valued personal belongings in a list referred to in the will. You can change the list without changing your will.
• Only you decide who receives your property.
• You can nominate a guardian for your minor children.
• You can say whether or not you want to make anatomical gifts.
• You can provide for minor or disabled children in a trust without the court having to supervise by appointing a conservator to take care of what they would receive.
• You can set up a trust for your family.
• You can save on some death taxes.
• You can say what you want done with the damages you receive if you die in an accident caused by another person.
• You will know that you have planned for your family.

How Long is a Will Legal?

• Until changed or canceled by you.
• A will benefitting a spouse will not be enforceable if you get a divorce.

When Should You Think About Changing Your Will?

• Your family changes through marriage, divorce, birth or adoption of children, or death or disability of a member of your immediate family.
• Your family, property, money, or other assets change in value or nature.
• You move to another state.

What Can Take the Place of a Will?
• Property or bank accounts titled jointly with another(s).
• Life insurance policies and some annuities are ways to own property and provide for their transfer upon your death to named beneficiaries.
• Non-probate transfers such as beneficiary deeds for real estate, pay-on-death provisions on bank accounts and certain other assets, and transfer-on-death provi¬sions on motor vehicle titles, stock certificates, and brokerage accounts.
• Individual retirement accounts (IRAs) and employer retirement plans with employee contributions are ways to provide for their transfer to named beneficiaries upon your death.
• Property held by a revocable living trust (but you should still have a “pour-over” will).
• Missouri’s law of intestate succession.

These and other methods not mentioned should be used in place of a will only after you have talked to a lawyer. You should always have a will in addition to these other techniques as a safety net to cover those items that are not “titled” assets. These techniques, if used correctly and under the right circumstances, may en¬able you to totally avoid probate.

Who Can Write a Will?

Any capable adult can by law, but there are many pitfalls and, if proper technical language is not used, certain bequests or the entire will may become unenforceable. Only a lawyer can write a will that you can be sure will be legal.

Check out the rest of the Missouri Bar’s Probate Law and Resource Guide

Related Topics

Non-Probate Transfers: Personal Property

Non-Probate Transfers: Real Property


Revocable Living Trusts

Testamentary Trusts