What Is a Will?

A Will is a simple estate plan that dictates who will receive your assets upon death. It also directs who will be in charge of administering your estate. St. Louis will lawyer Vince Taormina is more than happy to help.

Overview

We have all heard the horror stories that occur when someone dies without a proper Will or Estate Plan. Michael Jackson and Prince both died without Wills, and it took years to settle their Estate. In fact, in April 2019, three years after his death, Prince's Estate remained unsettled.

If you die without a Will in Missouri, your Estate is known as an "Intestate Estate." Since you died without directing how your Estate should be administered and distributed, the State of Missouri makes those decisions for you. Under Missouri Revised Statute ("RSMo.") § 474.010, if you are married with children at the time you die and you do not have a Will, your Estate will split, with 1/2 going to your spouse and the other 1/2 going to your surviving children. For most people, this is not preferable, and can cause a tremendous amount of familial strife.

So, to avoid the risk of "Intestate Succession," it is of the utmost importance that you create a Will. But what is a Will? Simply put, a Will is a written document, made by a living person, directing who will receive the that person's property upon their death. To create a valid Will in Missouri, RSMo. § 474.320 requires that the Will must:

  1. Be in writing
  2. Be signed by the person making the Will (the "Testator")
  3. Be signed by two disinterested witnesses (i.e. people who will not receive under the Will)
  4. The witnesses must sign in the presence of the Testator

Furthermore, the person making the Will must be of sound mind (i.e. he/she must know that they are creating a Will, and know the consequences of their actions) and not under duress or undue influence by another person at the time of creation. For married couples wishing to create a Will for themselves, it is important to note that while "Joint Wills" are recognized in Missouri, they are almost never used and should be avoided. The preferred method of joint planning for married couples is to have "Reciprocal Wills," or two separate Wills that contain nearly identical provisions.

Similar to a Revocable Living Trust, a Will can be revoked or amended at any time while the Testator is living, competent, and not acting under duress or undue influence by another person.

After the Testator dies, his/her heirs must first find the Will and then present it before a court to prove its validity under Missouri law. After the Will is declared valid, the Personal Representative of the Will (the person appointed by the Testator to distribute and administer the Will) will be tasked with "administering" the Estate. The administration can be done with court supervision or independently. Because families desire autonomy over the distribution of assets and the settling up of the Testator's Estate, most Wills contain provisions providing for the "independent administration" of the Estate. The Personal Representative will then pay any taxes owed by the Testator, pay off the debts of the Testator, and then distribute the property to the appropriate Beneficiaries under the Will, in that order.

Pour Over Wills

When you establish a Revocable Living Trust, or any type of Trust for that matter, you should also have a Last Will and Testament. The main focus of this Will is a "Pour Over," which states that the Residuary Estate (any assets not covered or owned by the Trust) shall be poured into the Trust as if the Trust owned those assets in the first place.

Pour Over Wills protect any assets that were not otherwise titled in the name of your Trust. And while a Pour Over Will may not completely avoid Probate, it is a useful device for ensuring that any property that was not originally named in the Trust is subsequently re-titled in the Trust name.

The Pour Over Will also contains language incorporating the Trust into the Will. One advantage of this is that the terms of the Trust will still apply to the Residuary Estate subject to the Pour Over Will. Moreover, if your Revocable Living Trust contains a "No Contest Clause" (i.e. a provision that prevents your beneficiaries from challenging the Trust), then that No Contest Clause will also apply to the Will, meaning that two separate suits would have to be filed in court. This is an important safeguard against challenges to your estate.

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St. Louis will lawyer Vince Taormina works closely with his clients to ensure that they have proper wills in place so that their families can receive the benefit of their assets after death.

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