Missouri Wills, Trusts, and Probate

Estate planning mechanisms, though not often a concept that crosses our minds, are of great importance to ensure that your family, friends, and other loved ones are taken care of after your death. The most commonly used estate planning tools, wills and trusts, are complicated tools that often require professional help to ensure their legal validity. Regardless of your age, wealth, or marital status, one should seriously consider preparing for the distribution of his or her estate upon death. The information provided below will help you gain an understanding of the different estate planning mechanisms and processes in Missouri. When creating a will or trust, a Missouri estate planning attorney should be consulted to ensure that a person's estate and well-being will be properly taken care of after his or her death.

Missouri Will

A person's will must adhere to all of the requirements under Missouri law in order to be legally recognized in court. You should speak with a Missouri will attorney to insure your will is valid. Missouri has two types of wills:

1. Non-hand-written will. A will that is not in your own handwriting (e.g. typed will) must include:
1. Competent person—the creator of a will must be: (i) of a sound mind (mentally competent), and (ii) at least 18 years old or a minor emancipated by a court;
2. Writing—the will must be in writing;
3. Signature—either the testator (the person whose will it is) or another person following the testator's direction and in the testator's presence must sign the will;
4. Witnesses – two or more competent witnesses must observe the testator's signature and sign the will after doing so.
   
   
2. Nuncupative will—a will made in contemplation of imminent death. This type of will cannot distribute personal property greater than an aggregate value of $500. An existing written will is not affected by the creation of a nuncupative will. The following requirements must be met to have a valid nuncupative will:
1. Witnesses—two individuals that are not beneficiaries under the will must see the testator declare he is leaving this will;
2. Writing—the testator's words must be put in writing within 30 days after his or her declaration;
3. Impending and Actual Death—the testator must think he or she is in imminent peril of death and die as a result of this peril;
4. Probate—within 6 months after the testator died, the writing of the testator's words must be submitted into probate.

Changing a Will in Missouri

The following options are available to change a will in Missouri:

1. Creating a subsequent will in writing
2. Physically destroying the prior will and making an entirely new will;
3. Divorce or annulment of marriage

Through the first option, creating a subsequent will revokes the first will in whole or in part (depending on what is expressly or impliedly revoked by the second will). The only exception to this is that the circumstances of the second will conveys that the testator intended for the first will to take effect. Through the second option, physical destruction of the will revokes all or part of it, depending on the nature of the destruction. The final option of divorce or annulment will revoke any provisions in the will that benefit the now former spouse.

Problems, questions, or concerns that arise during the creation of a will should be addressed by consulting a Missouri wills attorney.

Missouri Trusts

A trust is another estate planning mechanism that allows you to distribute your assets at a specific time and in a specific manner. The variety of trusts recognized in Missouri includes private foundations, life insurance trusts, charitable trusts, and split interest trusts. In regard to charitable trusts, the following charitable purposes are recognized under Missouri law: a) relief of poverty; b) advancement of education or religion; c) promotion of health; d) governmental or municipal purposes; or e) other purposes that benefit that community.

It should be noted that Missouri law allows the creation of an oral trust as long as the terms of the trust are shown by clear and convincing evidence. When creating a trust, many questions arise that may require the advice of counsel. As such, one should consult a Missouri estate planning attorney to help you create your ideal trust that fits your particular needs.

Missouri Probate

The probate process takes effect upon one's death. During this process, one's estate will be distributed according to either the testator's wishes in the will or according to intestate succession. If the deceased left a will, then the distribution will be according to the will. Otherwise, a Missouri court will distribute the assets according to intestate succession when no will is left.

Missouri's intestate succession law allows the following people to hold interests (non-exclusive):

1. Spouses
2. Descendants – children, grandchildren, etc.
3. Parents
4. Brothers & Sisters
5. Grandparents
6. Uncles and Aunts

A few things should be noted regarding certain classes in the intestate succession hierarchy. In regard to children, a child claiming intestate succession must show that a parent-child relationship existed in order to inherit from the testator. If a child is adopted, the adopted child is considered the child of the adopting parents and not the natural parents. Additionally, posthumous children (child born after a parent dies) inherit the same as children born in the lifetime of the testator. Therefore, posthumous status does not affect a child's inheritance. In regard to spouses, a former spouse's inheritance is nullified upon divorce or annulment of marriage from the testator.

Due to the importance of the probate process in the distribution of your estate, you should consult a Missouri estate planning attorney when deciding whether to create a will or trust.

Missouri Statutes

Title XXXI—Trusts and Estates of Decedents and Persons Under Disability

1. Wills
1. Missouri Statutes, Tit. XXXI, Chp. 474, §§ .310 – .530
2. Trusts
1. Missouri Statutes, Tit. XXXI, Chp. 456, §§ .001 – .035
2. Missouri Statutes, Tit. XXXI, Chp. 456, §§ 1-101 – 4.410
3. Probate
1. Missouri Statutes, Tit. XXXI, Chp. 474, §§ .010 –.300