A will is one of the basic estate-planning tools. Whether alone or in conjunctions with trusts and other instruments, a will can provide an effective way to allocate your property.
Missouri law sets forth some essential technical requirements. Getting them wrong can cause the probate court to invalidate a will and proceed to distribute the estate as per Missouri’s intestacy laws.
Requirements for the will
In Missouri, a will must be in writing. The testator must sign the will or, if physically incapable of doing so, instruct someone else to sign the will in the testator’s presence. Two witnesses should be present at the signing and then sign the will in front of the testator.
A self-proving will is helpful, but not mandatory
While the law does not require a will to be self-proving to be valid, many people do opt to have one, as it can make the probate process go quicker and smoother. This requires the testator and witnesses to go before a notary and sign a statement that the testator and the witnesses signed the will and otherwise performed everything in accordance with relevant law.
Requirements for the testator
The testator must be 18 years or older. He or she must possess testamentary capacity, which generally means knowing the approximate extent and type of property one owns, understanding what it means to leave property in a will and knowing who one’s family members are.
Because testamentary capacity is typically a lower threshold than other kinds of legal capacities, a previous ruling of incapacity in a different context does not automatically mean an inability to make a will. While a diagnosis of a condition involving cognitive impairment is also not conclusive evidence of incapacity, it can raise potential issues later on. For this reason, testators who believe someone may later challenge the will on this basis sometimes choose to undergo a cognitive assessment to establish capacity.
Revoking a will
It is a good idea to periodically review your will, especially when you undergo a major life change such as a divorce. You can revoke an old will by making a new valid will or completely destroying the old one. If you destroy a will and do not make a new one, intestacy laws will likely apply.