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Requirements of last will and testament

Any person over the age of 18 who is of sound mind may create a will in Missouri.  There are a few requirements, however.

First, a will in Missouri must be in writing.   Second, it must be signed by the testator, the person creating the will, or at their direction.  Finally, the will must be attested by at least two competent witnesses who sign the will in the testator’s direction.  A witness does not have to be over 18, but it is always better to use an adult witness.  A Missouri will does not need to be signed on every page.

A will is not invalidated if one of the witnesses is an “interested witness” or a person having a property right or claim against the estate.  However, if the interested witness is receiving more than they would receive if the testator died without a will, the interested witness forfeits the stated amount.

Example:  Dad is a widower and has a son and a daughter.  He has a will drafted that leaves his son 75% of his estate and only 25% of the estate to his daughter.  Son is a witness while Dad signs the will and daughter is not a witness.  Under the laws of intestacy (dying without a will), son would normally be entitled to half the estate and daughter would be entitled to the other half, since Mom has predeceased Dad and they are the only heirs of the estate.  Since son witnessed will, he will forfeit 25% of his inheritance and only received 50%.

Missouri allows self-proving wills.  A self-proving will is one that contains an affidavit usually signed by a notary that states, among other things, that the testator was of sound mind when the will was signed, that the signature was provided in the presence of the witnesses, without undue influence and in the presence of the witnesses.

If the will is self-proving, it is considered by a court to be substantial evidence that the testator had capacity and that the will was properly executed.  Perhaps more importantly, it shifts the burden of proving that the testator lacked capacity to the party making such a claim.

A will may be revoked by a new will, or if the will is purposely destroyed by the testator.

Terms of a will may be changed by the publication of a new will called a codicil.  There is no limit to how many codicils can be drafted, but the testator must have capacity to create a codicil, just as with the original will.


Changing an estate plan…

Changing Estate Plan





I spend a good amount of time each month reviewing existing estate plans of former clients and non-clients. Very often the estate plans I am reviewing are those of    a pair of empty nest parents, who want me to review the wills they created when their first born child was born. This is a very common scenario and I applaud these people for understanding that their estate plan needs change over time.

Here are just a few examples of when it’s a good idea to have your estate plan reviewed.

1. Your old plan was drafted when you either had no children or before all of your children were born.  This is a common scenario and one in which we need to change your estate plan, as we want to make sure no one is accidentally cut out of your estate by reason of being born after you created your estate plan.

2.  You have created significantly more wealth since your initial estate plan.  This is a good problem to have, but one in which we need to make sure your estate plan still accounts for having a larger estate.  Chances are it doesn’t.

3.  We have a family member with special needs.  Means tested benefits such as Medicaid and Social Security can be lost if a child or other designated beneficiary has special needs but receives an inheritance which disqualifies them from the benefits.  The fix for that is called a Special Needs Trust.  If you have a beneficiary who has special needs, you need to review your existing estate plan to make sure the disability they have is properly planned for and incorporated into your estate plan.

4.   You have since divorced.  Statistically, half of the marriages in this country end up in divorce.  So there are a lot of broken estate plans sitting around.  There are also beneficiary designations which need to be changed.

5.  The people you named to be in charge are no longer in good health or you have lost touch.  Twenty and thirty year old estate plans often run into this problem.  If you created an estate plan that named your good friends as the guardians of your children or the executors of your estate and for whatever reason you are no longer good friends with those people, it’s time to make a change.  Maybe Aunt Phyllis is too old to be burdened with serving as your durable power of attorney.  Maybe your brother Greg, who used to be a bachelor with plenty of free time, can no longer serve as the trustee of your kid’s trust because he has kids of his own.  All of these scenarios are common and a major cause of needed changes to an estate plan.

Whatever the reason, it is important that your estate plan changes as your needs changes.  Our office will ordinarily review estate plans for free and can usually do so after reviewing the existing documents and a consultation.