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Common myths about wills…

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Myth 1 – A Will avoids probate.

In Missouri, unless the assets of the estate are less than $40,000, probate is generally required.  If real estate is located in other states, then what is known as an ancillary probate may be necessary in each state where real property is owned by the decedent.  In Missouri, a will cannot be filed until 10 days after death and during the first 6 months assets are generally frozen and distributions to beneficiaries may not be made since claims can be filed during this period.

Myth 2 – A Revocable Trust eliminates the need for a Will.
A Will is necessary to transfer items to the Revocable Trust if it was not fully funded during lifetime. In addition, guardians for any minor children are nominated under a Will.

Myth 3 – A Will takes effect upon incapacity.
A Will only has legal effect at death. Upon incapacity, agents under Powers of Attorney for Property and Health Care may be empowered to act, otherwise a Guardian must be appointed and a proceeding in guardianship court initiated.   Thus, Powers of Attorney are hugely important.

Myth 4 – You can disinherit anyone, including your spouse, under a Will.
In Missouri, a testator can disinherit their children and almost anyone else.  However, they cannot fully disinherit his spouse, unless both spouses have waived the right to be included in each other’s estate in an enforceable pre-nuptial or post-nuptial agreement. Each state has laws that shield a surviving spouse from being disinherited. In Missouri, the surviving spouse receives a minimum of the estate which depends on whether the decedent had children from a prior marriage, whether the decedent and the surviving spouse had children together or no children were born of the marriage or in a prior marriage.

Myth 5 – A Will is a private document.
Missouri requires that a Will be filed with the county in which the Testator resided.  After a year has passed, a will is considered to be invalid. However, once filed, any member of the public can access and review the document at the courthouse