In the state of Missouri, a person of sound mind who is 18 years of age or older may create a last will and testament. It is not necessary that a lawyer draft the will, but a lawyer can help with the task. Alternatively, a minor child who has been emancipated by adjudication, marriage or entry into active duty into the military may devise a will.
A will must be in writing and signed by the person devising the property, known as the testator. Alternatively, the will may be signed by another person at the testator’s direction and in their presence.
The will must be attested by two or more competent witnesses who sign their names to the will in the presence of the testator. A handwritten will, called a holographic will, is valid if it follows statutory requirements.
Will Notarization Not Required
State law does not require a will to be notarized. Yet a testator can make a will self-proved at the time it is executed or on a subsequent date. There must be an acknowledgment that the will is self-proved by the testator and the witnesses before a notary or other officer authorized to administer oaths under Missouri law.
The self-proving will be evidenced by the officer’s certificate under official seal attached or annexed to the will. When a will is self-proved, the probate court will accept the will without contacting the two witnesses.
Who May Witness the Will
Any person competent to be a witness in Missouri may act as an attesting witness to a will. A will is not valid if it is attested by an interested witness, meaning a person who will receive property under the will. The will must be attested by two disinterested witnesses.
Additional Written Statements
A will may refer to a written statement or list to dispose of items of tangible personal property that are not otherwise specifically disposed of by the will. The list must contain items other than money, evidences of indebtedness, documents of title, securities and property used in trade or business.
To be admissible, the written statement must be in the handwriting of the testator or signed by the testator, and describe the items with reasonable certainty and the persons or entities receiving the property.
The writing may be referred to as one that is in existence at the time the testator died, prepared for or after the execution of the will, altered by the testator after it was prepared, or be a writing with no significance apart from its effect upon the dispositions made by the will.
Contract to Make a Will
A person may sign a contract to make a will, to revoke or not to revoke a will, or to die intestate, meaning without a valid will. The contract must be established by one of the following:
- Provisions of a will stating the material provisions of the contract.
- Express reference in the will to a contract and extrinsic evidence proving the terms of the contract.
- Writing signed by the person who passed, the decedent, evidencing the contract.
The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.
Requirements for Nuncupative Wills
A nuncupative will, or a deathbed will, is a will made by a person in imminent peril of death or illness. A nuncupative will can be an oral declaration. It is valid only if the testator died as a result of the impending peril. A nuncupative will must be:
- Declared to be the testator’s will by the testator before two disinterested witnesses.
- Reduced to writing by or under the direction of one of the witnesses within 30 days after the declaration.
- Submitted for probate within six months after the death of the testator.
A nuncupative will can dispose of personal property only to an aggregate value not exceeding $500. A nuncupative will neither revokes nor changes an existing will.
No-contest Clauses in Wills
A no-contest clause in a will provides that if a beneficiary or person with a fiduciary responsibility challenges the will, they will not take anything under the will. The term no-contest clause includes an “in terrorem clause,” which applies to beneficiaries taking under the will.
If a will contains a no-contest clause, an interested person may file a petition with the court for a determination of whether a particular motion would trigger application of the clause or a forfeiture under law and policy policy.
Small Estate Affidavit
A small estate affidavit allows a decedent to pass property to beneficiaries without going through the probate process. This alternative is available only for estates worth less than $40,000. The option of a small estate affidavit is available whether the decedent left a will or had no will.
A party must wait at least 30 days after a decedent’s death to file the form for small estate affidavit. The value of the estate may not be over $40,000 after liens, debts and encumbrances have been deducted. If the value of the estate is over $15,000, the estate is required to pay for the court clerk to publish a notice of the filing in a newspaper of general circulation in the county where the decedent lived.
A small estate affidavit must be notarized. The process of filing a small estate affidavit includes waiting 30 days, determining the value of the estate, gathering documents to establish the value of the estate and filing at the probate court.
Election by Surviving Spouse
A surviving spouse of the testator has the option to elect to take "against the will." If the surviving spouse elects this option, they will receive one-half of the estate if there are no children. If there are children, the surviving spouse will receive one-third of the estate.
The surviving spouse’s portion is subject to the payment of claims. The surviving spouse will also receive exempt property and a one-year support allowance. If the surviving spouse elects to take against the will, they take nothing under the will.
When the will provides for benefits to accrue upon the death of the surviving spouse, and the surviving spouse elects to take against the will, the election has the same effect as to benefits as if the surviving spouse died before the testator, unless the will provides otherwise.
Homestead Allowance for Surviving Spouse
The rights of the surviving spouse are not given in lieu of any homestead allowance. Yet a homestead allowance made to the surviving spouse will be offset against the share taken under the election.
Revoking a Will
A written will can be revoked by a subsequent will in writing. It can also be revoked if the testator burns, cancels, tears or obliterates the will, or another person does so in the testator’s presence, with the testator’s consent and at their direction. If a second will that would have revoked the first will in whole or in part is later revoked by a third will, the first will is also revoked in whole or in part.
Property Given by Testator
When a testator gives property during their lifetime, it may be treated as a satisfaction of a devise (transfer under the will) only if the will provides for the deduction of the lifetime gift. Alternatively, the testator must declare in a contemporaneous writing that the gift is to be deducted from the devise or in satisfaction of the devise.
Another way for the gift to satisfy the devise is for the devisee to acknowledge in writing that the gift is in satisfaction. For the purpose of partial satisfaction, the property is valued as of the time the beneficiary came into possession or enjoyment of the property or as of the time of the testator, whichever occurs first.
If a devise of property, other than a residuary devise, fails for any reason, that property becomes part of the residue of the estate. An exchange of corporate stock, bonds, promissory notes or other securities for instruments from the same corporation or obligor does not revoke a legacy of those instruments.
Deposit of Will in Court
A will may be deposited by the testator or their agent with the probate division of any circuit to be safely kept until it is to be delivered. The clerk of the court will receive and keep the will and provide a certificate deposit for it. The will shall be sealed in an appropriate manner approved by the circuit court. The clerk of the court will endorse the will on the day it was delivered.
The will shall not be opened or read until it is delivered to a person entitled to receive it. While the testator is still alive, the will shall only be delivered to them or a person authorized by them in writing proved by the oath of a subscribing witness. After the testator’s death, the clerk must notify the person named in the endorsement on the wrapper of the will.
If the will is not delivered to the person named in the endorsement, it will be publicly opened in the court within 30 days after notice of the testator’s death. The will shall be retained by the court until offered for probate.
Court Notice to the Executor
The court will give notice to the executor named in the will and other persons as the court may designate. If the proper venue is in another court, the will shall be given to that court. Before the transmission, a true copy of the will must be made and retained in the court where the will was deposited.
A will that has been proved and admitted to probate and has not been rejected by the court must be received as evidence in all Missouri courts. The wills will be kept in the records of the court for 10 years.
When Real Estate Devised by Will
In a case where land is devised by the last will, a copy of the will must be recorded in the recorder’s office in the county in which the land is situated. If there are multiple lands in different counties, a copy of the will must be recorded in each recorder’s office in each county within six months after probate.
When there is a devise of land in a will in which the words “heirs and assigns” or “heirs and assigns forever” are omitted, the language will be meant to convey fee simple, or a permanent and absolute tenure of the land. There must be no expressions in the will that imply that the devise was intended to convey an estate for life only. There also must be no further devise of the premises.
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.