Wills and Why You Need One

What is a will?

A will is a legal document that sets forth who will receive your property when you die. It can also include instructions for payment of any debts you owe at the time of death as well as identify who will care for any minor children who might survive you. You must be at least 18 years old and of sound mind (sometimes referred to a “having capacity” or a “capable adult”) to make a will. Each state has a set of laws governing wills. Therefore, if you move out-of-state after creating a will, a lawyer in the state you move to should review the will in order to ensure it is still valid. Be aware that a will does not avoid the necessity of probate and must be “probated” to have legal effect.

A will disposes of the property in your estate, which is all the property you own solely in your name when you die. You may give your property to any person or organization you choose, in any manner you choose. Some laws limit what you can do in a will, and you should seek the advice of a lawyer to ensure that what you want to do can be done successfully. A will should designate a personal representative (sometimes referred to as an executor) as the person who will be in charge of your estate after you die. This person is responsible for ensuring you wishes are carried out after your death. Your spouse can choose a certain amount, specified in a state statute, from your estate if he or she does not like your will.

In Missouri, a will is legal when signed by the person making the will and the signature witnessed by two people. A will is “self-proving” if a special clause is used when the witnesses sign and the maker’s signature is acknowledged by a notary public. This makes the process of probating a will easier and less costly.

Why have a will?

There are many reasons to have a will. These include:

  • Saving some costs by waiving bond and providing for independent administration.
  • Identifying who will receive your valued personal belongings in a list referred to in the will. You can change the list without changing your will.
  • You, and only you, decides who receives your property.
  • Nominating a guardian for your minor children.
  • Designating whether or not you want to make anatomical gifts.
  • Providing for minor or disabled children in a trust without court supervision by appointing a conservator to take care of what they would receive.
  • Setting up a trust for your family.
  • Saving on some death taxes.
  • Stating what you want done with the damages you receive if you die in an accident caused by another person.
  • Knowing that you have planned for your family.


How To Change or Cancel a Will

A will lasts until changed or canceled by its maker. It can be changed by creating a codicil, but the codicil must be made with the same formalities as when the will was signed. Because of this, many times it is easier to execute a new will rather than creating a codicil. You should consider changing your will if:

  • Your family changes through marriage, divorce, birth or adoption of children, or death or disability of a member of your immediate family.
  • A person or organization you named to receive a portion of your estate dies or ceases to exist.
  • Your family, property, money, or other assets change in value or nature.
  • You move to another state.

Proper creation of a will cancels all previous wills. Another way to cancel a will is to destroy the original and any copies.

Do I Really Need a Will?

There are ways to transfer certain property without a will. These options include:

  • Property or bank accounts titled jointly with another or others.
  • Life insurance policies and some annuities are ways to own property and provide for their transfer upon your death to named beneficiaries.
  • Non-probate transfers such as beneficiary deeds for real estate, pay-on-death provisions on bank accounts and certain other assets, and transfer-on-death provisions on motor vehicle titles, stock certificates, and brokerage accounts.
  • Individual retirement accounts (IRAs) and employer retirement plans with employee contributions are ways to provide for their transfer to named beneficiaries upon your death.
  • Property held by a revocable living trust (but you should still have a “pour­ over” will).
  • Missouri ‘s law of intestate succession.

These and other methods not mentioned here should be used in place of a will only after you have talked to a lawyer. However, you should always have a will in addition to these other techniques as a safety net to cover those items that are not “titled” assets. So, yes, you really need a will!