Wills - FAQs

Wills - FAQs

What is a will?

A will is a legal document designating who receives your property when you die.  A will does not avoid the probate process in Missouri (consistent with most states) and will need to be admitted to the probate court in order to be legally effective.  In your will, you designate a Personal Representative to carry out the objectives set forth in your will and represent you during the probate process.  The extent of court oversight of the Personal Representative can vary depending on the language of the will, amount of assets in your probate estate, and other factors.  A will can and often should be changed under various circumstances including, but not limited to, family changes (birth, adoption, marriage, divorce, death, etc.), changes in property or assets, to nominate a guardian or conservator for your children, to designate a different Personal Representative, etc.  

There are different types of wills, including a "simple" will and a "pour-over" will.  A simple will usually designates your Personal Representative, identifies who you want to receive your property, and includes properly drafted language to reduce court oversight and/or authenticate the will.  Also, if you have minor or incapacitated children, a simple will can include a nomination of who you want to act as guardian and/or conservator for your children in your absence.  A "pour-over will" is typically used in combination with a trust to avoid probate in whole or in part and can include the same items included in a simple will while providing for any property that is not already in your trust to be transferred (or "poured-over") to your trust via the probate process.

Do I need a will? 

YES!!  If you desire to have a say in who receives your property and who raises your children upon your death, a proper will is a necessary part of your estate plan.

Why do I need a will?

If you die with a proper will in Missouri, you chose who receives your property unless the will is successfully challenged.   Of particular significance, you can nominate someone to serve as guardian for your children to help secure their future.  With a will, you have made plan for your family!  Also, a will can be drafted to potentially reduce the costs of probate.  If you die without a will (or intestate), the property that you alone own will be the subject of a probate court proceeding.  The property will be distributed in accordance with state statute.  Typically, with no will the state statute provides what relatives receive your property and what percentage they receive.  In some instances, the property may go to the state. Further, without a will, the court will not have an opportunity to hear from you regarding who you want to raise your children.  As a result, a judge will be left to listen to witnesses (typically family members) to determine who the judge believes is best qualified to raise your children.   Those seeking to raise your children likely have the best of intentions, but several people may feel they are best qualified to raise your children resulting in family members squabbling in court over who gets to raise your children.  Ultimately, the judge will decide.