FREQUENTLY ASKED QUESTIONS – WILLS

What is a will?

A will, often referred to as a last will and testament is a legal document that contains the final wishes of a person with respect to their property.  The person creating the will, called a testator, leaves instructions in the document regarding how to distribute their personal property, real property, money and other assets.  The person(s) who receives the property in the will is called a beneficiary. The will also leaves instructions from the person about who is charge of distributing the property.  That person is called a personal representative. In some states they are referred to as an executor.

Why should you have a will?

Without a will, a person can risk having their property end up in the hands of a person they never intended to have their property.  Each state has different rules, called laws of intestacy, that govern who gets a person’s property when a person dies and does not have a will.  Not having a will can make this process much more difficult than if the person had a will that had their beneficiaries named.

Are there other benefits of having a will?

Yes.  A will is the document in which a parent of a minor child names a guardian to ensure they are cared for if the parent passes away.  Without wills in place to name guardians, if both parents of a child or children die, a court will appoint the guardian to take custody of the children and a conservator to manage the inheritance of the children.  By having a will in place, parents can ensure that the people they choose are the guardians of their children if they pass away.

What are other benefits of having a will?

The person creating their will can express their final wishes for burial or cremation and can state whether they want to be an organ donor.  Having a will also helps to avoid family disputes, which can increase the cost of administering the estate and delay the process. A properly written will can also result in estate tax savings to the testator, which can save significant money to the beneficiaries named in the document.

What are some common terms used with wills?

As stated above, the person creating a will is called a testator.  The people named in the will to inherit property are called beneficiaries and the person who is in charge of the estate, including distributing property to beneficiaries are called personal representatives.

Bequeathing property means giving personal property away by a will, whereas devising property means giving real property (land and/or a home) by a will.

A codicil is a document which alters the original will document, either by adding terms, deleting terms or otherwise modifying existing terms.

Does a will have to be witnessed?

Yes.  In Missouri, a will must be witnessed by two individuals over the age of eighteen (18) years.

Does creating a will avoid probate?

No.  Probate is the process by which the estate of a person is administered, usually in the county of the state in which they passed away.  A will does not avoid probate, but it is the document which must be filed with the probate court to begin the administration of a person’s estate.

Is a last will and testament the same thing as an estate plan?

No, but it is part of an estate plan.  A complete estate plan includes other documents.  A person with just a will does not have all the protection they need.  Only a complete estate plan can provide that.

Can I cut my spouse out of my will?

That depends on your circumstances in Missouri.  If you have an enforceable prenuptial agreement then possibly, depending on the terms of the document.  If you do not have a prenuptial agreement you can leave your spouse out of your will but he or she will still have the right to inherit at least some of your individual property when you pass away.  The percentage depends on whether you have children and whether the spouse is the biological parent of those children or some of them.