With a will, a person can name a guardian for minor children, name someone as the executor of their estate (referred to as a “personal representative” in Missouri) and name who will inherit their estate. A will becomes effective after death. Prior to death, the executor has no powers to deal with the affairs of the person who drafted the will. Finally, a will does not avoid probate, but merely provides the probate court with a plan regarding the distribution of the decedent’s property and the payment of their debts. It’s up to the executor to “execute” the plan in the will.
When a person dies, their probate estate consists of all property that passes pursuant to the will and all property and cash assets owned at the time of death. This would include all accounts, personal property, vehicles, stocks / bonds, life insurance and retirement accounts. All property that has a joint tenant or which has a nonprobate transfer designation, such as a “POD” or “TOD” (Payable on Death or Transfer on Death) is not part of the probate estate.
As an example, if a married person died with a home owned jointly with their spouse, two jointly owned vehicles and a bank account in their name alone but naming the spouse as beneficiary under a POD designation, they would not have a probate estate. Under the same example, if one of the two vehicles was in their name along and there was no POD designation on the bank account, the probate estate would include the individually owned vehicle and the bank account.
Under Missouri law, a person creating a will has freedom to distribute their estate as they desire. One exception, however, is where the person is married. A surviving spouse can choose either to take by the terms of the will, or ask the probate court to award them 1/3 of the probate estate if the deceased has children or 1/2 of the estate if there are no children.
