Wills
wills

Requirements to Execute a Will
Section 474.320 RSMO sets forth three requirements to execute a will in Missouri. The Statute requires that every will be in writing, signed by the testator, or by some other person at the testator’s direction and in his presence and it must be attested by two or more competent witnesses who sign in the presence of the testator. Section 474.310 RSMO also requires the individual to be of sound mind and eighteen years of age in order to execute a will.

Testamentary Capacity
In order to possess the necessary testamentary capacity in Missouri to execute a will, a person must be of sound and disposing mind and memory. Missouri Approved Jury Instruction (MAI) 15.01 defines the phrase sound and disposing mind and memory. That phrase means that when a person signed the will that he or she was, first, able to understand the ordinary affairs of life, second, able to understand the nature and extent of his or her property, third, able to know the persons who were the natural objects of his or her bounty and, fourth, could intelligently weigh and appreciate the natural obligations to those persons.

The first requirement of MAI 15.01 requires the testator to understand the ordinary affairs of life is an inexact definition and open to many interpretations. It might mean that the person is oriented as to time and space. Some cases have discussed this factor and held that the individual executing the will needed to be able to understand the necessity of providing for the daily needs of life. It has also been interpreted as not being required to understand complicated business transactions. The testator must understand the nature of the transaction of executing a will. This is a basic requirement that the testator know he or she is signing a will. If the testator cannot understand that he or she is executing a will, then the testator lacks the necessary capacity to execute the will.

The second requirement of MAI 15.01 is that the testator must understand the nature and extent of his or her property. The testator needs to understand the nature and extent of his property so that he or she can determine who the beneficiaries of the will are and what each beneficiary should receive. This does not mean that the testator must have a perfect knowledge of the assets and liabilities in his or her estate. A general knowledge of the nature and extent of the property will suffice.

The third requirement of MAI 15.01 is that a testator must understand the natural objects of his bounty. The knowledge may be general in nature but clearly the testator should know the names and number of his or her children. Additionally, it is not uncommon to expect that the testator know the name of his or her spouse, if any.

The last requirement of MAI 15.01 is that a testator must be able to intelligently weigh and appreciate the natural obligations to the objects of his or her bounty and understand the disposition of the property as set forth in the will. This requirement focuses on the disposition of the testator’s assets. The testator must have the required understanding of who the testator desires to name as beneficiaries of his or her estate plan.

As set forth in MAI 15.01, the testator must have satisfied all four requirements at the time of the execution of the will in order to be of sound and disposing mind and memory.

Self-Proving Will

In 1980 Missouri added a statute which provided that wills could be self-proved. A self-proved will is a will that is admitted to probate without the necessity of obtaining the testimony of the subscribing witnesses. Section 474.337 RSMO provides that a written will may at the time of its execution, or at any subsequent date, be made self-proved, by the acknowledgment thereof by the testator and the witnesses, each made before an officer authorized to administer oaths under the laws of this state, and evidenced by the officer’s certificate, under official seal, attached or annexed to the will.

Section 473.065 RSMO provides that if a will appears to have the required signatures and a certificate as provided in Section 474.337 RSMO, showing that the requirements of execution under Section 474.320 RSMO have been met, then the will shall be probated without further proof.

The Statute provides a suggested affidavit in order to make the will a self-proving will. Section 474.337 RSMO. A self-proving will has been held in Missouri to be prima facie evidence of testamentary capacity and due execution.

Will Contests and Undue Influence
There are times when a will contest action will be filed challenging the will admitted to probate and seeking to set aside the will. Missouri’s will contest statute, Section 473.083 RSMO has as its sole purpose to determine whether the will in question is the valid last will of the testator. There are many reasons to file a will contest, which include but are not limited to, lack of capacity, improper execution, fraud, forgery, mistake, duress, insane delusion and undue influence. Many times undue influence will be alleged as the reason for attempting to set aside the will.

Undue influence has been described in Missouri as influence of such force, coercion, or over-persuasion as to destroy the free agency and determination of the testator. MAI 15.03 defines undue influence as the influence to destroy the free choice of the person making the will. These definitions have in common the actions of a third party resulting in an unwilling testator executing a will as directed by the influence exerted by the third party. Undue influence is usually proved through circumstantial evidence. What constitutes undue influence is typically dependent upon the mental stability and independence of the testator. What could be undue influence in one case might not be undue influence in another case.

In Missouri, a presumption of undue influence arises upon a showing of all of the following: a confidential or fiduciary relationship existed between the testator and the beneficiary; the beneficiary received a substantial bequest by the will; and finally, the beneficiary was active in procuring the execution of the will. Attorneys in Missouri will typically include an allegation of undue influence in a will contest action because when all three of these prongs are satisfied a prima facie case of undue influence has arisen and then the case is submissible to the jury, regardless of any rebuttal testimony. In other words, the attorney who has met the requirements of the presumption of undue influence is assured of having his case heard by the jury. Consequently, the allegation of undue influence is frequently alleged in will contest actions.

Citation to Produce the Will
When an individual passes away Section 473.043 RSMO requires that the person having the custody of the will deliver it to the probate division of the circuit court which has jurisdiction of the estate.

If a will is in the safe deposit box of the decedent, the Statute requires that the custodian deliver the will to the proper probate court. The Statute also provides that if the probate division of the circuit court is satisfactorily informed that any person has in his possession the will of any testator, and refuses to produce the same, the court may summon the person, and compel that person, by attachment and commitment, to produce the same.

Presentment to Probate Court
Section 473.050 RSMO provides that in order for the will of the decedent to be valid, it must be presented to the probate court within one year after the date of death of the decedent. According to the Statute, presentment is defined as either an affidavit requesting that the will be admitted to probate or a petition which seeks to have the will admitted to probate court. Attorneys will usually seek to have the will of the decedent admitted to probate court in order to ensure that it is valid after one year.

Typical Clauses found in Wills
It is quite common to have a provision in the will waiving the bond requirement. Section 473.160 RSMO states that when the testator provides instructions in the will that no bond be required of the personal representative, no bond shall be required unless the court, in its discretion, finds it proper to require it.

It is also quite common for the will to provide for independent administration, without adjudication, order or supervision. Section 473.780 RSMO provides that when a will admitted to probate authorizes or directs independent administration, either by specific reference to this section or by language providing that the estate be administered without adjudication, order or direction of the court, the letters testamentary shall provide that the personal representative named therein may administer the estate independently.

If a testator has minor children, he or she will want to name a guardian in the will. After the testator’s passing the guardian named in the will can file a petition for guardianship on behalf of the decedent’s minor children.

If you created a living trust as part of your estate plan, you will typically execute a pour-over will. A pour-over will designates your living trust as the beneficiary of the will. It functions as a safety net and pours-over the assets you neglected to title into your living trust during your lifetime.

Compensation of Personal Representatives, Accountants and Attorneys
Personal representatives, accountants and attorneys can receive compensation pursuant to Section 473.153 RSMO.

Personal representatives and attorneys are compensated based upon the following schedule:

  • 5 percent of the first Five Thousand Dollars;
  • 4 percent of the next Twenty Thousand Dollars:
  • 3 percent of the next Seventy Five Thousand Dollars;
  • 2.75 percent of the next Three Hundred Thousand Dollars;
  • 2.5 percent of the next Six Hundred Thousand Dollars; and
  • 2 percent on everything over One Million Dollars.

The compensation schedule set forth above is the minimum compensation which is to paid to the personal representative and the attorneys. Section 473.153 RSMO provides that in any case where reasonable compensation to the personal representative and the attorneys is in excess of the minimum provided in the schedule the court shall allow such additional compensation as will make the compensation of the personal representative and the attorneys reasonable and adequate. Section 473.153 RSMO also provides that the performance by the personal representative and the attorneys of extraordinary services is not necessary to entitle them to such additional compensation.

Section 437.153 RSMO allows a personal representative to employ independent accountants, certified public accountants or tax specialists holding a valid permit to practice before the United States Treasury Department to assist the personal representative in filing the appropriate federal and state tax returns and such persons are allowed reasonable compensation for such services as determined by the court. If however, the court finds that any accountant’s services or actions in connection therewith are wrong, improper or injurious to the estate, no accountant fee whatsoever shall be allowed.

What should be included in your will is unique to your specific fact situation. The Missouri licensed attorneys at the law firm of Gregory E. Robinson, P.C., have over fifty years combined experience and they can assist you if you have questions regarding drafting a will. They will work with you to resolve your concerns regarding the probate process. Gregory E. Robinson has twenty-five years of experience assisting clients through the probate process. He meets with each of his clients personally to ensure that their questions are answered and he helps navigate them through the complexities that can arise during the probate process. The Missouri licensed attorneys at the law firm of Gregory E. Robinson, P.C., have the experience to advise you regarding how to proceed with drafting a will.

If you have questions regarding the probate process in Missouri, please feel free to watch one of my videos which discuss the probate process in more detail.

If you are wondering how you might avoid the probate process in Missouri, please feel free to watch my video, A brief Guide to Living Trusts.

If you have any questions regarding the probate process in Missouri, please feel free to contact the law offices of Gregory E. Robinson, P.C., at 636 532-9500.

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