A Last Will and Testament is a document that outlines how an individual wants his or her assets distributed upon death. Missouri has certain requirements for a will to be valid. One such requirement is it must be in writing. It must be signed by the testator; the testator is the person who is making the will. Also, it must be signed by at least two witnesses. The witnesses must be present when the testator signs the will.
Any person over the age of 18 of sound mind can create a will. Sound mind means that the person knows who he or she is, knows who is his/her heirs, knows what property he or she has, and has not been deemed legally incompetent in a prior proceeding. Further, the testator cannot be under undue influence or duress while making his/her will. Undue influence is when a person of power, such as a caretaker, takes advantage of the testator so that the will provides for the person of power in a beneficial way. Without the influence of this person, the testator would not have provided for the person so generously in his/her will.
One reason that many young couples with children chose to make a will is to nominate a guardian for their children. However, the nominated guardians must still be approved by the Probate Court. In other words, the nominated guardians are not automatically named the guardians of the child by the Probate Court. A hearing will be scheduled to determine if the nominated guardians are in the best interest of the minor child. The Probate Court does take into consideration the desire of the deceased parents.
A will does not have to provide equally for each family member or provide for a family member at all. For instance, a parent who has three children can have a will that provides for only two of the three children. Many times this occurs when the parent does not want assets to go to a child that will squander the assets due to gambling, drug use, or financial irresponsibility.
A will may provide for certain assets going to certain individuals. For example, the testator may want all jewelry or just the diamond engagement ring to go to Mary. The testator has the ability to provide for each asset as he or she sees fit. Real estate, personal property that is tangible or intangible, cash, and all other types of property can be divided in a will. Further, the will can provide for individuals who are family, friends, colleagues, organizations, and churches or synagogues.
Also, a will allows the testator to make contingency plans if someone should die before the testator. For example, the testator may want to leave her favorite painting to Sally, but if Sally dies before the testator, the testator wants the painting to go to her nephew, Dan. The testator can make as many contingency plans as he or she feels necessary.
One misconception about a will is that if a person has a will probate will be avoided automatically. A will does not avoid probate. Probate avoidance techniques must be used to avoid the probate process. The will is a document that the Probate Court looks to for instructions as to how the deceased person wants his or her assets divided.