Why Have A WILL?
1. 2. 3. 4. 5. 6. 7. 8. 9. 10.
11.
Avoid intestate distribution of property Nominate guardian for minors/incompetents Minimize federal estate taxes Name personal representative (executor) Make specific gifts of personal items Create trusts (testamentary trust) Divide assets between husband’s and wife’s relatives Provide for in-laws Provide for charities, churches, organizations Suggest (nominate) attorney for the estate Possible to disinherit adult children (or unequal shares)
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Things A Will Cannot Do
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•
•
Instruct effectively as to burial Cut off inheritance rights of surviving spouse Redirect distribution of Right-ofSurvivorship co-owned property Direct who is to receive life insurance policy proceeds if the policy does not pay them into the insured’s estate Alter the terms of an irrevocable living trust
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WILL Requirements in Missouri
Written (not oral or video/audio-taped) Maker (testator) must be at least 18 years old Signed by the testator Signed in the presence of two disinterested witnesses, who also sign the will
Witnesses should not receive anything under the will
Option: For the will to be “self-proving” as to the witnesses, they should sign the will before a notary public Only ONE signed copy of a will can exist
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FAQ’s about WILLS
1. 2. 3. 4.
5.
6. 7. 8. 9. 10. 11. 12.
13.
14. 15. 16. 17. 18. 19.
Can someone under the age of 18 make a valid WILL under Missouri laws? Can an heir in a WILL be under the age of 18? Can an heir in a WILL be incompetent? Must a WILL be recorded before the maker (testator) dies? What is meant by a “self-attesting” WILL? What is its advantage? How many witnesses must sign a WILL under Missouri law? Must WILL witnesses be allowed to read the WILL? Must the testator sign the WILL in the presence of the witnesses? Must the witnesses sign the WILL in the presence of the testator? Can a WILL be handwritten rather than typed? Can a WILL be videotaped or audio-taped? If I make a WILL in Missouri, will it be valid if I die in Louisiana? Can the testator change (or revoke, or substitute) her WILL? How? Why must there be only ONE signed (executed) copy made of a WILL? Where should you keep your WILL? What factors do you consider in deciding where to keep your WILL? Can you disinherit your children? Does it make a difference if they are minors (under 18 or incompetent)? Can you leave different amounts to your surviving children? Can you disinherit your spouse? Can you leave less than one half to your spouse? Less than one third to your spouse? Do I have to give my WILL to someone before I die?
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Attorney & Personal Representative Statutory Fee (Missouri)
1.
Only on "personal property"
5% $1 - $5,000 4% $5,001 - $25,000 3% $25,001 - $100,000 2 3/4% $100,001 - $400,000 2 1/2% $400,001 - $1,000,000 2% Over $1,000,000
2.
Why should heirs receive real property from probate and later sell it, rather than selling it during probate and receiving the money from probate?
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Intestate Succession (Missouri)
1.
Surviving spouse:
Entire estate if there are no surviving issue of the decedent $20,000 + 1/2 remainder if there are surviving issue all who are issue of surviving spouse 1/2 of estate is there are surviving issue if at least one is not issue of the surviving spouse
2.
Other states by statute will likely have a different formula
You go by the state statute where the decedent was last a “resident”
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Intestate Succession (Missouri)
The part not distributable to the surviving spouse (or the entire intestate property if there is no surviving spouse) shall be distributed: To the children, or their descendants, in equal parts If no children or their descendants, then to father, mother, brothers, and sisters and their descendants in equal parts If no children, mother, father, brothers, sisters or their descendants, then to the grandfathers, grandmothers, uncles, aunts and their descendants in equal parts If no surviving spouse or kin of decedent, all goes to kin of decedent's husband or wife
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Study Questions about Intestate Descent under Missouri Statutes
1.
If you die unmarried and without a WILL, how does Missouri distribute your property?
Assume your survivors are your parents, sisters, brothers, maternal grandparents, paternal grandparents, uncles on your mother’s side, and aunts on your father’s side
2.
If you die married and without a WILL, how does Missouri distribute your property?
Assume your survivors are two adult children, two minor children, your surviving spouse, your mother, three sisters, one brother, two grandmothers, one grandfather, three uncles, and six aunts
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Exempt Property
Includes (without regard to value) the family bible, other books, one automobile, all wearing apparel of family, all household musical instruments, all household and kitchen furniture, appliance, implements
1. 2.
3.
4. 5. 6. 7.
What about cash and money in bank accounts? How about the lawn tractor? Garden tools and tractor/tiller? How about my guns? How about my ATV (four-wheeler)? How about livestock? The family dogs and cats? How about jewelry? How about paintings?
Free and clear of decedent’s creditors (unsecured)
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Family Allowance (One-Year Support)
1.
2.
3.
Probate Court calculates amount for 1-year of support based upon previous standard of living In addition to intestate or will share Free and clear of decedent’s creditors (unsecured)
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Homestead Allowance
1.
Up to 50% of estate, but in no case greater than $15,000
Free and clear of decedent’s creditors (unsecured)
2.
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Surviving Spouse Election To Take Against the Will
1. 2.
3.
4.
5.
Forfeits any share under the will One-half the estate if there are no lineal descendants of the testator One-third the estate if there are lineal descendants of the testator Subject to the payment of claims against the estate In addition to exempt property and the family allowance
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