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Will Requirements

Clients often request information regarding a “simple will.” They see commercials for places like legalzoom.com and conclude that such a rudimentary instrument is all that is needed. However, while a “simple will” is sufficient for some clients, more often than not clients want more detailed distributions in their estate and do not simply wish to appoint a personal representative to follow basic estate administration procedures.

Just as there are misconceptions as to what sorts of wills are sufficient for an estate, there are also misconceptions about the protocol required to properly create a will. I personally have run into people that explained they do not need an attorney because they can simply write their own will and put it amongst their possessions; and then, once they pass away, the probate court will honor the will’s directives. Such will’s are called “holographic wills” — and are impermissible in Missouri. A holographic will is a will entirely in the handwriting of the testator, who signs and dates the will; it is not witnessed or executed in conformity with the wills statute.

(Side-bar: there is a back-door way that holographic wills can be effective in Missouri: if it can be proven that such a will was drawn up in a State that permits holographic wills, and then that will was subsequently presented in Missouri, it is likely effective.)

Noncupative (oral) wills are also not honored in Missouri, subject to a very narrow exception. A valid noncupative will may only be made by a person in (1) imminent peril of death, (2) the person dies specifically from that impending peril, (3) he/she declares his/her wishes in front of two disinterested witnesses, (4) one of the witnesses reduces those wishes to writing within thirty days, (5) the writing is submitted for probate within 6 months after the person’s death, and (6) the noncupative will does not dispose of personal property with a value not in excess of $500. Moral of the story: don’t rely on oral wills in Missouri, as they rarely have effect and cannot be used to change an existing written will.

Don’t fall prey to some of the misconceptions about wills, or automatically assume that the will laws of one state are identical to those of Missouri. Instead, consult legal counsel that can adequately guide you through the mechanics of creating a will.

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