MISSOURI WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
Wills:ย Missouri Probate Code, Chapter 474.ย R.S. Mo. ยง474.310, et. seq.
Trusts:ย Missouri Uniform Trust Code, R.S. Mo., ยงยง456.1-101 toย 456.11-1106.
Missouri Will Requirements.
To create a valid will under Missouri law, a testator must be โof sound mindโ and at least 18 years old.ย An individual under 18 can only make a valid will if he or she is married, in the armed services, or has been emancipated through an order entered by a judge.ย In general, a testator is โof sound mindโ if he or she can understand and remember his/her estate and general affairs, familial relationships, and the overall implications of executing the document.ย ย
A Missouri will must be in writing and must be signed by the testator (or by another person for the testator at the testatorโs request).ย A valid Missouri will must also bear the signatures of at least two witnesses.ย Anyone generally capable of acting as a witness in Missouri can witness a will.ย ย
A Missouri will witnessed by someone who stands to gain under the will is not invalid based solely upon the interested witness.ย However, a devise to an interested witness is deemed void to the extent, in the aggregate, total devises to the interested witness exceed the share of the estate he or she would have received had the testator died intestate.ย A witnessโs status as an executor or creditor of an estate does not make the witness an interested party under Missouri law.
Missouri wills need not be notarized, but a will can become self-proved through execution of a notarized affidavit by the willโs testator and witnesses.ย Self-proving affidavits can be executed at the same time as the will itself or subsequent to execution.ย Within the self-proved affidavit, the testator attests that the document was voluntarily created as a will while the testator had capacity to create the will and was under no undue influence.ย Witnesses attest that the testator signed the document willingly with the intent that it be a will and that the testator had legal capacity to create the will and was under no undue influence.ย ย
A self-proving affidavit serves in place of witness testimony before the probate court and must attest to the facts necessary to authenticate the will in probate. The Missouri legislature provides a sample form for a self-proved affidavit, at R.S. Mo. ยง474.307.ย ย
Missouri law permits testators to incorporate by reference written lists setting forth dispositions of specific items of tangible personal property not otherwise addressed in a will.ย The list or memorandum must be written in the testatorโs handwriting or signed by the testator, dated, and must identify the devised items and intended recipients with reasonable certainty.ย A list of personal property can be created before or after a will is executed and can be altered by the testator.ย A personal property list cannot be used to distribute cash, promissory notes, title instruments, securities, or items used in trade or business.
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Amendment, Revision, and Revocation of Missouri Wills.
Under Missouri law, revocation of a written will must be accomplished through either execution of a subsequent written will or through physical destruction of the will by the testator (or by someone in the testatorโs presence acting at the testatorโs direction).ย An existing will may be amended or supplemented by execution of a codicil satisfying all requirements for a written will.ย If a subsequently executed will does not expressly revoke a prior will, the later will is deemed to supplement the earlier will, except to the extent of any inconsistencies (in which case the later will controls).ย ย
If a testator is divorced after executing a will, any provisions in favor of the former spouse are deemed to have been revoked.ย Property bequeathed to the former spouse is treated as if the former spouse predeceased the testator.
If a testator marries after execution of a will and the will does not contemplate the marriage, the surviving spouse inherits the same share of the estate he or she would have inherited had the testator died intestateโunless the decedent made other arrangements to provide for the spouse outside the will or the omission otherwise appears intentional.ย A surviving spouse may alternatively opt to receive the elective share if it has not been waived.
If a child is born to or adopted by a testator after execution of a Missouri willโand if the testatorโs will does not provide for or appear to intentionally omit the childโthe child inherits a share of the estate equal to what the child would have inherited had the testator died intestate.ย However, an afterborn child is not entitled to the intestate share if the testator had at least one other child when creating the will and left substantially all of the estate to a surviving spouseโor if the decedent made other arrangements to provide for the child outside the will.
Holographic and Oral Wills.
Missouri law does not recognize holographic wills (i.e., a will in the decedentโs handwriting).ย A will written out by hand and signed by the testator can be valid, but only if it is also witnessed by two witnesses and otherwise satisfies the formalities for an attested will.ย
Missouri recognizes oral (or โnuncupativeโ) wills under specific, limited circumstances.ย The testator must make the statements while in imminent peril of death (including by sickness) from which the testator does not survive.ย The statements constituting an oral will must be heard by two disinterested witnesses, and the testator must declare that the oral statements are intended as the testatorโs last will.ย One of the two witnesses must reduce the oral willโs terms to writing within 30 days of the statements, and the oral will must be submitted for probate within six months of the testatorโs death.
Missouri nuncupative wills are only effective for dispositions of personal propertyโand only property valued up to $500. ย After a nuncupative will has been made, it can be revoked through another nuncupative will.
Missouri Trust Requirements.
Missouri trusts are primarily governed by the Missouri Uniform Trust Code, enacted by the legislature at R.S. Mo., ยง456.1.101, et. seq.ย The purpose of a Missouri trust must be lawful, not in conflict with state public policy, and capable of being achieved.ย In general, the purposes of a trust and the trust itself must be to benefit the interests of the trustโs beneficiaries.
Missouri trusts can be created through transfer of property by a grantor to a trustee (either during life or through a will or other testamentary instrument), a grantorโs declaration that property is owned as trustee, by exercising a power of appointment in favor of a trustee, or through a court order establishing the trust.ย ย
For a valid trust to be created under Missouri law, the settlor must have adequate capacity to create the trust and express an intent to create a trust.ย For revocable trusts, the standard for capacity is the same as for wills.ย A Missouri trust is invalid to the extent its creation was induced through fraud, duress, or undue influence.
Missouri trusts must also have a definite beneficiary (subject to exceptions such as for charitable trusts, trusts for the care of animals, and certain trusts created for noncharitable purposes).ย Additionally, the trustee of a Missouri trust must have actual duties to perform, and a trustโs sole trustee cannot also be the trustโs sole beneficiary.ย Trustees who manage assets are governed by the โprudent investor ruleโ and must exercise reasonable care, skill, and caution in carrying out their duties.ย ย
Though most trusts are evidenced by a written instrument setting forth the trustโs terms, Missouri law recognizes oral trusts.ย However, the creation and terms of an oral trust must be established by clear and convincing evidence.ย If a trust holds land or is effectively testamentary, its creation must be evidenced by a writing signed by the grantor or through the grantorโs will.
Missouri trusts terminate upon revocation or expiration under the trustโs own terms, when there is no purpose of the trust remaining to be achieved, or when the trustโs purposes become unlawful, contrary to public policy, or impossible to achieve.ย A trust may also be modified or terminated by a court upon the petition of the settlor, trustee, and/or beneficiaries.ย When a trust terminates, the trustโs remaining assets are distributed by the trustee as directed by the trustโs terms or otherwise consistently with the trustโs purposes.ย ย
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Estate Taxes: Missouri does not impose either estate or inheritance taxes.ย Large Missouri estates may still be liable for federal estate taxes.
Simplified Probate:ย Missouri law provides a streamlined probate process for โsmall estatesโ (defined as less than $40,000 in net value).ย If an estate qualifies, a personal representative or heir can submit an affidavit requesting simplified probate after 30 days.ย The affidavit states whether the decedent left a will, itemizes estate assets, and identifies heirs and individuals or entities in possession of estate assets.ย The petition must also include a statement that claims against estate property have been or will be paid.ย ย
If approved, the individual submitting the affidavit is authorized to collect estate property, pay creditor claims, and distribute estate assets to beneficiaries. He or she must obtain a bond and see that certain estate claims are paid.ย ย
Non-Probate Transfers:ย Along with living trusts, Missouri law offers multiple other options for transfer of assets outside of probate.ย POD (payable-on-death) and TOD (transfer-on-death) designations, which provide for automatic transfer of an asset to a beneficiary upon an ownerโs death, can be used in Missouri for a variety of assets.ย For instance, POD designations can be added to financial accounts and CDs, and TOD designations can be used with assets like registered securities and brokerage accounts.ย ย
Similarly, some assetsโlike retirement accounts and life insuranceโallow owners to name a beneficiary who automatically takes ownership of the asset upon the original ownerโs death.
Assets co-owned as joint tenants with a right of survivorship automatically transfer to a surviving owner upon the other ownerโs death.ย Missouri also recognizes tenancy by the entireties, another joint ownership form with a right of survivorship.ย Tenancy by the entireties can only be used for co-ownership of assets by two spouses.ย ย
Transfer-on-Death (TOD) Deeds and Vehicle Titles:ย Missouri is one of the few states that recognize TOD designations on both real estate deeds (commonly called โbeneficiary deedsโ) and vehicle titles.ย In either case, the TOD designation is added to the deed or title during life, and ownership automatically transfers to the named beneficiary upon the ownerโs death.ย The beneficiary, though, does not acquire present rights over the asset until death actually occurs. Upon the original ownerโs death, the beneficiary provides the death certificate to the land records office or DMV to have title to the real estate or vehicle officially transferred.
Spousal Shares: Missouri law protects surviving spouses from disinheritance by guarantying a surviving spouse an elective share in a decedent spouseโs estate.ย The amount of the elective share is generally fifty percent if the decedent leaves no children or grandchildren or one-third if the decedent has surviving issue.ย The spousal elective share includes all of the decedentโs probate assets (excluding funeral and administrative expenses, exempt assets and family allowances, and valid creditor claims), plus any assets transferred to another person or to a trust before the decedentโs death (but only if the transfer was made to avoid the spouseโs inheritance rights).ย ย
A surviving spouse can forego the elective share and opt instead to inherit under the provisions of a decedent spouseโs will.ย The elective share can also be waived through execution of a valid prenuptial or postnuptial agreement.ย And the share is forfeit if the surviving spouse was living with another person in an adulterous relationship or had effectively abandoned the decedent spouse.
Along with the elective share, Missouri law also gives spouses the right to receive exempt property from the estate and a one-year support allowance awarded by a probate court.
In intestate estates, the surviving spouse of a Missouri resident receives the entire estate of a decedent spouse who leaves no surviving issue (i.e., no children or grandchildren); $20,000 plus one-half the remainder if all of the decedentโs surviving issue are also the issue of the surviving spouse; or one-half of the estate if the decedent leaves at least one child or grandchild who is not the issue of the surviving spouse.
Missouri Spendthrift Trusts:ย Although the general rule is that creditors of a trustโs beneficiaries may attach a beneficiaryโs interest in a trust, Missouri law recognizes โspendthrift provisions,โ which prevent beneficiary creditors from attaching trust assets until actually distributed to the relevant beneficiary.ย Spendthrift provisions do not protect against attachment to satisfy domestic support obligations, governmental claims, and claims of professionals who have assisted beneficiaries in protecting their interest in the trust.ย ย
Creditors of a revocable trustโs settlor can attach trust assets as long as the settlor remains living.ย In the case of irrevocable trusts, settlorsโ creditors can attach up to the maximum amount of trust assets that could be distributed for the settlorโs benefit.ย Or, if the irrevocable trust includes a spendthrift provision, a settlorโs creditor can attach trust assets only if, at the time the trust became irrevocable, the settlor was the sole beneficiary of principal or income, the settlor retained the power to amend the trust, or the settlor was among a class of beneficiaries with the right to receive distributions determined exclusively by the written terms of the trust instrument.
Qualified Spousal Trust:ย Missouri law allows married couples to jointly create a โqualified spousal trustโ to hold assets of the two spouses.ย Qualified spousal trusts are revocable, and both spouses are settlors and beneficiaries of the trust.ย For purposes of creditorsโ claims, property held within a qualified spousal trust is treated as if it were held by the spouses as tenants by the entireties.
Creating a will or trust does not have to be difficult or intimidating.ย However, certain circumstancesโlike second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)โcan add a layer of complexity and result in unforeseen long-term consequences.ย Whenever any out-of-the-ordinary issues are present, itโs a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
