Missouri Wills vs. Trusts
Navigating Missouri estate planning doesn’t have to be a headache. Whether you’re looking at a will vs a trust, understanding the key differences can save your family significant time, money, and stress. This comprehensive guide breaks down Missouri’s unique laws to help you make the right choice for your legacy.
Table of Contents
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Missouri Will Requirements
A Missouri Last Will and Testament should include:
- Age and Capacity: Testator must be “of sound mind” and at least 18 years old (an individual under 18 can only make a valid will if married, in the armed services, or legally emancipated by court order)
- Sound Mind Definition: Must understand and remember the estate and general affairs, familial relationships, and the overall implications of executing the document
- Format: Must be in writing
- Signature: Must be signed by the testator (or by another person for the testator at the testator’s request)
- Witnesses: Must be signed by at least two witnesses (anyone generally capable of acting as a witness in Missouri can witness a will)
Interested Witnesses
A Missouri will witnessed by someone who stands to gain under the will is not invalid based solely upon the interested witness. 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
- A witness’s status as an executor or creditor of an estate does not make the witness an interested party under Missouri law
Self-Proved Wills
Missouri wills need not be notarized, but a will can become self-proved through execution of a notarized affidavit by the will’s testator and witnesses. Self-proving affidavits:
- Can be executed at the same time as the will itself or subsequent to execution
- Include the testator’s attestation that the document was voluntarily created as a will while the testator had capacity and was under no undue influence
- Include witnesses’ attestation that the testator signed the document willingly with the intent that it be a will, had legal capacity, and was under no undue influence
- Serve in place of witness testimony before the probate court
- 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. §474.307.
Personal Property Memorandum
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. The list or memorandum must:
- Be written in the testator’s handwriting or signed by the testator
- Be dated
- Identify the devised items and intended recipients with reasonable certainty
A list of personal property can be created before or after a will is executed and can be altered by the testator. A personal property list cannot be used to distribute:
- Cash
- Promissory notes
- Title instruments
- Securities
- Items used in trade or business
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Amendment, Revision, and Revocation of Missouri Wills
Revoking a Missouri Will
Under Missouri law, revocation of a written will must be accomplished through either:
- Execution of a subsequent written will
- Physical destruction of the will by the testator (or by someone in the testator’s presence acting at the testator’s direction)
Amending a Missouri Will
An existing will may be amended or supplemented by execution of a codicil satisfying all requirements for a written will.
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).
Automatic Revocation by Divorce
If a testator is divorced after executing a will, any provisions in favor of the former spouse are deemed to have been revoked. Property bequeathed to the former spouse is treated as if the former spouse predeceased the testator.
Marriage After Will Execution
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 intestate
- This doesn’t apply if the decedent made other arrangements to provide for the spouse outside the will or the omission otherwise appears intentional
- A surviving spouse may alternatively opt to receive the elective share if it has not been waived
Children Born After Will Execution
If a child is born to or adopted by a testator after execution of a Missouri will—and if the testator’s will does not provide for or appear to intentionally omit the child—the child inherits a share of the estate equal to what the child would have inherited had the testator died intestate.
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 spouse
- The decedent made other arrangements to provide for the child outside the will
Need help creating the right estate plan for your Missouri family?
Our estate planning specialists can help you navigate Missouri’s unique laws and create a personalized strategy.
Holographic and Oral Wills
Holographic Wills
Missouri law does not recognize holographic wills (i.e., a will in the decedent’s handwriting). 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.
Oral (Nuncupative) Wills
Missouri recognizes oral (or “nuncupative”) wills under specific, limited circumstances:
- The testator must make the statements while in imminent peril of death (including by sickness) from which the testator does not survive
- The statements must be heard by two disinterested witnesses
- The testator must declare that the oral statements are intended as the testator’s last will
- One of the two witnesses must reduce the oral will’s terms to writing within 30 days of the statements
- The oral will must be submitted for probate within six months of the testator’s death
- Only effective for dispositions of personal property valued up to $500
- 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., §456.1.101, et. seq.
Requirements for a Valid Missouri Trust
For a trust to be valid under Missouri law:
- The purpose of the trust must be lawful, not in conflict with state public policy, and capable of being achieved
- In general, the purposes of a trust and the trust itself must be to benefit the interests of the trust’s beneficiaries
- The settlor must have adequate capacity to create the trust and express an intent to create a trust (for revocable trusts, the standard for capacity is the same as for wills)
- A Missouri trust is invalid to the extent its creation was induced through fraud, duress, or undue influence
Trust Creation Methods
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 grantor’s declaration that property is owned as trustee
- Exercising a power of appointment in favor of a trustee
- A court order establishing the trust
Required Trust Elements
Missouri trusts must 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)
- A trustee with actual duties to perform (and a trust’s sole trustee cannot also be the trust’s sole beneficiary)
Trustee Responsibilities
Trustees who manage assets are governed by the “prudent investor rule” and must exercise reasonable care, skill, and caution in carrying out their duties.
Oral Trusts
Though most trusts are evidenced by a written instrument setting forth the trust’s terms, Missouri law recognizes oral trusts. However:
- The creation and terms of an oral trust must be established by clear and convincing evidence
- If a trust holds land or is effectively testamentary, its creation must be evidenced by a writing signed by the grantor or through the grantor’s will
Trust Termination
Missouri trusts terminate upon:
- Revocation or expiration under the trust’s own terms
- When there is no purpose of the trust remaining to be achieved
- When the trust’s purposes become unlawful, contrary to public policy, or impossible to achieve
A trust may also be modified or terminated by a court upon the petition of the settlor, trustee, and/or beneficiaries. When a trust terminates, the trust’s remaining assets are distributed by the trustee as directed by the trust’s terms or otherwise consistently with the trust’s purposes.
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Special Considerations
Estate Taxes
Missouri does not impose either estate or inheritance taxes. Large Missouri estates may still be liable for federal estate taxes.
Simplified Probate
Missouri law provides a streamlined probate process for “small estates” (defined as less than $40,000 in net value).
If an estate qualifies for simplified probate:
- A personal representative or heir can submit an affidavit requesting simplified probate after 30 days
- The affidavit must state whether the decedent left a will, itemize estate assets, and identify heirs and individuals or entities in possession of estate assets
- The petition must also include a statement that claims against estate property have been or will be paid
- 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
Non-Probate Transfers
Along with living trusts, Missouri law offers multiple other options for transfer of assets outside of probate:
Beneficiary Deeds and Vehicle Titles
Missouri is one of the few states that recognize TOD designations on both real estate deeds (commonly called “beneficiary deeds”) and vehicle titles.
- The TOD designation is added to the deed or title during life, and ownership automatically transfers to the named beneficiary upon the owner’s death
- The beneficiary does not acquire present rights over the asset until death actually occurs
- Upon the original owner’s 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
Spendthrift Trusts
Although the general rule is that creditors of a trust’s beneficiaries may attach a beneficiary’s interest in a trust, Missouri law recognizes “spendthrift provisions,” which prevent beneficiary creditors from attaching trust assets until actually distributed to the relevant beneficiary.
Spendthrift provisions do not protect against attachment to satisfy:
- Domestic support obligations
- Governmental claims
- Claims of professionals who have assisted beneficiaries in protecting their interest in the trust
Creditors of a revocable trust’s settlor can attach trust assets as long as the settlor remains living. In the case of irrevocable trusts, settlors’ creditors can attach up to the maximum amount of trust assets that could be distributed for the settlor’s benefit.
Or, if the irrevocable trust includes a spendthrift provision, a settlor’s 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
- 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
Missouri law allows married couples to jointly create a “qualified spousal trust” to hold assets of the two spouses. Qualified spousal trusts are:
- Revocable
- Both spouses are settlors and beneficiaries of the trust
- For purposes of creditors’ claims, property held within a qualified spousal trust is treated as if it were held by the spouses as tenants by the entireties
Need help creating the right estate plan for your Missouri family?
Our estate planning specialists can help you navigate Missouri’s unique laws and create a personalized strategy.
Wills vs. Trusts: Comparison
| Feature | Wills | Trusts |
|---|---|---|
| When It Takes Effect | After death | Can be immediate (living trust) or after death (testamentary trust) |
| Probate Process | Requires probate | Assets in trust avoid probate |
| Privacy | Public record | Generally private |
| Challenges | Can be challenged in probate court | More difficult to challenge |
| Cost to Create | Generally less expensive | Usually more expensive |
| Ongoing Administration | None until death | May require ongoing management |
| Protection During Incapacity | None (requires separate power of attorney) | Can provide management if grantor becomes incapacitated |
| Alternatives in Missouri | Beneficiary deeds for real estate and vehicles | Qualified Spousal Trust for married couples |
When It Takes Effect
Wills: After death
Trusts: Can be immediate (living trust) or after death (testamentary trust)
Probate Process
Wills: Requires probate
Trusts: Assets in trust avoid probate
Privacy
Wills: Public record
Trusts: Generally private
Challenges
Wills: Can be challenged in probate court
Trusts: More difficult to challenge
Cost to Create
Wills: Generally less expensive
Trusts: Usually more expensive
Ongoing Administration
Wills: None until death
Trusts: May require ongoing management
Protection During Incapacity
Wills: None (requires separate power of attorney)
Trusts: Can provide management if grantor becomes incapacitated
Alternatives in Missouri
Wills: Beneficiary deeds for real estate and vehicles
Trusts: Qualified Spousal Trust for married couples
Conclusion
Creating a will or trust does not have to be difficult or intimidating. However, certain circumstances—like second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)—can add a layer of complexity and result in unforeseen long-term consequences. Whenever any out-of-the-ordinary issues are present, it’s a good idea to consult with an experienced attorney familiar with and licensed under the laws of Missouri.
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