Preparing a Will

Often referred to formally as one’s “last will and testament,” a will needs to be a part of every individual’s financial plan for the future. Everyone from average-income folks to very wealthy individuals benefit from this sometimes simple, yet critical document.

What does it do?: A will designates who should receive one’s property upon their death. Wills designate the recipients of property (called “legatees” or “devisees”) ranging from grandma’s family pearls, to a bank account to the family residence. While a will may spell out a detailed list of “who gets what,” it also gives categorical gifts and should have a “residual clause” which provides for all unmentioned items to pass to a named recipient(s). In addition to creating the scheme and details for posthumous gifts, a will often includes the following:

(a) nomination of guardianship for minor children
(b) establishment of a “testamentary trust” to be formed upon death
(c) naming of a personal representative of the estate
(d) granting of gifts to specific charities or other organizations

What happens if I don’t get one?: If an individual dies without having ever prepared and signed a will, the distribution of their property will be left to the laws of the state in which they reside or where the property is located (see Mo Rev. Stat. Ch. 474). Referred to as “intestate succession” this process may distribute property in a manner unsatisfactory and confusing to both the decedent and potential heirs and devisees. Missouri laws are not tailored to individual wishes, needs or circumstances. For example, one-half of a decedent’s property may pass to their children (regardless of the quality or even knowledge of these relationships), while their spouse is still living and remains dependant on this money and property (see Ch. 474.010). Property can potentially be given to the state of Missouri, in the event no appropriate heirs are available (see Ch. 470). While there are no laws requiring the preparation of a will, there is a little question to its benefit.

Attorney or form?: While a will can be prepared by an individual with or without professional assistance, there are some concerns with so-called form wills. While rough, fill-in-the-blanks forms are widely available, they pose potential risks with respect to enforcement as well as clarity and accuracy. An experienced attorney practicing in estate planning matters should be able to prepare a will uniquely fitted to your needs, desires and budget. Proper will preparation requires both expertise and a solid understanding of the individual circumstances and desires of a particular individual. An appropriate attorney should (i) specialize in estate planning, (ii) be willing to take the time to determine your financial and family circumstances, and (iii) offer a summary of the available estate/life planning documents.