What to Include in a Will

When thinking of estate planning, most people’s minds probably go straight to wills. And while wills are not necessarily the best way to accomplish all estate planning goals, they are powerful instruments that can serve their creators well when properly drafted and executed. If you’d like to discuss whether you need a will and what to include in it, a Springfield elder law attorney can help.

First, Understand the Formalities

Wills are formal legal documents, so it’s essential to comply with statutory requirements when executing them. In Missouri, wills must be:

In writing
Signed by the testator
In the presence of two or more competent witnesses who also sign their names to the will in the presence of the testator

See RSMo § 474.320.

If the testator cannot physically sign his name, he may direct another party to do so, but that party cannot be one of the witnesses. While any competent person can serve as a witness, the witnesses should be “disinterested” — i.e., not beneficiaries of the will. An interested witness does not invalidate the will, but it does void any gifts to that witness unless there are at least two other disinterested witnesses. The best way to ensure that you comply with the formalities of will execution is to work with a Springfield elder law attorney.

Appointment of an Executor

An executor is the person who will manage your estate by opening probate, paying debts and liabilities, and distributing your assets to your beneficiaries according to the terms of your will. As such, the appointment of an executor is one of the most important considerations for making a will. While executors do not necessarily need to have legal or financial training, the person you choose should be someone you trust and who is honest, diligent, and organized.

Debts and Liabilities

Almost everyone has some form of debt when they pass away, such as an outstanding mortgage, tax liabilities, or medical bills. Those debts must be paid before any of your assets can be distributed, so you should at least identify them and allocate funds for their payment. RSMo § 473.397 governs the order in which debts are to be paid.

Distribution of Assets

The distribution of assets is where you will specify who will inherit your estate and what they will receive. You can think of this portion as the “heart” of the will. There are several ways to distribute assets using a will, but we will focus on two primary methods below. For more information about other ways to distribute your assets using a will, speak to a Springfield elder law attorney.

Specific Bequests

Specific bequests are just what they sound like — gifts of identifiable property (real estate, personal property, or both) to named individuals or groups. For example, a simple specific bequest could read “I leave my house to my son Dave and my jewelry to my female grandchildren.” It’s also common for testators to give specific bequests to charities. While naming specific beneficiaries to receive particular items can reduce the risk of conflict among beneficiaries, be sure to describe the items or assets as clearly as possible to avoid potential confusion.

Residuary Clause

A residuary clause is a “catch-all” provision that disposes of the rest of your estate after debts and specific bequests are settled. It can help manage assets you may have forgotten about or acquired after executing your will. You can choose to leave the residue to a specific person or a group of people. If you choose the latter, be sure to specify how much of the residue is allocated to each beneficiary. (e.g., “my children in equal shares”).

Guardianship of Minor Children

If you have minor children, a will is the strongest and safest method for naming a guardian for them in the event that you and the children’s other parent pass away at the same time. Missouri courts give significant weight to a parent’s nomination of a guardian in a will, and generally, they will honor it unless that person refuses to serve or is found unfit to do so. Of course, you should always consult with the proposed guardian ahead of time to confirm that they are willing to serve in that capacity.

What Not to Put in a Will

Not all assets need to pass through your will — and in some cases can’t. Do not include assets that pass outside of probate in your will, such as insurance policies, retirement accounts, and pay-on-death or transfer-on-death accounts. You should also avoid including any property or assets in trusts, as those assets pass through the trust.

What if You Want to Make Changes Later?

Wills are not set in stone. You can make changes to them at any time as the circumstances dictate, such as upon marriage, the birth of a child, or the death of a beneficiary. An amendment to a will is known as a codicil, and the legal requirements for codicils are the same as those for wills (i.e., in writing, signed by the testator, and in the presence of two competent witnesses). You can also make changes to your will by executing a new will, which revokes your prior will. This generally is a better option if you’d like to make extensive changes, or it’s been many years since you executed your original will.

Draft a Will That Works for You With Help From Our Springfield Elder Law Attorneys

Wills are often the centerpieces of estate plans. You should therefore give your will the consideration it deserves if you plan to use one. For more information, please contact the Springfield elder law attorneys at the LifeGen Law Group by calling 417-823-9898 or using our online contact form.