Do not create your own Last Will & Testament (or perform surgery on yourself)
Performing surgery is serious business and most would never consider doing it on their own body. Creating a valid and enforceable Last Will and Testament, (hereinafter, “will”), is also serious business and should only be done by experienced attorneys. The creation of a valid will is crucial to ensure your wishes are honored after your passing. While the temptation to draft your own will may arise, especially with the availability of online templates and internet “experts,” doing so without proper legal guidance can lead to significant issues, including will contests and the invalidation of your will. Missouri law has specific requirements for the execution and authentication of wills, and failure to adhere to these can result in expensive and unintended consequences.
If you die without a will, your estate goes through a court administration process commonly referred to as probate pursuant to Missouri’s intestate successor laws. This unfortunate result is where your last wishes may or may not be observed. Because your expressed wishes cannot be found in a valid will, any assets “locked” in your name will likely be divided among your closest relatives, or their money equivalent after sale will be distributed to the same. Friends, partners, churches, charities, or others who are not your closest relatives will be excluded from distribution. A probate court will also decide who serves as Personal Representative of your estate (f/k/a administrator or executor). Your preferred candidate may or may not be selected unless you have a will.
A. Missouri’s Legal Requirements for Wills
Under Missouri Revised Statutes § 474.320, a valid will must meet certain criteria. The statute reads as follows: “Every will shall be in writing, signed by the testator, or by some person, by his direction, in his presence; and shall be attested by two or more competent witnesses subscribing their names to the will in the presence of the testator.”
Failure to comply with these requirements can render a will invalid. For example, if a will lacks the necessary witness signatures, it may be deemed improperly executed and subject to challenge.
B. The Importance of Self-Proving Wills
To streamline the probate process and reduce the likelihood of challenges, Missouri allows for wills to be made self-proved. According to Missouri Revised Statutes § 474.337, a will can be self-proved by the acknowledgment of the testator and affidavits of the witnesses before an authorized officer, such as a notary public. This procedure adds a layer of authenticity, making it more difficult for others to contest the will’s validity.
C. Common Grounds for Will Contests
In Missouri, wills can be contested on several grounds, including: (a) Lack of Testamentary Capacity: Arguing that the testator did not have the mental capacity to understand the nature and extent of their estate or the implications of their decisions at the time the will was executed; or (b) Undue Influence: Claiming that the testator was coerced or manipulated into making certain decisions in their will; or (c) Improper Execution: Asserting that the will was not executed in accordance with Missouri law, such as lacking the required number of witness signatures; or (d) Fraud or Forgery: Alleging that the will or signatures were falsified.
D. Risks of Do-It-Yourself Wills
While drafting your own will might seem cost-effective, it carries significant risks such as (a) Improper Execution: Without legal guidance, you might overlook essential formalities, leading to improper execution; and (b) Ambiguities and Errors: Legal language can be complex. Misunderstandings or miswording can result in ambiguities, making your intentions unclear and opening the door to disputes.; and (c) Failure to Address Specific Circumstances: Generic templates may not account for unique aspects of your estate or personal wishes, leading to incomplete or conflicting provisions.
Other factors to consider in do-it-yourself wills include: (a) Did the testator waive the bond? If not, the estate will be responsible for the cost of posting bond. The amount of the bond is based on the size of the estate, and the bond premium is an additional administration expense; and (b) Did the testator name a beneficiary for his residuary estate (the remaining estate after specific bequests are made)? If not, the court may cause an heirship proceeding involving the appointment of an attorney ad litem and two disinterested witnesses. The ad litem fees are an additional expense to the estate, and the witnesses must testify at the probate hearing; and (c) Did the testator name a minor beneficiary as beneficiary? If so, the judge will likely require a bond to protect the minor’s financial interest, as well as a guardianship of the minor’s estate; and (d) Did the testator give the Personal Representative a power to sell property of the estate? If not, that person must ask the court for permission to sell, requiring additional legal fees and expenses.
E. The Value of Professional Legal Assistance
Given the complexities and potential pitfalls in drafting a will, it is highly advisable to consult with an experienced estate planning attorney. A qualified attorney can: (a) Ensure Compliance: Guarantee that your will meets all Missouri legal requirements, minimizing the risk of successful challenges; and (b) Provide Clarity: Draft clear and precise language that accurately reflects your intentions, reducing the likelihood of misinterpretation; and (c) Offer Comprehensive Planning: Address all aspects of your estate, including tax implications, guardianship for minors, and distribution strategies, ensuring a holistic approach to your estate planning.
In conclusion, while it may be tempting to draft your own will, the potential dangers and complexities involved make it a risky endeavor. To protect your legacy and ensure your wishes are honored, engaging an experienced estate planning attorney is a prudent and wise decision.
Todd Miller is a monthly contributor and regularly writes and speaks on various legal topics including bankruptcy, estate planning, probate, and elder law. He formed the Law Office of Todd Miller, LLC, 1305 Southwest Blvd., Ste. A, Jefferson City, Missouri in 2006. He has been awarded the Substantial Contributor Attorney Award by the Missouri Bar and ranked as one of the “Top Attorneys in Missouri” by The Legal Network. Mr. Miller earned his juris doctorate degree from the University of Missouri School of Law in 1999 and graduated with honors from Lincoln University in 1991. You may find him at www.toddmillerlaw.com (573) 634-2838 or on Facebook, Instagram, and Twitter.