There is an episode of “I Love Lucy” that always comes to mind when we talk about different kinds of wills. The Ricardos and the Mertzes hire a tutor to help them class up their English. The tutor starts with one basic rule. There are two words you must never use, he explains. One, he says, is “swell,” and the other is “lousy.” The punch line, of course, is one her new pupils responding, “Tell us the lousy one first.”
In our Feb. 12 post, we talked about the importance of having a will. What people may not realize is that there are really two types of wills. There are valid wills, and there are invalid wills. What’s more, validity is determined by state law. Set one foot outside of Missouri and the process of executing a will may be very different. Use a generic form off the Internet, and some important elements could be missed.
Validity is more about mechanics than theory. In Missouri, the testator must be “of sound mind” and either 18 years old or an emancipated minor. The will must be in writing and must be signed by the testator or the testator’s designee in the testator’s presence. The will must also be signed by two competent witnesses in the presence of the testator.
If that sounds fairly straightforward, someone who is writing his own will or using an online form may not want to get too comfortable yet. A few things could come up: For example, “competent” is a fairly broad term, so the courts have worked on a definition over time. That, too, may differ from state to state. And each state may treat a witness who has an interest in the estate a little differently. In Missouri the will is still valid if signed by someone who stands to inherit, but there are a couple of additional hoops to jump through.
And don’t forget that a will may have to be self-proved to be valid. In Missouri, it does, but there are nuances to the process that may be easy to overlook.
Even if the mechanics are right, there may be problems with the will. It is possible for a will to be both valid and vague. So we have, in effect, a third type of will: A will that meets the statutory requirements but that is still confusing and the cause of family strife.
We’ll get into some of the possible flaws in our next post.
Source: Vernon’s Annotated Missouri Statutes, Title XXXI: Trusts and Estates of Decedents and Persons Under Disability, Chapter 474: Probate Code–Intestate Succession and Wills, via Westlaw, accessed Feb. 28, 2014