Fall 2009

Estate planning for farm families

Part II: Starting your Will

By Vern Pierce, PhD, JD, Assoc. Extension Professor of Ag Law, Business, & Economics

Taking the steps to develop a Will that will be honored after your death can start with a simple outline of how and when you want your property distributed and whom you wish to care for any minor children. We will go through more detail of the choices you can make in these areas in future articles.

Sample Wills are available at office supply stores, on line, and even at legal reference websites like http://legalzoom.com. Be careful! these "samples" cannot provide any supporting legal advice and usually just have you fill in blanks in the middle of the legal text they provide. The problem comes when you don’t have a full understanding of the implications the parts they are providing for you-that’s why they are so cheap. You are just getting a sample template that works for the average person-of course there is no average person. So the best way to make your Will is too outline what you want, understand some of the basics and then take that to a lawyer.

There is a difference between making a Will and making a Will that will be enforced. To make a valid Will, you must be of sound mind and body. You have probably heard this many times, each time with a different definition. The fact is that in Missouri there are two simple tests the court will look at to determine if you were of sound mind and body when you wrote your Will. A person is considered to be of sound mind if, at the time she executed her Will, she knew:

1. the nature and extent of her property interests (what she owns); and
2. if she knows the "natural objects of their bounty"- her spouse, children, grandchildren, etc.

One common misconception is that alcoholism means a person is not of sound mind and body. This is not necessarily the case. If she meets the standards set out in the two rules listed above she will be considered to have been of sound mind when she executed the Will.

Your Will must be written, preferably typed, not verbal. Telling someone what your wishes are will generally be ignored by the courts after you die. Your Will must be signed by you in the presence of two disinterested witnesses (people who are not receiving anything in the Will). They must sign the Will signifying they have witnessed your signature and can later, give their opinion of whether you met the "sound mind and body" test mentioned above.

You should also consider whom you wish to be the executor of your estate-the person you want to manage the distribution of your assets and carry out the final wishes that you set out in your Will. The executed copy (signed by the testator in the presence of the witnesses followed by their signatures) of the Will should be stored in a secure place.

You do not have to send the Will to any government agency or even an attorney to be properly executed, although it is a good idea to have the attorney that helped you write the final version keep it at her office or in your safe or safe deposit box.

Do you have other questions relating to family farm estate planning? Contact Vern Pierce at piercev@missouri.edu or 573 882-8229.

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