General DefinitionAny part of the decedent's estate not validly disposed of by will. Sec. 474.030.
Order of DistributionThe intestate share of a decedent's surviving spouse, subject to the payment of claims, is:
- The entire intestate estate if there is no surviving issue of the decedent;
- The first twenty thousand dollars in value of the intestate estate, plus one-half of the balance of the intestate estate, if there are surviving issue, all of whom are also issue of the surviving spouse;
- One-half of the intestate estate if there is surviving issue, one or more of who are not issue of the surviving spouse. Sec. 474.010(1).
The part not distributable to the surviving spouse, or the entire intestate property, if there is no surviving spouse, will descend and be distributed as follows:
- To the decedent's children, or their descendants, in equal parts;
- If there are no children, or their descendants, then to the decedent's father, mother, brothers and sisters or their descendants in equal parts;
- If there are no children, or their descendants, father, mother, brother or sister, or their descendants, then to the grandfathers, grandmothers, uncles and aunts or their descendants in equal parts. Sec. 474.010(2).
- If there are no children or their descendants, father, mother, brother, sister, or their descendants, grandfather, grandmother, uncles, aunts, nor their descendants, then to the great-grandfathers, great-grandmothers, or their descendants, in equal parts; and so on, in other cases without end, passing to the nearest lineal ancestors and their children, or their descendants, in equal parts; provided, however, that collateral relatives, that is, relatives who are neither ancestors nor descendants of the decedent, may not inherit unless they are related to the decedent at least as closely as the ninth degree, the degree of kinship being computed according to the rules of the civil law; that is, by counting upward from the decedent to the nearest common ancestor, and then downward to the relative, the degree of kinship being the sum of these two counts, so that brothers are related in the second degree. Sec. 474.010(3).
- If there is no surviving spouse or kindred of the decedent entitled to inherit, the whole shall go to the kindred of the predeceased spouse who, at the time of the spouse's death, was married to the decedent, in like course as if such predeceased spouse had survived the decedent and then died entitled to the property, and if there is more than one such predeceased spouse, then to go in equal shares to the kindred of each predeceased spouse. Sec. 474.010(4).
If no person is entitled to inherit under Missouri law the property shall escheat to the State. Sec. 474.010(4).
Common Law or Community PropertyMissouri is a common law, elective share state.
CapacityAny person of sound mind, eighteen years of age or older or any minor emancipated by adjudication, marriage or entry into active military duty into the military may by last will devise his or her real or personal property. Sec. 474.310.
DraftingEvery 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. Sec. 474.320.
An oral will may be made only by a person in imminent peril of death, whether from illness or otherwise, and shall be valid only if the testator died as a result of the impending peril, and must be:
- Declared to be his will by the testator before two disinterested witnesses;
- Reduced to writing by or under the direction of one of the witnesses within thirty days after such declaration; and
- Submitted for probate within six months after the death of the testator. Sec. 474.340(1).
An oral will may dispose of personal property only and to an aggregate value not exceeding five hundred dollars. An oral will neither revokes nor changes an existing written will. Sec. 474.340(2)-(3).
Any person competent to be a witness generally in this state may act as attesting witness to a will. No will is invalidated because it is attested to by an interested witness; but any interested witness must, unless the will is also attested by two disinterested witnesses, forfeit so much of the provisions made for him as in the aggregate exceeds in value, as of the date of the testator's death, what he would have received had the testator died intestate. Sec. 474.330.
A written will may at the time of its execution, or at any subsequent date, be made self-proved, by the acknowledgment by the testator and the witnesses, each made before an officer authorized to administer oaths under the laws of this state, and evidenced by the officer's certificate, under official seal, attached or annexed to the will. Sec. 474.337.
BeneficiariesA beneficiary includes, in the case of a decedent's estate, an heir, legatee and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary.
ModificationsNo will in writing, or nor any part thereof, will be revoked, except by a subsequent will in writing, or by burning, canceling, tearing or obliterating the same, by the testator, or in his presence, and by his consent and direction. Sec. 474.400.
Naming of Personal RepresentativeThe probate division of the circuit court, or the clerk, shall grant letters testamentary and of administration. Sec. 473.023.
Letters testamentary will be granted to the personal representative or personal representatives designated in the will. If part of the persons designated in the will are found by the court to be incompetent, unsuitable or improper or are disqualified or fail to apply for letters, letters will be granted to the others designated, and if all personal representatives designated are found by the court to be incompetent, unsuitable or improper or are disqualified or fail to apply, letters will be granted to some other qualified person.
Letters of administration shall be granted to the following persons if otherwise qualified:
- To the husband or wife;
- To one or more of those who are entitled to distribution of the estate, who the court shall believe will best manage and preserve the estate. A conservator of a distributee is not entitled to preference;
- If the court believes no one of the persons entitled to administer is a competent and suitable person, or if any such person fails to apply for letters when directed by the court, some other person may be appointed;
- A person entitled to letters of administration under subdivision (1) or (2) or who would be entitled but for Sec. 473.117 may, if he has attained the age of eighteen years and has sufficient mental capacity for the purpose, nominate a qualified person to act as personal representative. Any such person may renounce his right to nominate or to be appointed by an appropriate writing filed with the court. When two or more persons share a priority, those of them who do not renounce must concur in nominating another to act for them or in applying for appointment.
- A natural person or corporate fiduciary, otherwise qualified, who is a nonresident of this state may be appointed as a personal representative. Sec. 473.110.
Submission of WillAfter the death of the testator, the person having custody of his will must deliver it to the probate division of the circuit court which has jurisdiction of the estate or to the probate division of the circuit court of the county where the will is found and if the latter, that court will keep a copy and deliver the original will, by certified mail, to the probate division of the circuit court which has jurisdiction of the estate. Sec. 473.043.
No will is effectual for the purpose of proving title to, or the right to the possession of, any real or personal property, disposed of by the will, until it has been admitted to probate. Sec. 473.087. When any will is exhibited to be proven the judge or clerk may immediately receive the proof and grant a certificate of probate, or, if the will is rejected, grant a certificate of rejection. Sec. 473.047.
NotificationsThe clerk, as soon as letters testamentary or of administration are issued, will cause to be published in some newspaper a notice of the appointment of the personal representative, in which will include a notice to creditors of the decedent to file their claims in the court or be forever barred. The notice must be published once a week for four consecutive weeks. The clerk must send a copy of the notice by ordinary mail to each heir and devisee whose name and address are shown on the application for letters or other records of the court, but any heir or devisee may waive notice to such person by filing a waiver in writing. The personal representative may, but is not required to, send a copy of the notice by ordinary mail or personal service to any creditor of the decedent whose claim has not been paid, allowed or disallowed. Proof of publication of notice under this section and proof of mailing of notice must be filed not later than ten days after completion of the publication. Sec. 473.033.
InventoryWithin thirty days after letters are granted the personal representative must make and return an inventory and appraisement of all of the property of the decedent, including exempt property, which comes to his possession or knowledge, a statement of all encumbrances, liens, and other charges on any item and all other property possessed by decedent at the time of his death. The property should be classified as follows:
- Real property, with plat or survey description and the street address or approximate direction and distance from any city or town, and the popular name thereof, if any;
- Furniture, household goods, and wearing apparel, but no detailed appraisement or listing of the items thereof is required;
- Corporate stocks described by name, number of shares, class of stock;
- Mortgages, bonds, notes, and other written evidences of debt, together with interest due thereon, described by name of debtor, recording data, and other identification;
- Bank accounts, insurance policies payable to the personal representative, and money;
- All other personal property accurately identified, including a statement of the decedent's proportionate share in any partnership. No detailed appraisement or listing of the assets of the partnership property is required in the inventory filed by the personal representative;
- All property possessed but not owned by the decedent at his death shall be listed in the inventory, but separately from other property, together with a statement as to the knowledge of the personal representative as to its ownership. Sec. 473.233.
Elective Share, Homestead, Family Allowance and Exempt PropertyWhen a married person dies testate as to any part of his estate, a right of election is given to the surviving spouse, upon the following conditions and limitations:
- The surviving spouse, upon election to take against the will, will receive in addition to exempt property and the allowance, one-half of the estate, subject to the payment of claims, if there are no lineal descendants of the testator; or, if there are lineal descendants of the testator, the surviving spouse shall receive one-third of the estate subject to the payment of claims;
- When a surviving spouse elects to take against the will he shall be deemed to take by descent, as a modified share, such part of the estate as comes to him under the provisions of this section, and shall take nothing under the will. Sec. 474.160.
The rights of the surviving spouse to elect to take against the will are not given in lieu of the homestead allowance, but any homestead allowance made to the surviving spouse shall be offset against the share taken under this section. Sec. 474.160(2).
A surviving spouse is entitled to a homestead allowance equal to 50% of the value of the estate, exclusive of exempt property and the family allowance not to exceed $15,000. Sec. 474.290.
The decedent's surviving spouse and minor children shall be allowed one year's support. In setting the amount of the support allowance for any persons entitled to such support, the court may consider the previous standard of living of the applicant, the condition of the estate, the income and other assets available to the applicant and the applicant's expenses. The support allowance is not chargeable against any benefit or share passing to the surviving spouse or children by the will of the decedent, unless otherwise provided, by intestate succession or by way of elective share. The death of any person entitled to a family allowance terminates the right to allowances not yet paid. Sec. 474.260.
The surviving spouse and/or the unmarried minor children of the decedent are entitled to the exempt property of the decedent. The exempt property includes the family bible and other books, one automobile or other passenger motor vehicle, including a pickup truck, with its means of propulsion, all wearing apparel of the family, all household electrical appliances, all household musical and other amusement instruments and all household and kitchen furniture, appliances, utensils and implements. Such property shall belong to the surviving spouse, if any, otherwise to the unmarried minor children in equal shares. Sec. 474.250.
Debts and DistributionsAfter every settlement, when the best interests of the estate require it, on application of any interested person, the court shall ascertain the amount of money of the estate which has come to the hands of the personal representative from all sources and the amount of claims allowable against the estate, and may order the payment of the claims so allowable. If it appears that there are not sufficient assets to pay the whole of the debts and expenses of administration, the court may apportion among the creditors that percentage of their claims as appears will not adversely affect the rights of other creditors or the payment of administration expenses. The court may order that the personal representative pay the claims allowable against the estate according to the apportionment, reserving sufficient assets to pay expected claims and also reserving apportionments made on claims which remain undecided until decision is had thereon. Sec. 473.570.
The Missouri estate tax is the maximum credit for state death taxes allowed by Internal Revenue Code Section 2011 but not less than the maximum credit for state death taxes allowable to the estate of a decedent against the federal estate tax by Section 2011 or any other provision of the laws of the United States. Sec. 145.011.
Income Tax Charitable Deductions and/or Credits
Missouri allows a taxpaying resident to deduct itemized charitable gifts in the same manner as the IRS. However, Missouri also allows a deduction for the full fair market value of any literary, musical, scholarly, or artistic composition contributed to any tax exempt organization which is operated on a not-for-profit basis by any taxpayer whose personal efforts created such composition less the amount deducted from federal adjusted gross income attributable to such contribution. Sec. 143.141.
Gift Annuity Requirements
Missouri, a "notification" state, regulates the issuance of charitable gift annuities under Missouri Revised Statutes Secs. 352.500 through 352.520. These statutes provide a charity exemption from insurance regulation provided it meets certain conditions and notifies the Missouri Department of Insurance.
To qualify, the charity must have been in continuous operation for at least three years and have $100,000 in unrestricted assets (cash, cash equivalents or publicly traded securities exclusive of the assets funding the gift annuity agreement at the time it executes a gift annuity contract). Further, the charity must be an organization described in Sec. 501(c)(3) or Sec. 170(c).
Notification ProcessWritten notice must be given to the Missouri Department of Insurance on the date on which the organization enters into its first qualified charitable gift annuity agreement. The notice must be signed by an officer or director of the organization, identify the organization and certify that it is a qualified organization and that the gift annuities are qualified gift annuities.
Disclosure LanguageThe following state-specific disclosure language is required in gift annuity contracts:
"This is a charitable gift annuity. A charitable gift annuity is not insurance under the laws of Missouri and is not subject to regulation by the Missouri Department of Insurance, Financial Institutions and Professional Registration or protected by a guaranty association."
Reserve RequirementsMissouri does not require an issuing charity to hold any amount in reserve.
Annual Filing RequirementsOnce notification is given to the state, no further reporting is required.
State Contact InformationLillian Overbey
301 West High Street, Suite 530
P.O. Box 690
Jefferson City, MO 65101
Phone: (573) 526-1589