Missouri Revised Statutes

Chapter 474
Probate Code--Intestate Succession and Wills

August 28, 2013




General rules of descent.

474.010. All property as to which any decedent dies intestate shall descend and be distributed, subject to the payment of claims, as follows:

(1) The surviving spouse shall receive:

(a) The entire intestate estate if there is no surviving issue of the decedent;

(b) 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;

(c) One-half of the intestate estate if there are surviving issue, one or more of whom are not issue of the surviving spouse;

(2) The part not distributable to the surviving spouse, or the entire intestate property, if there is no surviving spouse, shall descend and be distributed as follows:

(a) To the decedent's children, or their descendants, in equal parts;

(b) If there are no children, or their descendants, then to the decedent's father, mother, brothers and sisters or their descendants in equal parts;

(c) 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;

(d) 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;

(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;

(4) If no person is entitled to inherit as provided in this section the property shall escheat as provided by law.

(RSMo 1939 306, A.L. 1955 p. 385 236, A.L. 1980 S.B. 637, A.L. 1996 S.B. 494)

Prior revisions: 1929 306; 1919 303; 1909 332

Effective 5-23-96

CROSS REFERENCES:

Adopted child, right to inherit, 453.090, 453.170

Escheats, generally, Chap. 470

Estates of suicides to descend as in cases of natural death, Const. Art. I 30



Failure to survive decedent by 120 hours deemed predecease of decedent--consequences.

474.015. 1. Any person who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent for purposes of homestead allowance, exempt property, and intestate succession, and the decedent's heirs are determined accordingly. If the time of death of the decedent, or of the person who would otherwise be an heir, or the times of death of both, cannot be determined, and it cannot be established that the person who would otherwise be an heir has survived the decedent by one hundred twenty hours, it is deemed that the person failed to survive for the required period.

2. This section is not to be applied where its application would result in a taking of intestate estate by the state under section 474.010.

(L. 1980 S.B. 637, A.L. 1981 S.B. 117)

Effective 6-10-81



Lineals take per capita and per stirpes, when.

474.020. When several lineal descendants, all of equal degree of consanguinity to the intestate, or his father, mother, brothers and sisters, or his grandfathers, grandmothers, uncles and aunts, or any ancestor living and their children, come into partition, they shall take per capita, that is, by persons; where a part of them are dead, and part living, and the issue of those dead have a right to partition, such issue shall take per stirpes; that is, the share of the deceased parent.

(RSMo 1939 310, A.L. 1955 p. 385 237)

Prior revisions: 1929 310; 1919 307; 1909 336



Partial intestacy.

474.030. If part but not all of the estate of a decedent is validly disposed of by will, the part not disposed of by will shall be distributed as provided herein for intestate estates.

(L. 1955 p. 385 238)



Collaterals of half blood inherit, how.

474.040. When the inheritance is directed to pass to the ascending and collateral kindred of the intestate, if part of the collaterals is of the whole blood of the intestate, and the other part of the half blood only, those of the half blood shall inherit only half as much as those of the whole blood; but if all collaterals are of the half blood, they shall have whole portions, only giving to the ascendants double portions.

(RSMo 1939 309, A.L. 1955 p. 385 239)

Prior revisions: 1929 309; 1919 306; 1909 335



Posthumous children to inherit.

474.050. All posthumous children, or descendants, of the intestate shall inherit in like manner, as if born in the lifetime of the intestate; but no right of inheritance accrues to any person other than the children or descendants of the intestate, unless they are born and capable in law to take as heirs at the time of the intestate's death.

(RSMo 1939 307, A.L. 1955 p. 385 240)

Prior revisions: 1929 307; 1919 304; 1909 333



Determination of relationship of parent and child--adopted person is child of adopting parent, exception--illegitimate child, relationship determined.

474.060. 1. If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person, an adopted person is the child of an adopting parent and not of the natural parents, except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and such natural parent.

2. In cases not covered by subsection 1 herein, a person born out of wedlock is a child of the mother. That person is also a child of the father, if either of the following occur:

(1) The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void;

(2) The paternity is established by an adjudication before the death of the father, or is established thereafter by clear and convincing proof, except that the paternity established under this subdivision (2) is ineffective to qualify the father or his kindred to inherit from or through the child, unless the father has openly treated the child as his, and has not refused to support the child.

(L. 1980 S.B. 637, A.L. 1981 S.B. 117)

Effective 6-10-81

*No continuity with 474.060 as repealed by L. 1980 S.B. 637.



Legitimation by marriage.

474.070. If a man, having by a woman a child or children, afterward intermarries with her and recognizes the child or children to be his, they are thereby legitimated.

(RSMo 1939 315, A.L. 1955 p. 385 242)

Prior revisions: 1929 315; 1919 312; 1909 341



Issue of void or dissolved marriage, legitimate.

474.080. The issue of all marriages deemed null in law, or dissolved by divorce, are legitimate.

(RSMo 1939 316, A.L. 1955 p. 385 243)

Prior revisions: 1929 316; 1919 313; 1909 342



Advancements counted against share, when--evaluation.

474.090. If a person dies intestate as to all his estate, property which he gave in his lifetime to an heir is treated as an advancement against the latter's share of the estate only if declared in a contemporaneous writing by the decedent or acknowledged in writing by the heir to be an advancement. For this purpose, the property advanced is valued as of the time the heir came into possession or enjoyment of the property, or as of the time of death of the decedent, whichever occurs first. If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the intestate share to be received by the recipient's issue, unless the declaration or acknowledgment provides otherwise.

(L. 1955 p. 385 244, A.L. 1980 S.B. 637)

Effective 1-1-81



Alienage no bar to descent.

474.100. In making title by descent, it is no bar to a demandant that any ancestor through whom he derives his descent from the intestate is or has been an alien.

(RSMo 1939 313, A.L. 1955 p. 385 245)

Prior revisions: 1929 313; 1919 310; 1909 339

CROSS REFERENCE:

Alien may acquire real estate by descent or devise, 442.560



Curtesy and dower abolished.

474.110. The estates of curtesy and dower are hereby abolished, but any such estate now vested is not affected by this code.

(L. 1955 p. 385 246)



Inheritance and statutory rights deemed waived, when.

474.120. The rights of inheritance or any other statutory rights of a surviving spouse of a decedent who dies intestate shall be deemed to have been waived if prior to, or after, the marriage such intended spouse or spouse by a written contract did agree to waive such rights, after full disclosure of the nature and extent thereof, including the nature and extent of all property interests of the parties, and if the thing or promise given to the waiving party is a fair consideration under all the circumstances.

(RSMo 1939 334, A.L. 1955 p. 385 247, A.L. 1963 p. 655)

Prior revisions: 1929 334; 1919 330; 1909 362



Estate conveyed determines on failure of contractual bar.

474.130. When any deed, conveyance, assurance, agreement or contract in lieu of the inheritance or other statutory rights of a spouse, through any default, fails to be a legal bar to such rights and the surviving spouse demands his inheritance and statutory rights, then the estate and interest so conveyed to the surviving spouse ceases and determines.

(RSMo 1939 336, A.L. 1955 p. 385 249)

Prior revisions: 1929 336; 1919 332; 1909 364



Inheritance and statutory rights barred on misconduct of spouse.

474.140. If any married person voluntarily leaves his or her spouse and goes away and continues with an adulterer or abandons his or her spouse without reasonable cause and continues to live separate and apart from his or her spouse for one whole year next preceding his or her death, or dwells with another in a state of adultery continuously, such spouse is forever barred from his or her inheritance rights, homestead allowance, exempt property or any statutory allowances from the estate of his or her spouse unless such spouse is voluntarily reconciled to him or her and resumes cohabitation with him or her.

(RSMo 1939 337, A.L. 1955 p. 385 250, A.L. 2001 H.B. 537)

Prior revisions: 1929 337; 1919 333; 1909 365



Gifts in fraud of marital rights--presumptions on conveyances.

474.150. 1. Any gift made by a person, whether dying testate or intestate, in fraud of the marital rights of his surviving spouse to share in his estate, shall, at the election of the surviving spouse, be treated as a testamentary disposition and may be recovered from the donee and persons taking from him without adequate consideration and applied to the payment of the spouse's share, as in case of his election to take against the will.

2. Any conveyance of real estate made by a married person at any time without the joinder or other written express assent of his spouse, made at any time, duly acknowledged, is deemed to be in fraud of the marital rights of his spouse, if the spouse becomes a surviving spouse, unless the contrary is shown.

3. Any conveyance of the property of the spouse of a disabled person is deemed not to be in fraud of the marital rights of the disabled person if the probate division of the circuit court authorizes the conservator of the disabled person to join in or assent to the conveyance after finding that it is not made in fraud of the marital rights. Any conveyance of the property of a minor or disabled person made by a conservator pursuant to an order of court is deemed not to be in fraud of the marital rights of the spouse of the protectee.

(L. 1955 p. 385 251, A.L. 1957 p. 829, A.L. 1959 S.B. 141, A.L. 1983 S.B. 44 & 45)

CROSS REFERENCE:

Conveyance of estate by entireties by guardian of minor or incompetent, 442.035



Contract to make will or devise, revoke or not revoke will or devise, or to die intestate, how established.

474.155. A contract to make a will or devise, to revoke or not to revoke a will or devise, or to die intestate, if executed after January 1, 1981, can be established only by

(1) Provisions of a will stating material provisions of the contract;

(2) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or

(3) A writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

(L. 1980 S.B. 637)

Effective 1-1-81



Election by surviving spouse to take against will, effect.

474.160. 1. When a married person dies testate as to any part of his estate, a right of election is given to the surviving spouse solely under the limitations and conditions herein stated:

(1) The surviving spouse, upon election to take against the will, shall receive in addition to exempt property and the allowance under section 474.260 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;

(2) 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;

(3) Whenever there is an effective election to take against a will which provides for benefits to accrue upon the death of the surviving spouse, the election has the same effect as to the benefits as if the surviving spouse had predeceased the testator, unless the will otherwise provides.

2. The rights of the surviving spouse under this section are not given in lieu of the homestead allowance under section 474.290, but any homestead allowance made to the surviving spouse shall be offset against the share taken under this section.

(L. 1955 p. 385 252, A.L. 1957 p. 829)



Valuation of estate, how determined.

474.163. 1. For the purposes of section 474.160, the estate consists of all money and property owned by the decedent at his death, reduced by funeral and administration expenses, exempt property, family allowance and enforceable claims, and increased by the aggregate value of all money and property derived by the surviving spouse from the decedent by any means other than testate or intestate succession, exempt property or family allowance without a full consideration in money or money's worth. The aggregate value of money and property so derived by the surviving spouse from the decedent shall be offset against the elective share given by section 474.160.

2. Property derived from the decedent includes, but is not limited to:

(1) Any beneficial interest of the surviving spouse in a trust created by the decedent during his lifetime;

(2) Any property appointed to the spouse by the decedent's exercise of a general or special power of appointment also exercisable in favor of persons other than the spouse;

(3) Any proceeds of insurance, including accidental death benefits, on the life of the decedent attributable to premiums paid by him;

(4) Any lump sum immediately payable, and the commuted value of the proceeds of annuity contracts under which the decedent was the primary annuitant, attributable to premiums paid by him;

(5) The commuted value of amounts payable after the decedent's death under any public or private pension, disability compensation, death benefit or retirement plan, exclusive of the Federal Social Security system, by reason of service performed or disabilities incurred by the decedent; and

(6) The value of the share of the surviving spouse resulting from rights in community property in any other state formerly owned with the decedent.

Premiums paid by the decedent's employer, his partner, a partnership of which he was a member, or his creditors, are deemed to have been paid by the decedent.

3. When immediately before the decedent's death the surviving spouse was a cotenant or remainderman with respect to money, property, a trust fund or an account in a bank or other financial institution and, incident to such death, the surviving spouse became the sole owner thereof or the owner of a life interest therein, the whole value of such sole ownership or life interest shall be deemed to have been received from the decedent, except as to the proportion of such value, if any, derived from contributions toward the acquisition, establishment or creation of the money, property, fund or account made by the surviving spouse or ascendant or collateral blood relatives of the surviving spouse, other than the decedent.

4. Property owned by the surviving spouse at the decedent's death is valued as of the date of death. Property transferred by the spouse is valued at the time the transfer became irrevocable, or at the decedent's death, whichever occurred first. Income earned by included property prior to the decedent's death is not treated as property derived from the decedent.

5. Property owned by the surviving spouse as of the decedent's death, or previously transferred by the surviving spouse, is presumed to have been derived from the decedent, except to the extent that the surviving spouse establishes that it was derived from another source.

6. If it appears that the elective share given by section 474.160, as computed in accordance with this section, will be less advantageous to the surviving spouse than the provision made for that spouse by the will, the surviving spouse may rescind the election to take against the will.

7. Nothing in this section shall be deemed to require the surviving spouse to refund to the estate money or property derived from the decedent or its value.

(L. 1980 S.B. 637)

Effective 1-1-81



Notice of right to elect.

474.170. The clerk of the court, after the will of a married person is admitted to probate, shall, within one month thereafter, mail by ordinary mail a written notice, directed to the testator's surviving spouse at his last known residence address, informing him that a written election must be filed by or on behalf of the surviving spouse in order to take against the will, within ten days after the expiration of the time limited for contesting the will of the decedent, unless the time is extended pursuant to law. Failure of the clerk to mail or of any surviving spouse to receive the notice herein required does not affect the time for making an election as prescribed by section 474.180. If the court is informed that a surviving spouse has been adjudicated a disabled or incapacitated person but has no guardian or conservator the notice need not be given but the court may appoint a guardian ad litem to make the election.

(L. 1955 p. 385 253, A.L. 1957 p. 829, A.L. 1983 S.B. 44 & 45)



Time for making of election.

474.180. The election by a surviving spouse to take the share herein provided may be made at any time within ten days after the expiration of the time limited for contesting the will of decedent, except that if, at the expiration of the period for making the election, litigation is pending to test the validity or to determine the effect or construction of the will, or to determine the existence of issue surviving the decedent, or to determine any other matter of law or fact which would affect the amount of the share to be received by the surviving spouse, the right of the surviving spouse to make an election shall not be barred until the expiration of ninety days after the final determination of the litigation.

(L. 1955 p. 385 254, A.L. 1957 p. 829)



Form of election, filing.

474.190. The election to take the share hereinbefore provided shall be in writing, signed and acknowledged by the surviving spouse or by the guardian ad litem or conservator of his estate and shall be filed in the office of the clerk of the court. It may be in the following form:

I, A. B., surviving wife (or husband) of C. D., late of the county of .......... and state of ............ do hereby elect to take my legal share in the estate of the said C. D., and do hereby renounce all provisions in the will of the said C. D. inconsistent herewith.

Signed, ............................................. (Acknowledgment)

(Signature)

(L. 1955 p. 385 255, A.L. 1983 S.B. 44 & 45)



Right of election personal to surviving spouse.

474.200. The right of election of the surviving spouse is personal to him. It is not transferable and cannot be exercised after his death; but if the surviving spouse is disabled or a minor, his guardian ad litem or conservator may elect for him with the approval of the court or, on application of an interested person, the court may order his guardian ad litem or conservator to elect for him.

(L. 1955 p. 385 256, A.L. 1957 p. 829, A.L. 1983 S.B. 44 & 45)



Waiver of right to elect.

474.220. The right of election of a surviving spouse hereinbefore given may be waived before or after marriage by a written contract, agreement or waiver signed by the party waiving the right of election, after full disclosure of the nature and extent of the right, if the thing or the promise given to the waiving party is a fair consideration under all the circumstances. This written contract, agreement or waiver may be filed in the same manner as hereinbefore provided for the filing of an election.

(L. 1955 p. 385 258)



Effect of failure to elect to take against will.

474.230. When a surviving spouse makes no election to take against the will, he shall receive the benefit of all provisions in his favor in the will, if any, and shall share as heir, in accordance with the provisions of sections 474.010 to 474.030, in any estate undisposed of by the will. By taking under the will or consenting thereto, he does not thereby waive his right to a homestead allowance, to exempt property or to an allowance under section 474.260 unless it clearly appears from the will that the provision therein made for him was intended to be in lieu of such rights or any of them.

(L. 1955 p. 385 259)



Share of omitted spouse.

474.235. 1. If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received if the decedent left no will, unless it appears from the will that the omission was intentional or that the testator provided for the spouse by transfer outside the will, and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator, the amount of the transfer or other evidence.

2. In satisfying a share provided by this section, the devises made by the will abate as provided in section 473.620.

(L. 1980 S.B. 637)

Effective 1-1-81



Share of omitted children, how determined.

474.240. 1. If a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the omitted child receives a share in the estate equal in value to that which he would have received if the testator had died intestate, unless:

(1) It appears from the will that the omission was intentional;

(2) When the will was executed the testator had one or more children and devised substantially all his estate to the other parent of the omitted child; or

(3) The testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator, the amount of the transfer or other evidence.

2. If at the time of execution of the will the testator fails to provide in his will for a living child solely because he believes the child to be dead, the child receives a share in the estate equal in value to that which he would have received if the testator had died intestate.

3. An illegitimate child is not a child of a male testator, for the purposes of this section, unless the testator, during his lifetime or in the will, recognized that the child was his.

4. In satisfying a share provided in this section, the devises made by the will abate as provided in section 473.620.

(L. 1955 p. 385 260, A.L. 1980 S.B. 637)

Effective 1-1-81



Exempt property of surviving spouse or minor children.

474.250. The surviving spouse, or unmarried minor children of a decedent are entitled absolutely to the following property of the estate without regard to its value: 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.

(RSMo 1939 106, A.L. 1955 p. 385 134, A.L. 1957 p. 829, A.L. 1980 S.B. 637, A.L. 1996 S.B. 494)

Effective 5-23-96



One year support allowance, property in lieu thereof--allowance exempt from all claims.

474.260. 1. In addition to the right to homestead allowance and exempt property, the decedent's surviving spouse and minor children whom the decedent was obligated to support and the children who were in fact being supported by the decedent are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance may not continue for longer than one year. The allowance may be paid as a lump sum or in periodic installments. It is payable to the surviving spouse, if living, for the use of the surviving spouse and minor or dependent children; otherwise to the children, or person having their care and custody, but if a minor or dependent child is not living with the surviving spouse, the allowance may be made partially to the child or the child's guardian or other person having the child's care and custody, and partially to the spouse, as their needs may appear. 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.

2. The court may authorize the recipient of the support allowance to receive any property of the estate in lieu of all or part of the money allowance authorized by this section, and in any case where the court makes an allowance in money, the recipient of the support allowance may select and receive any property of the estate, of a value not exceeding the allowance in money, which shall be in lieu of and which value shall be credited against the allowance. The right of selection provided for in this section is subject to the provisions of section 473.620. The allowance authorized by this section is exempt from all claims.

3. Where real estate is selected pursuant to this section, the provisions of subsections 2, 3, 4, 5 and 6 of section 474.290 shall be followed.

(RSMo 1939 106, A.L. 1955 p. 385 135, A.L. 1957 p. 829, A.L. 1965 p. 637, A.L. 1967 p. 645, A.L. 1971 S.B. 85, A.L. 1980 S.B. 637, A.L. 1996 S.B. 494)

Prior revisions: 1929 106, 107; 1919 105, 106; 1909 114, 115

Effective 5-23-96



Exempt property applied for, when.

474.270. The surviving spouse or other custodian of unmarried minor children shall apply for the property named in section 474.250 before the same is distributed or sold, but the property so delivered shall in no case be liable for the payment of the claims against the estate.

(RSMo 1939 108, A.L. 1955 p. 385 136, A.L. 1957 p. 829)

Prior revisions: 1929 109; 1919 108; 1909 117



Proceeds of sale of exempt property paid over, when.

474.280. If the surviving spouse or unmarried minor children do not receive the property allowed him or them under section 474.250 and the same is sold by the executor or administrator, the court shall order the money to be paid to the surviving spouse or unmarried minor children at any time before the same is paid out for claims or distributed.

(RSMo 1939 109, A.L. 1955 p. 385 137, A.L. 1957 p. 829)

Prior revisions: 1929 110; 1919 109; 1909 118



Homestead allowance--partition of real estate selected, procedure--waiver.

474.290. 1. At any time after the return of the inventory, the court, on application of the surviving spouse or of the guardian, conservator, or person having custody of the persons of the unmarried minor children of a decedent, shall make an allowance to the surviving spouse or unmarried minor children of an amount not exceeding fifty percent of the value of the estate, exclusive of exempt property, and the allowance made under section 474.260, but in no case shall the allowance exceed fifteen thousand dollars. Such allowance shall be known as a homestead allowance and is in addition to the exempt property and the allowance to the surviving spouse and unmarried minor children under section 474.260. The homestead allowance is exempt from all claims against the estate. The homestead allowance shall be offset against the share to which the surviving spouse or any minor child who receives it is entitled as a distributee of the estate, but the allowance shall not be diminished if it is greater than the distributive share. The allowance may consist, in whole or in part, of money or property, real or personal, and subject to the provisions of section 473.620, property may be selected as provided in this section. The homestead allowance is the property of the surviving spouse, if any; but if there is no surviving spouse or if the surviving spouse dies before receiving the homestead allowance, then it is the property of the unmarried minor children in equal shares. When a decedent is survived by married minor children or children of full age, or both, and also by unmarried minor children but no spouse, the homestead allowance as determined under the foregoing provisions of this section shall be divided by the total number of all of the children of the decedent and the shares of the unmarried minor children as so determined shall, notwithstanding the foregoing provisions, constitute the homestead allowance. The selection of property shall be made by the surviving spouse, if any, otherwise by the guardian or conservator of each unmarried minor child for such child, or by a person designated by the court, but no real estate may be selected or included in any homestead allowance unless selection of the specific real estate is requested in the application filed within the time provided by subsection 7 of this section.

2. If real estate is included in the homestead allowance, the personal representative shall convey the same as determined by this section by deed to the person entitled thereto.

3. If a surviving spouse selects, as a homestead allowance, an interest in property having a value in excess of the homestead allowance, the court shall order the personal representative to convey the property to the surviving spouse upon the payment to the estate by such spouse of an amount of money equal to the difference between the value of the property and the homestead allowance or it shall order the personal representative to convey an undivided interest in the property to the surviving spouse which is equivalent to the ratio which the homestead allowance bears to the value of the property, at the option of the spouse.

4. If the court finds that real estate selected by the surviving spouse is a part of a larger tract and that the real estate selected may be separated from the residue of the larger tract without great prejudice to the owners, the court may proceed to set off to the surviving spouse the real estate constituting the homestead allowance in the same manner as provided by sections 528.200 to 528.240 for the partition of real estate, and this portion so set off shall be conveyed by the personal representative, by deed, to the surviving spouse.

5. In all proceedings under this section the court may order such appraisals of the property selected as it deems necessary and it shall determine the value of the property after due notice to all interested parties in the manner as ordered by the court pursuant to section 472.100 and hearing pursuant thereto.

6. If within five days after the court's determination of the value of the property any interested party files written exception to the court's determination and avers in the exception that the amount so determined is excessive or inadequate and if the court finds that a sale of the property would be in the best interests of the estate, then the court, in lieu of the procedures provided in subsections 1 and 2, may order a public sale of such property in the manner provided by sections 473.507 and 473.510. Upon such sale, if the surviving spouse is the high bidder, the amount of the homestead allowance shall be credited against the purchase price. Within ten days after such sale a report of the sale shall be filed and upon approval of the report by the court, the personal representative shall execute, acknowledge and deliver a conveyance to the purchaser according to the order of approval which in form and substance shall be the same as that provided for in subsection 2 of section 473.520, omitting any reference to certificate of appraisement.

7. If no application for the setting apart and allowance authorized in this section is filed within ten days after expiration of the time allowed for filing of claims, the homestead allowance is deemed waived by the surviving spouse or the unmarried minor children and the spouse or the unmarried minor children have no right to homestead or homestead allowance under any law of this state.

8. The allowance made under this section is in lieu of all dower and homestead rights in the property of a decedent. After January 1, 1956, no right of homestead under sections 513.495* and 513.500* vests in the surviving spouse or minor children of any decedent, but neither this section nor the repeal of sections 513.495* and 513.500* affects homestead rights heretofore vested in any surviving spouse or minor children.

(L. 1955 p. 385 138, A.L. 1957 p. 829, A.L. 1961 p. 653, A.L. 1978 H.B. 1634, A.L. 1983 S.B. 44 & 45, A.L. 1996 S.B. 494)

Effective 5-23-96

*Sections "513.495 and 513.500" were both repealed by L. 1957 p. 292 1.



Provision of family allowance by independent personal representative--limitations--relief by court.

474.293. An independent personal representative may, without court direction, authorization or approval, make any determination, finding, authorization, allowance, conveyance, payment, partition or delivery, or do any other act which the court could direct, authorize, make or do under sections 474.250, 474.260, 474.280 and 474.290, except that he may not, without court authorization, set the family allowance at more than a lump sum of six thousand dollars or periodic installments in excess of five hundred dollars per month for one year. The independent personal representative, or any person aggrieved by any determination, finding, authorization, allowance, conveyance, payment, partition, delivery or other act, or by failure to act, under this section, may petition the court for appropriate relief, which relief may provide a family allowance larger or smaller than that which the independent personal representative determined or could have determined.

(L. 1980 S.B. 637)

Effective 1-1-81



Effect of death of spouse or child or marriage of minor on family and homestead allowances.

474.300. Death of a surviving spouse within the one year period for which the allowance is provided under section 474.260, for his maintenance, shall not affect the right of the surviving spouse to the allowance or the ordering thereof by the court. If an unmarried minor child dies, marries or comes of age, no allowance shall be made under section 474.260 for his maintenance for any period after such death, marriage or coming of age. When a surviving spouse dies without having received the homestead allowance, it may be paid or may be allowed to the unmarried minor children. If an unmarried minor child entitled to homestead allowance dies, marries or comes of age before his homestead allowance has been made, and within the time for applying for it, he shall not be entitled to the allowance, but if he dies, marries or comes of age after it has been allowed but before it was paid, he shall be entitled to it.

(L. 1955 p. 385 138A, A.L. 1965 p. 637)



Who may make will.

474.310. Any 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 and may also devise the whole or any part of his or her body to any college, university, licensed hospital or to the state anatomical board for use in the manner expressly provided by his or her will or otherwise.

(L. 1955 p. 385 261, A.L. 1999 H.B. 136 merged with S.B. 271)



Will form, execution, attestation.

474.320. 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.

(RSMo 1939 520, A.L. 1955 p. 385 262)

Prior revisions: 1929 519; 1919 507; 1909 537



Who may witness will--effect of interest in will.

474.330. 1. Any person competent to be a witness generally in this state may act as attesting witness to a will.

2. No will is invalidated because attested by an interested witness; but any interested witness shall, unless the will is also attested by two disinterested witnesses, forfeit so much of the provisions therein 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.

3. No attesting witness is interested by reason of being a creditor of the estate or because he is named executor in the will or unless the will gives to him some personal and beneficial interest.

(L. 1955 p. 385 278)



Will may provide for disposal of personal property by separate list.

474.333. A will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money, evidences of indebtedness, documents of title, securities and property used in trade or business. To be admissible under this section as evidence of the intended disposition, the writing must either be in the handwriting of the testator or be signed by the testator, must be dated and must describe the items and the devisees with reasonable certainty. The writing may:

(1) Be referred to as one to be in existence at the time of the testator's death;

(2) Be prepared before or after the execution of the will;

(3) Be altered by the testator after its preparation; and

(4) Be a writing which has no significance apart from its effect upon the dispositions made by the will.

(L. 1980 S.B. 637, A.L. 1996 S.B. 494)

Effective 5-23-96



Written will self-proved, how.

474.337. 1. A written will may at the time of its execution, or at any subsequent date, be made self-proved, by the acknowledgment thereof 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 in form and content substantially as follows:

THE STATE OF ......................

COUNTY OF .........................

I, the undersigned, an officer authorized to administer oaths, certify that ..............., the testator, and the witnesses, whose names are signed to the attached or foregoing instrument, having appeared together before me and having been first duly sworn, each then declared to me that the testator signed and executed the instrument as his last will, and that he had willingly signed or willingly directed another to sign for him, and that he executed it as his free and voluntary act for the purposes therein expressed; and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of his knowledge the testator was at that time eighteen or more years of age, of sound mind, and under no constraint or undue influence.

In witness whereof I have hereunto subscribed my name and affixed my official seal this ............... day of ..........., 20.. . (Signed) ..................................................... .......................... (SEAL) ....................................................... ........................

(Official capacity of officer)

2. An officer authorized to administer oaths under the laws of this state, who has no official seal, including a commissioner of deeds acting under section 486.130, and a judge advocate or other commissioned officer of the Armed Forces acting under Article 136 of the Uniform Code of Military Justice (United States Code, Title 10, Section 936), whether or not on active duty, section 492.070, or an equivalent court rule, may, in lieu of affixing an official seal to his certificate, include in it a statement that he has no official seal and reciting the facts which establish his authority. Such a statement has the same effect as an official seal.

(L. 1980 S.B. 637, A.L. 1981 S.B. 117, A.L. 1991 S.B. 358)

Effective 6-12-91



Nuncupative wills.

474.340. 1. A nuncupative 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:

(1) Declared to be his will by the testator before two disinterested witnesses;

(2) Reduced to writing by or under the direction of one of the witnesses within thirty days after such declaration; and

(3) Submitted for probate within six months after the death of the testator.

2. The nuncupative will may dispose of personal property only and to an aggregate value not exceeding five hundred dollars.

3. A nuncupative will neither revokes nor changes an existing written will.

(L. 1955 p. 385 263)



Revocation of nuncupative will.

474.350. A nuncupative will or any part thereof can be revoked by another nuncupative will.

(L. 1955 p. 385 264)



Written will valid if executed in compliance with law.

474.360. A written will is valid if executed in compliance with:

(1) The laws of this state;

(2) The laws, as of the time of execution, of the place where the will is executed; or

(3) The laws of the place where, at the time of execution or the time of the testator's death, the testator is domiciled, has a place of abode or is a national.

(L. 1980 S.B. 637)

Effective 1-1-81

*No continuity with 474.360 as repealed by L. 1980 S.B. 637.



Foreign wills, recorded when, evidence.

474.370. Authenticated copies of wills, probated in another state, and the probate thereof, shall be recorded in the same manner as wills executed and proved in this state, and shall be admitted in evidence in the same manner and with like effect.

(RSMo 1939 552, A.L. 1955 p. 385 266)

Prior revisions: 1929 551; 1919 539; 1909 568



Probate of foreign wills.

474.380. Any will admitted to probate in any state, territory or district of the United States, together with the order admitting the same to probate therein, authenticated according to act of congress, shall be admitted to probate in this state in any county where real estate is affected thereby, or filed in the office of the recorder of deeds in such county. All wills so authenticated, admitted to probate in any county, or filed for record in any recorder's office, give notice thereof, and they, or certified copies thereof, shall be admitted as evidence in all courts in this state. When any will is admitted to probate in this state under this section a certified copy thereof, under official seal, made by the judge or clerk, or, in case the same is filed in the office of the recorder of deeds, a copy of the record thereof, and order admitting it to probate, duly authenticated, may be filed in any other county in this state where real estate is thereby affected, with like effect as if originally filed therein.

(RSMo 1939 553, A.L. 1955 p. 385 267)

Prior revisions: 1929 552; 1919 540



Wills and trusts, English translation required, costs.

474.382. All wills and estates shall have an official English translation to ensure the accurate execution of such documents. If no such translation is provided at the time of probate, the court with jurisdiction shall make such arrangements as necessary to create an English translation. The reasonable costs associated with document translation shall be reimbursed from the estate or trust or both, as provided in the trust agreement, testamentary document, or as allocated by the court.

(L. 1998 S.B. 583 & 645 5)



Contest of foreign will.

474.390. Any will admitted to probate or recorded under section 474.380 thereafter may be contested and annulled, within the same time, and in the same manner, as wills executed and proved in this state.

(RSMo 1939 554, A.L. 1955 p. 385 268)

Prior revisions: 1929 553; 1919 541; 1909 569



Revocation of wills.

474.400. No will in writing, except in the cases herein mentioned, nor any part thereof, shall be revoked, except by a subsequent will in writing, or by burning, cancelling, tearing or obliterating the same, by the testator, or in his presence, and by his consent and direction.

(RSMo 1939 521, A.L. 1955 p. 385 269)

Prior revisions: 1929 520; 1919 508; 1909 538



Revocation of subsequent will also revokes first will--exception.

474.410. 1. If a second will, which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by acts under section 474.400, the first will is revoked in whole or in part, unless it is evident from the circumstances of the revocation of the second will or from testator's contemporary or subsequent declarations that he intended the first will to take effect as executed.

2. If a second will, which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by a third will, the first will is revoked in whole or in part, except to the extent it appears from the terms of the third will that the testator intended the first will to take effect.

(RSMo 1939 525, A.L. 1955 p. 385 270, A.L. 1980 S.B. 637)

Prior revisions: 1929 524; 1919 513; 1909 543

Effective 1-1-81



Change in circumstances--divorce.

474.420. If after making a will the testator is divorced, all provisions in the will in favor of the testator's spouse so divorced are thereby revoked but the effect of the revocation shall be the same as if the divorced spouse had died at the time of the divorce. With this exception, no written will, nor any part thereof, can be revoked by any change in the circumstances or condition of the testator.

(L. 1955 p. 385 271)



Property given by testator during life treated as satisfaction of devise, when--valuation.

474.425. Property which a testator gave in his lifetime to a person is treated as a satisfaction of a devise to that person in whole or in part only if the will provides for deduction of the lifetime gift, or the testator declares in a contemporaneous writing that the gift is to be deducted from the devise or in satisfaction of the devise, or the devisee acknowledges in writing that the gift is in satisfaction. For purpose of partial satisfaction, property given during the testator's lifetime is valued as of the time the devisee came into possession or enjoyment of the property or as of the time of death of the testator, whichever occurs first.

(L. 1980 S.B. 637)

Effective 1-1-81



Court to conform to directions of will.

474.430. All courts and others concerned in the execution of last wills shall have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before them.

(RSMo 1939 568, A.L. 1955 p. 385 272)

Prior revisions: 1929 567; 1919 555; 1909 583



Class gift terminology includes certain persons and relationships, how determined.

474.435. Halfbloods, adopted persons and persons born out of wedlock are included in class gift terminology and terms of relationship in accordance with rules for determining relationships for purposes of intestate succession.

(L. 1980 S.B. 637)

Effective 1-1-81



Bond to convey does not revoke devise.

474.440. A bond, covenant or agreement made for a valuable consideration, by a testator, to convey any property devised or bequeathed in any last will previously made, does not constitute a revocation of the previous devise or bequest, either in law or equity; but the property passes by the devise or bequest, subject to the same remedies on the bond, covenant or agreement, for specific performance or otherwise, against the devisees or legatees, as might be had by law against the heirs of the testator, or his next of kin, if the same had descended to them.

(RSMo 1939 523, A.L. 1955 p. 385 273)

Prior revisions: 1929 522; 1919 511; 1909 541



Encumbrance does not revoke devise--exoneration, when.

474.450. 1. A charge or encumbrance upon any real or personal property, for the purpose of securing the payment of money or the performance of any covenant or agreement, is not deemed a revocation of any will, relating to the same property, previously executed.

2. When any property is specifically devised and at the time of the testator's death is subject to a mortgage, pledge, or other lien created prior to the execution of the will or created by a mortgage, pledge, or other lien executed after the execution of the will as a renewal, or extension, or refinancing of the debt created prior to the execution of the will, the devisee shall take the property so devised subject to the charge or encumbrance unless the will provides expressly or by necessary implication that such mortgage be otherwise paid, but if the mortgage, pledge or other lien was created after the execution of the will the devisee shall take the property exonerated from the encumbrance unless it appears from the terms of the loan agreement or from the circumstances surrounding the loan transaction that the testator intended that the encumbrance should be paid out of the encumbered property rather than from his general estate.

(RSMo 1939 524, A.L. 1955 p. 385 274)

Prior revisions: 1929 523; 1919 512; 1909 542

CROSS REFERENCE:

Redemption of encumbered property, 473.287, 473.387



Devisee who does not survive testator by 120 hours treated as predeceasing testator--exceptions.

474.455. A devisee who does not survive the testator by one hundred twenty hours is treated as if he predeceased the testator, unless the will of decedent contains some language dealing explicitly with simultaneous deaths or deaths in a common disaster, or requiring that the devisee survive the testator or survive the testator for a stated period in order to take under the will.

(L. 1980 S.B. 637)

Effective 1-1-81



Testator surviving devisee, effect.

474.460. When any estate is devised to any child, grandchild or other relative of the testator, and the devisee dies before the testator, or is treated as if he predeceased the testator, leaving lineal descendants who survive the testator by one hundred twenty hours, the descendants shall take the estate, real or personal, as the devisee would have done if he had survived the testator by one hundred twenty hours.

(RSMo 1939 528, A.L. 1955 p. 385 275, A.L. 1980 S.B. 637)

Prior revisions: 1929 527; 1919 516; 1909 546

Effective 1-1-81



Exchange of securities not to adeem specific legacy.

474.463. An exchange of corporate stock, or of bonds, promissory notes or other securities, for other stock, bonds, promissory notes or securities of the same corporation or obligor or its successor does not adeem a specific legacy of the stock, bonds, promissory notes or securities, and the devisee is entitled to those received by the testator in exchange to the extent that they are part of his estate. A change, by a stock split or like device, in the proportional interest in a corporation represented by a share of its stock, entitles a devisee of a specified number of shares to so many shares as are needed to represent the same proportional interest in the corporation as the specified number represented when the will was executed, whether the devise is specific, general or demonstrative.

(L. 1980 S.B. 637, A.L. 1981 S.B. 117)

Effective 6-10-81



Failure of devise to become part of residue.

474.465. 1. Except as provided in section 474.460, if a devise, other than a residuary devise, fails for any reason, it becomes a part of the residue.

2. Except as provided in section 474.460, if the residue is devised to two or more persons and the share of one of the residuary devisees fails for any reason, his share passes to the other residuary devisee, or to other residuary devisees in proportion to their interest in the residue.

(L. 1980 S.B. 637)

Effective 1-1-81



Rule in Shelley's case abolished, effect.

474.470. Where under a will a remainder is devised which is limited to the heirs, or heirs of the body of a person to whom a life estate in the same premises is devised, the persons who, on the termination of the life estate, are the heirs, or heirs of the body of the life tenant, are entitled to take as purchasers in fee simple, by virtue of the remainder so limited in them.

(RSMo 1939 563, A.L. 1955 p. 385 276)

Prior revisions: 1929 562; 1919 555; 1909 578



Devise deemed to convey fee simple, when.

474.480. In all devises of lands or other estate in this state, in which the words "heirs and assigns", or "heirs and assigns forever", are omitted, and no expressions are contained in the will whereby it appears that the devise was intended to convey an estate for life only, and no further devise is made of the devised premises, to take effect after the death of the devisee to whom the same is given, it shall be understood to be the intention of the testator thereby to devise an absolute estate in the same, and the devise conveys an estate in fee simple to the devisee, for all of the devised premises.

(RSMo 1939 564, A.L. 1955 p. 385 277)

Prior revisions: 1929 563; 1919 551; 1909 579



Wills of land to be recorded, where.

474.500. In all cases where lands are devised by last will, a copy of such will shall be recorded in the recorder's office in the county where the land is situated, and if the lands are situated in different counties, then a copy of such will shall be recorded in the recorder's office in each county within six months after probate.

(RSMo 1939 549, A.L. 1955 p. 385 286A)

Prior revisions: 1929 548; 1919 536; 1909 566

CROSS REFERENCE:

Recorded will to impart notice, when, 490.340



Deposit of will in court in testator's lifetime.

474.510. 1. A will may be deposited by the person making it, or by such person's agent, with the probate division of any circuit court, to be safely kept until delivered or disposed of as hereinafter provided. The clerk of the court shall receive and keep the will, and give a certificate of deposit for it.

2. Every will intended to be deposited shall be sealed in an appropriate manner approved by the circuit court, en banc, subject to administrative rules of the supreme court, which shall have endorsed thereon "Will of", followed by the name of the testator. The clerk of the court shall endorse thereon the day when, and the person by whom, it was delivered. The wrapper may also be endorsed with the name of the person to whom the will is to be delivered after the death of the testator. It shall not be opened or read until delivered to a person entitled to receive it, or otherwise disposed of as hereinafter provided.

3. During the lifetime of the testator, the will shall be delivered only to such testator, or to some person authorized by such testator by an order in writing duly proved by the oath of a subscribing witness. After the testator's death, the clerk shall notify the person named in the endorsement on the wrapper of the will, if there is a person so named, and deliver it to such person.

4. If the will is not delivered to a person named in the endorsement on the wrapper, it shall be publicly opened in the court within thirty days after notice of the testator's death, and be retained by the court until offered for probate. Notice shall be given to the executor named therein and to such other persons as the court may designate. If the proper venue is in another court, the will shall be transmitted to such court; but before such transmission a true copy thereof shall be made and retained in the court in which the will was deposited.

(L. 1955 p. 385 280, A.L. 1978 H.B. 1634, A.L. 1996 S.B. 869)

Effective 7-1-97

CROSS REFERENCE:

Fees required by probate division for deposit of will with the court prior to death of testator for safekeeping, 488.1010.



Construction of will.

474.520. The court in which a will is probated shall have jurisdiction to construe it at any time during the administration. Such construction may be made on the petition of the executor or administrator or of any other person interested in the will; or, if a construction of the will is necessary to the determination of an issue properly before the court, the court may construe the will in connection with the determination of such issue. When a petition for the construction of a will is filed, notice of the hearing thereon shall be given to interested persons.

(L. 1955 p. 385 281)



Wills heretofore probated, effect--evidence.

474.530. All wills heretofore proved and admitted to probate, not afterward rejected by the court, the records of the court not showing approval of such acceptance and probate during a regular session by the court, and which have been spread upon the records of said court for ten years, have the same force and effect and shall be received as evidence in all the courts of this state, as though properly approved and probate confirmed at a regular session of the court.

(RSMo 1939 530, A.L. 1955 p. 385 282, A.L. 1978 H.B. 1634)

Prior revision: 1929 529

Effective 1-2-79

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