What seniors should know about probate
“Where there’s a Will, there are 500 relatives” is a humorous take on the less desirable probate outcome for many Americans. But probate itself is not your enemy. Sometimes it can be a benefit. For example, the following instances often benefit from a court administering a decedent’s estate in probate: (1) family members and other beneficiaries are experiencing hostility; (2) if the parties want to ensure that all assets are administered and distributed efficiently; (3) if disagreements on important provisions in a Will arise and the parties fear they may not be properly resolved without judicial interpretation; and (4) the cost and ease of administration of probate may be less than the cost and administration of a complex trust or other estate plan.
Probate is the legal process for administering a decedent’s estate and distributing its assets. The probate process occurs after the decedent dies. There are several steps to the probate process: (1) the decedent’s Will must be validated for authenticity; (2) the decedent’s estate property is inventoried; (3) the decedent’s estate property is appraised or valued; (4) the decedent’s estate debts and taxes are identified, prioritized and paid according to priority; (5) the decedent’s estate property is either sold or identified for distribution; and (6) the decedent’s estate property is distributed according to the text of the decedent’s Will. If there is no existing Will, the property will be distributed according to Missouri’s statutory distribution authority or intestate succession statutes.
Many of our clients ask if probate is required to transfer property at death. The answer is yes, unless the decedent took steps to avoid probate during his or her lifetime. For illustration, let’s consider Joe and Bill, two men who recently died in Cole County, Missouri. For purposes of this illustration, let’s say they each was single and owned one home and the contents therein. Each also had one checking account and one vehicle. Their homes and their vehicles were paid for in full.
But Joe was a planner and took steps along with his attorney to avoid probate while Bill did not. Joe executed and filed a Beneficiary Deed with the local recorder of deeds, so his real property avoided probate. Joe also made sure his vehicle title included a Transfer on Death beneficiary. Finally, Joe made sure he included a Payable on Death beneficiary for his checking account. In summary, Joe’s loved ones were able to avoid probate on his home, his vehicle and his checking account because Joe took the time to establish non-probate transfers for each. Conversely, Bill failed to take such measures and his home, vehicle and checking account were each part of his probate estate.
How does probate work? Once the court appoints a personal representative (formerly known as executor or executrix), the decedent’s property is normally managed by the personal representative until the probate process ends. The personal representative makes final distribution of the estate, whether it be property or funds, when the probate court approves all creditor payments, payments of expenses, and a proposed distribution schedule is filed.
Probate is not swift. Instead, the soonest a probate estate may close is approximately six (6) months and ten (10) days after the date of first publica¬tion of the legal notice that the estate was opened. To that end, we tell most clients, it often takes one year or more to finish the probate estate administration.
The following are steps in probate administration: (1) hire an attorney to represent you – Missouri requires all estates to include legal representation; (2) apply for Letters Testamentary if a Will exists (or apply for Letters of Administration if no Will exists); (3) publish notice of the estate’s existence to known creditors – the date of first publication begins a six-month period for claimants to file their claims with the court alleging the decedent owed them money; (4) file an inventory and appraisal of the decedent’s assets with the court; (5) sell property if funds are required to pay expenses and creditor claims; (6) pay all debts, claims, taxes, and expenses; (7) prepare a settlement that accurately records all income and expenses of the estate during administration; (8) seek court approval of a proposed distribution schedule; and (9) close the estate.
Probate isn’t always your enemy. Sometimes it can be an asset when circumstances arise that require court administration of a decedent’s estate. The process is not swift, but it is often fair, just, and transparent. If you have further questions about the process, feel free to call our firm or any other reputable probate attorney in your area.
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 and represents civil, criminal, business and governmental clients. He has been recognized by the Missouri Bar for his contributions to educate Missouri lawyers and in 2016, he received the prestigious Adviser of the Year award by GolfInc magazine. 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, LinkedIn, and Twitter.