Missouri probate basics
Our firm regularly helps probate clients. Probate involves the legal process of settling the estate of a decedent. Missouri Circuit Courts are divided into 46 judicial districts; each with a special probate division. With or without a Will, probate includes the administration of assets owned by a decedent in their name only that would otherwise require the decedent’s personal involvement when selling or disposing of those assets (e.g., signing a deed or title). Those assets subject to a non-probate beneficiary designation such as “payable on death” or “transfer on death” are exempt from probate court.
If the decedent left no Will, assets will be distributed by the Probate Court to those heirs that are identified under Missouri’s intestacy laws. If the decedent left a Will, the Will typically nominates a Personal Representative (formerly known as an “Executor”), and identifies beneficiaries who will inherit the decedent’s assets. As a result, it is important to note that a Will does not avoid probate, but instead directs the process of probate administration.
When is probate required?
Probate is required when a person dies (decedent) owning property in his or her name only and the decedent failed to establish beneficiaries for the property prior to his/her death. Such property may include: (1) bank accounts or other financial accounts; (2) real estate; (3) partial ownership interests in real estate, if that real estate is jointly owned as tenants in common with no right of survivorship; (4) stocks or bonds; and (5) personal property owned solely by the decedent such as furniture, fixtures and equipment.
Probate is not required when the decedent established a non-probate transfer of his/her assets prior to death. Examples of assets that do not require probate are: (1) assets already in a trust; (2) real estate owned as joint tenants with the right of survivorship or as husband and wife; (3) the proceeds from a life insurance policy or retirement account where a beneficiary exists; (4) bank accounts with a “payable on death” designation; and (5) vehicles cars, RVs, boats, motors, trailers, or motor homes jointly owned or with a “transfer on death” designation.
What does the Missouri’s probate process look like?
Probate occurs pursuant to the terms set out in the Missouri Revised Statutes, Chapter 473 (Missouri Probate Code). If a full estate administration is necessary (there are enough assets at issue), the following steps occur: (1) Someone makes application to the court to become the “personal representative”, (2) the personal representative publishes notices in a local newspaper for the benefit of parties such as heirs and creditors, (3) the personal representative submits an inventory and appraisal of the decedent’s property with the court, (4) the personal representative pays all timely filed claims against the estate, (5) the personal representative distributes the net assets to designated heirs, and (6) the personal representative files an accounting with the court at least annually, and closes the estate.
How long does probate last?
It depends. Probate is not designed to be quick, but is designed to be deliberate and comprehensive. As a result, without an attorney, that process will likely be lengthy, confusing and emotional.
Missouri has a simplified procedure for smaller estates. The small estate process in Missouri may occur if the value of the entire estate, less liens and encumbrances, is $40,000 or less. There is a 30-day waiting period before final distribution may occur and a bond (an insurance policy that protects the estate) may be required. All debts owed to the state of Missouri, all funeral bills must also be addressed before such estates may close. A full estate administration ($40,001 or more) is a longer process, but generally speaking, it should take one year or less.
A person interested in serving as personal representative should look for an attorney with experience in the representation of personal representatives. The initial step is the appointment of a personal representative. In most cases, that person must file an inventory and appraisement detailing the decedent’s assets and then publish notice in a local newspaper. Pursuant to Missouri law, creditors have six months from the date of publication to file a claim against the estate and seek payment of their accounts. After the notice period concludes, a probate estate can be closed in approximately 60 days. Some factors that may cause a probate administration to last more than one year include: (1) Will contests (challenges to the terms or administration of a Will); and (2) tax issues; and (3) more complex estates with multiple heirs, creditors and large amounts; and (4) contested matters arising from the execution of the Will such as challenges to the capacity of the decedent to have signed and appreciated a Will.
What does probate cost?
Because several parties provide services in the process, probate does involve costs and fees. Those costs and fees fall into four primary categories:
1. Bond premiums. Courts often require a bond for the personal representative to guarantee their performance. This requirement can be waived by the court or by consent of the parties involved.
2. Publication. Most probate estates must publish notice in a local newspaper informing creditors, heirs and others that an estate has been opened.
3. Court costs. Every estate must pay costs to the court for its administration based upon the size of the estate.
4. Personal representative’s commission and attorney fees. Missouri law provides a minimum fee schedule for each, which is based upon the size of the estate. Compensation higher than these minimum amounts may be approved by the court or by consent of all heirs. The minimum fees are: (1) 5 percent of the first $5,000; (2) 4 percent of the next $20,000; (3) 3 percent of the next $75,000; (4) 2.75 percent of the next $300,000; (5) 2.5 percent of the next $600,000 and (6) 2 percent of everything more than one million.
Missouri probate administration is statutorily driven and can be complex if not addressed with experienced legal counsel. While the typical probate administration takes one year or less to conclude, there are extreme cases when it takes much longer to complete such as when heirs contest the amount of assets, their value and who should receive them. Our staff at the Law Office of Todd Miller, LLC in Jefferson City, Missouri is committed to helping clients complete probate administration in a stress-free manner. We welcome your call to discuss how we can help.
Todd Miller is a monthly contributor and regularly writes and speaks on various legal topic including 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. He has been recognized as 2016 Adviser of the Year by GolfInc; Golf Tax Consultant of the Year by Boardroom Magazine three times; and “10 Best” attorneys by the American Institute of Family Law Attorneys and “10 Best” attorneys by the American Institute of Criminal Law Attorneys. 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.