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Common Misconceptions About Probate

David W. Walker Attorney At Law Nov. 30, 2023

Probate sign, stack of papers and gavelWhen a person passes away, their estate—assets that they have accumulated in their name—becomes subject to distribution to heirs and others either through a will or trust, or in the absence of one of those legal instruments, through the law of intestate succession. Intestate means the person died without a legal document naming beneficiaries. 

If there is a will (or no will), then the decedent’s estate will have to go through a legal process called probate. If a trust has been set up, then the assets included in the trust will generally avoid probate. Otherwise, heirs and beneficiaries will have to wait out probate proceedings before they can receive their benefits.  

Depending on the size of the estate, and contingent upon any creditor or would-be beneficiary filing a legal challenge, probate can take months or more, but generally, the process should resolve itself in the fairly short order of several months. Nonetheless, probate can be a trying experience for those on the receiving end or for those who are tasked with administering the process as the executor of the estate. 

If you have questions or concerns about the probate process, contact me, David W. Walker Attorney at Law in Columbia, Missouri. I have more than three decades of experience in estate planning and probate administration and can help you throughout the process, whether as a beneficiary or as an executor named in a will or by a probate court. In addition to Columbia, I also proudly serve clients in Jefferson City, Fulton, and Boonville. 

Common Misconceptions About the Probate Process 

It is not uncommon for heirs and beneficiaries to have misconceptions and misunderstandings about how probate works. Any estate with or without a will is subject to probate administration. For the most part, probate is designed to make sure that all debts, taxes, and other legal obligations are taken care of before beneficiaries can receive what was deemed for them or what is due to them under the laws of intestate succession (dying without a will). Some of these misconceptions include: 

If I have a will, my estate will not have to go through probate.  

Yes, it will. A last will and testament only becomes legal when the creator of it passes away. Before that, it had no legal standing. The personal representative named in the will must present a death certificate along with a copy of the will to a local court to begin probate proceedings. As mentioned above, probate is designed to clear all financial obligations before heirs and beneficiaries can receive what is due to them under terms of the will or under the laws of intestate succession. 

Probate means the state will get all my assets.  

Not true. Even if you leave no last will and testament, the state of Missouri has in place laws of intestate succession to determine who gets what from a decedent’s estate. The formula can get a bit tricky, but if you die with only a spouse surviving you, the spouse inherits everything. If you die with only surviving children, they inherit everything. If there is a spouse and surviving children, the spouse gets the first $20,000 in assets plus one-half of everything else, and the children get the rest. 

The probate process takes years to complete.  

This is generally not true unless the estate is so vast and convoluted that it takes the court system that long to sort things out. The caveat, however, is that creditors have up to six months to file a claim against the estate, which can drag out the process, so in some circumstances, probate can take a year or more, but in smaller estates, this is not usually the case. 

Estate taxes will consume most of my inheritance.  

There is no estate tax in Missouri, and the federal estate tax exemption currently stands at $12.92 million, which can be doubled for married individuals.  

I don’t need an attorney to go through the probate process.  

Probate can be complex and confusing, especially if creditors or would-be heirs and beneficiaries file legal challenges. The guidance of an experienced probate attorney is always vital for the questions and concerns that arise, especially if you're the executor of the estate, but also even if you are a beneficiary wondering what’s going on. You don’t want to be in the dark while the process is taking place. Seek out qualified legal guidance

Enlist Strong Legal Advice 

If you as an heir or beneficiary, or an executor of the estate, have questions or concerns about the probate process in or around Columbia, Missouri, reach out to me at David W. Walker Attorney at Law. I will guide you through the entire probate process and address all your issues so you can feel comfortable with everything that’s transpiring.