FAQs About the Missouri Probate Process
Nov. 2, 2022
The topic of probate – the court-supervised process of settling a person’s estate after they have passed away – comes into focus on two occasions. These two occasions are when you start creating an estate plan to take care of your loved ones after you’re gone, and when you’re an heir to someone who just passed away, and you have to await probate proceedings to receive what is due you from their estate.
Probate is a legal process to satisfy creditors and transfer assets to designated beneficiaries when a person executes a last will and testament, commonly referred to as a will. Probate is also mandated when a person dies without a will – called dying intestate. With no will, the state’s law of intestate succession determines who gets what.
There is a way to avoid probate, however, and that is through putting one’s assets in a living trust. Once you transfer your assets, they technically belong to the beneficiaries you name in the trust document, but you get to manage those assets so long as you are alive and capable of doing so. If you become incapacitated or pass away, the successor trustee you name will take over and, if you’ve died, complete the distribution and pay all debts.
A trust takes effect immediately, but a will does not become effective until the will-grantor passes away and the person named the representative in the will presents the document to the probate court. When they do that, the court names that person as the executor of the estate to administer the probate process.
If you have questions about probate or are ready to begin your personal estate planning through a will or living trust in or around Columbia, Missouri, feel free to reach out to me.
I have more than three decades of experience in helping individuals and families create comprehensive estate plans and direct them through the probate process after the loss of a loved one. I proudly serve clients in Jefferson City, Fulton, Boonville, and Columbia, Missouri.
FAQs About the Probate Process in Missouri
I’ve compiled some of the most common questions clients have about the probate process in Missouri, and below I provide some brief answers to those very questions. For further clarification, please schedule a consultation, and let’s discuss your current situation.
If a Person Creates a Will With Clear Instructions on Who Gets What, Does the Will Have to Go Through Probate?
As briefly mentioned above, a will becomes valid only upon the death of the grantor. The personal representative named in the will is tasked with bringing the will to the probate court located where the decedent passed away. The court will examine the document and the death certificate and name the personal representative as the executor of the decedent’s estate.
The court will then supervise the executor as the person carries out the administration of the will.
What Is the Role of the Personal Representative In the Probate Process?
The personal representative named in the will, who becomes the executor of the estate once the will is introduced in court, will be tasked with handling all aspects of administering the estate. This includes collecting all assets, opening a bank account to deposit cash assets or cash from the sale of assets, notifying and paying off creditors, filing a final tax return and paying any taxes due, and finally distributing the designated assets to named beneficiaries.
The personal representative/executor must also file detailed reports and submit financial accountings to the supervising probate judge.
What Happens If Someone Dies Without a Will or Trust?
If a person dies intestate – without a will or other legal estate planning document – the state will determine how the person’s assets are distributed. This is done by the probate court using the state’s law of intestate succession. Under intestate succession, the surviving spouse – if there is one – and children stand to inherit most if not all of the decedent’s estate. The line of succession can get complicated after that, and even parents and siblings can stand to inherit assets in certain circumstances.
What Happens If an Estate Is Small? Does It Still Have to Go Through Probate?
In most cases, with or without a will (unless there is a trust in place), all estates must go through probate. However, if the entire estate is worth less than $40,000, the probate court may authorize the executor to distribute the assets without jumping through all the normal legal hoops of full-scale probate. This will require the purchase of a bond in the amount of the estate’s assets and a detailed written request to the court.
There are also various vehicles to avoid probate, including but not limited to the creation of a living trust. You can establish joint accounts with the right of survivorship or create payable-on-death (POD) or transfer-on-death (TOD) designations for certain assets. This is where an estate planning/probate attorney proves invaluable.
Can the Terms of a Will Be Challenged?
Beneficiaries and eligible beneficiaries, upon learning of the terms of a last will and testament, may feel they have been cheated or even left out entirely. They might then challenge the validity of the will in court, but to do so they must have legal standing. This means they must be named in the will or are a potential beneficiary under the laws of intestate succession. Close friends and associates would not have such legal standing.
Grounds for a challenge include alleging the grantor lacked the legal or mental capacity to authorize the will or that someone exerted undue influence in the process of writing the will.
How Can an Attorney Help With the Probate Process?
An attorney can help avoid the need for probate through the creation of a living trust, which is administered outside of probate court supervision. An experienced estate planning/probate attorney is also essential during probate administration when issues with the executor arise or when legal challenges by creditors or heirs are brought forth.
The duties and responsibilities of an executor can be complex and challenging, and to successfully navigate the probate process, the assistance of an attorney is often essential.
Personalized Legal Counsel
The bottom line is that probate can be avoided. Probate takes time and often leaves the executor and beneficiaries anxious and frustrated. When planning for what happens when you’re no longer with us, consider the impact that probate can have on your loved ones.
Additionally, if you’re a beneficiary of an estate undergoing probate or you’re the executor, you will no doubt have many questions and concerns that only a knowledgeable probate/estate planning attorney can address adequately.
For all your estate planning and probate questions and concerns in or around Columbia, Missouri, contact me, David A. Walker Attorney At Law.