There are several different methods of probate in Missouri, depending on the size and type of assets involved. If a Personal Representative is to be appointed, it is called a "regular" or "typical" probate administration. Other methods, sometimes collectively referred to as "dispensing with administration," include small estates, refusal of letters, determination of heirship, and the Deed of Heirship.
If you are looking for a probate attorney in Missouri, it is crucial that you find someone experienced who understands the Probate Court process. The Piatchek Law Firm is located in Springfield, Missouri, and our knowledgeable attorneys assist with probate cases in counties throughout Missouri. We would be happy to assist you with the probate process, and we have put together the following information to help you understand the various types of probate cases and how probate works. Especially if the case is relatively cooperative or uncontested, few Court appearances (if any) will be required.
When Is Probate Required?
Probate is a "necessary evil" that is required in one limited circumstance: when a person dies with assets still legally titled in their own name. In other words, probate is necessary when assets are "stuck" in the name of a dead person. When someone dies owning assets in their name only, the assets will stay stuck that way unless someone takes action. Probate is the process of getting these assets "unstuck" – out of the name of the deceased individual and titled into the name of that person's living heirs.
Does a Will Avoid Probate?
There is a popular misconception that creating a Will allows you to avoid the probate process altogether. This is simply not true. A Will gives the creator the option to select who will be in charge of their estate (the "Personal Representative" or "executor") and who their beneficiaries will be. The creator can also state who they would like to be the guardian of their minor children, provide special burial instructions, and much more. But a Will does not avoid probate. Instead, a Will directs the probate process. If you would like to learn how to avoid probate altogether, please call our office to set up a consultation.
What Are the Different Types of Probate Estates?
There are several different methods of probate in Missouri, depending on the size and type of assets involved. Below you will find very brief descriptions of some of the probate methods available.
Typical Probate Estate Administration
Under Missouri probate law, if a Personal Representative is to be appointed, it is called a "regular" or "typical" probate administration. You generally have one year from the date of death to begin a typical probate administration. A typical probate estate is usually more than $40,000. This method can also be used if the estate is under $40,000, though it is usually not the preferred method. For more information on regular probate administration in Missouri, please see our page "Typical Probate Administration."
Supervised Administration vs. Independent Administration
Administration can be "court-supervised" or "independent." Supervised administration means that Court approval will be required for just about any action taken by the Personal Representative. This can lessen the liability of the Personal Representative, because the judge will approve everything along the way. Independent administration means that you and your attorney will receive less supervision. However, because the judge doesn't approve every action of the Personal Representative, the Personal Representative is more likely to be held responsible for any actions taken while serving that role.
For this reason, we generally recommend Supervised Administration in most instances, and clients generally choose Supervised Administration.
Methods That Dispense With Administration
Many estates use a normal probate administration, as described above, meaning a Personal Representative is appointed to be in charge of the probate estate. In other methods of probate, however, no Personal Representative is appointed. These methods are sometimes collectively referred to as "dispensing with administration," and they include the following:
Small Estates
According to Missouri probate law, if a decedent has less than $40,000 of net assets that need to go through probate, an attorney may select the "small estate" method of probate, which is a simpler process than a "typical probate administration." For more information on small estates, please see our page "Small Estates."
Refusal of Letters in Favor of Spouse, Unmarried Minor Children, or Creditors
As specified in Missouri law, if the decedent is survived by a spouse, unmarried minor children, or even by creditor(s), the applicable surviving parties may ask the Probate Court to not appoint a Personal Representative and instead award property to any such parties. For more information on probate refusals in Missouri, see our page "Refusal of Letters of Administration."
Determination of Heirship
What if it has been more than one year since the date of the decedent's death? If a Personal Representative cannot be appointed because it has been more than one year since the date of death, Missouri probate law authorizes an attorney to petition the Probate Court to formally and officially determine the rightful and legal heirs of the decedent. For more information on this method of probate, please see our page "Petition for Determination of Heirship."
Affidavit of Heirship / Deed of Heirship
If you could otherwise use the "determination of heirship" proceeding above, but the only asset being dealt with is real estate, there is an exception that may allow you to avoid probate for that real estate only. This method is often called an "affidavit of heirship," but the document we prepare is a Deed of Heirship: an affidavit alone does not transfer title to the property. To use this exception and avoid Probate Court, you will have to be able to locate and name all potential heirs. It works best if all heirs and their spouses are cooperative in the creation of the document. The Deed of Heirship is one of the only probate avoidance techniques that can be accomplished after someone has already passed away. Please see our webpage entitled "Affidavit of Heirship" for more detailed information on this method of probate avoidance.
How Do the Types of Probate Compare?
| Method | Personal Representative Appointed? | Generally Used When |
|---|---|---|
| Typical (Regular) Probate Administration | Yes | The estate is usually more than $40,000; generally begun within one year from the date of death |
| Small Estate | No | Less than $40,000 of net assets need to go through probate |
| Refusal of Letters | No | The decedent is survived by a spouse, unmarried minor children, or creditors |
| Determination of Heirship | No | It has been more than one year since the date of death |
| Deed of Heirship ("affidavit of heirship") | No – avoids Probate Court for the real estate | The only asset is real estate, and all heirs and their spouses are cooperative and willing to sign |
What Do These Options Cost?
Small estates, refusals of letters, determinations of heirship, and Deeds of Heirship can often be done on a flat fee. A full probate administration is generally billed at the greater of the statutory minimum compensation or our hourly fee. If you are interested, request a free quote.
Call our office today at 417-882-5858 or send us an e-mail to schedule an appointment with one of our attorneys to further discuss your specific probate questions and concerns.
