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Is It Always Necessary to Probate a Will

Is It Always Necessary to Probate a Will

After the death of a loved one, navigating probate issues can sometimes feel daunting. What happens now? What is the next step? Do I need to “probate the Will, and how do I do so”? Sometimes the answers are a simple “yes” or “no”, sometimes the answers are more nuanced or complex. Hence, in this article we discuss the circumstances in which “probating a Will” is necessary, or even required, as well as the implications if it doesn’t occur, and the integral role of a legal advisor in this process.


Understanding Wills and Probate

Navigating the world of estate planning and probate begins with a basic understanding of such key terms such as a “Estate Planning”, “Will”, “Probate”, and “Estate Administration”, and the roles each one plays in an overall process.

Estate Planning refers to the general process that one typically goes through when planning out their own estate matters, while they are still alive. There are many tools that are often utilized in Estate Planning, which may include Wills, Trusts, Powers of AttorneyHealth Care Directives, and Payable on Death (P.O.D) or Transfer on Death (T.O.D.) designations, or joint titling of assets. An expert Estate Planning attorney will know the pros, cons, and nuances of each of these tools, and when to best use them.

Last Will and Testament (a “Will”) is a legal document that articulates an individual’s final wishes for the disposition of their assets after their death. This can include everything from financial assets and real estate property to personal possessions and care provisions for minor children. A well-drafted Will is a blueprint that guides the distribution of a person’s estate, ensuring their last wishes are accurately met. In Missouri, a Will can only be given effect in a Missouri Probate Court; if a Will is not admitted into evidence in Probate Court, and a Probate Case Filed, then the Will would accomplish nothing. A Will does not avoid probate, but the opposite – Probate Court is the only place a Will can be utilized.

Probate is the legal Court process that sometimes commences after an individual’s death. Once a probate case has been formally opened in Probate Court, it is often referred to as a “Probate Estate”, an “Estate”, or an “Estate Administration”. If the decedent had a Will, it be admitted into evidence in Court. If constructed and executed correctly, and proven to be the Will of the decedent, it be accepted as a valid public document and considered to be the one, true, and only Last Will and Testament of the deceased.

This process includes authenticating the deceased’s Will, appointing a Personal Representative, identifying, inventorying, and appraising the decedent’s property, paying off debts and taxes, and eventually distributing the remaining property as the decedent’s Will (or state law, if there’s no Will) directs. Probate ensures a systematic transfer of a decedent’s assets.

The Personal Representative of the estate plays a pivotal role in the probate process, ensuring that the probate process runs smoothly while complying with legal protocols.

Some of these responsibilities may include locating and securing both probate and non-probate assets, obtaining date of death values and appraisals of all the decedent’s property, preparing and filing the necessary documents with the Court, paying estate debt to rightful creditors, collecting receivables, dealing with various third parties including the Attorney, and much more.


Situations When Probating a Will is Necessary

In general, Missouri Law requires any person that is holding the Will of a recently deceased person to place the Will with the appropriate County Court. So our general recommendation is to almost always admit the Will into evidence with the Probate Court. Admitting the Will must be done within one year after the Decedent’s date of death. If no Will is admitted within one year, the Will becomes void and unusable.  Admitting the Will into evidence does not start a probate Case, but simply preserves one’s ability to start a probate case based upon that Will. To say it another way, you can admit the Will into evidence without actually starting a probate case.

Once the Decedent’s Will is admitted into Probate Court evidence, the decision whether or not  to open a probate case is very specific to each individual case. Is probate even necessary? Are there any assets to probate?


When Probate is Necessary?

The main questions when determining whether or not to open a probate estate are as follows:

  • Does the Decedent have any asset (having an account number, title, deed, or high monetary value) that is still titled into the Decedent’s name only?
  • Does any such asset have NO beneficiary designation on it?

If the answer is “YES” to BOTH QUESTIONS, then opening a probate case of some kind will likely be required. Examples might include such situations as:

  • Real Property: The Decedent owned real estate that is still titled into their name only, and no “Beneficiary Deed” was recorded with the County Recorder’s office.
  • Financial Accounts, Bank Accounts, Stocks, Bonds, Mutual Funds, Retirement Accounts: The Decedent owned financial accounts in their name only, with no co-owners, and did not have a Payable On Death (P.O.D.) designation on the account.
  • Vehicles: The Decedent owned a vehicle, with no co-owners, and did not have a Transfer On Death designation on the vehicle title.
  • Significant Assets: The Decedent owned other assets, not fitting the categories above, that are currently “stuck” in the name of the Decedent, having no co-owner or beneficiary designation.
  • Checks Payable to Decedent: There are uncashed / undeposited checks made out to the Decedent, or to “The Estate of Decedent”.
  • Outstanding Debts or Taxes: Very rarely will an Estate be opened because there is debt.  However, if an estate is opened because of assets, as described above, probate can help settle these debts using the estate assets.

Each state has its own laws governing the probate process. Many states have simplified processes or alternatives for smaller estates, or for certain types of estates or assets. States also generally have their own laws regarding intestate succession, i.e. what happens to a decedent’s assets if they die without a Will.


Probate When There is a Will

When people die with a Will, they are said to have died “Testate”. Probating a Will involves a series of legal steps to ensure the valid and equitable distribution of a deceased person’s estate. The probate process is initiated when an individual dies, leaving a Will behind. This does not happen automatically, but usually happens when an heir, beneficiary, or someone with a legal interest in the assets of the Decedent petitions the Court to open a probate estate. 

When there is a Will, probate will commence with the admission of the Will into evidence in Probate Court, and a determination that the Will was validly done, and is indeed the Last Will and Testament of the decedent. A Personal Representative, usually the person nominated in the Will, is appointed as such, and will then take inventory of the decedent’s assets, appraise the assets to determine value, and report to the Court.

Some assets will be liquidated or sold, such as real estate, for example. An estate bank account will often be opened, and all of the proceeds from the various liquidation of assets will be placed into the estate account. Liabilities such as outstanding debts and taxes are sometimes paid from the estate account. Once all liabilities are settled, the Personal Representative and Attorney will generally be paid, the remaining assets are distributed to the heirs as per the directives of the Will. The Court supervises the entire process, ensuring fairness and adherence to the deceased’s wishes.


Probate When There is NOT a Will

When people die without a Will, they are said to have died “Intestate.” In such a scenario, a probate case can be opened, and the the state’s intestate succession laws guide the distribution of assets. Rather than following the deceased’s preferences, these laws usually distribute assets among the closest relatives, like the spouse and children, or if none, parents, siblings, aunts, uncles, nieces, and nephews, etc. The laws are very specific and govern exactly who will be considered an “Heir” of the decedent’s estate, and in what proportions.

Otherwise, probate without a Will is essentially the same as probate with a Will. A Personal Representative is appointed, assets collected and liquidated, proceeds gathered, and distributed to the heirs.


The Downsides of Probate

Probate is not a choice. Either the Decedent died owning assets that are still “stuck” in their own name, or they didn’t. If the Decedent still has assets titled into their own name, after their own death, with no co-owners, and no beneficiary designations on the assets, probate will be necessary.

While the probate process is designed to ensure a person’s estate’s fair and legal distribution, it comes with several challenges and potential disadvantages.

  • Time-Consuming: The probate process can be lengthy, often taking anywhere from several months to a year or even longer in complex cases. This duration can extend further if there are disputes about the Will or the estate.
  • Costly: probate can be expensive. The costs generally include Court fees, Personal Representative fees, attorney’s fees, appraisal costs, and other administrative expenses.
  • Public Nature: The probate process is a matter of public record. This means that the estate’s value, the beneficiaries’ identity, and other details become publicly accessible.
  • Court Supervision: Having the Court oversee every step is a disadvantage to some, as it could lead to a lack of flexibility and delay in decision-making.  However, to be fair, having a Court overseeing the process can also ensure that the process is fair, correct, and accurate.

These drawbacks highlight why some individuals opt for estate planning strategies that avoid probate, such as creating living trusts, or utilizing non-probate transfers such as POD, TOD, or beneficiary designations. However, the decision whether to avoid probate depends on an individual’s specific circumstances, including how much work they want to put into it during their lifetime, the size and complexity of their estate, their privacy preferences, and the potential for family conflicts. It’s wise to consult a professional estate planning attorney to decide on what tools can best be utilized, and how.


The Role of a Legal Advisor in the Probate Process

Probate involves intricate legal procedures and terms that may be challenging to understand for a layperson. An experienced legal advisor can provide the necessary guidance, helping understand the Will, estate laws, and probate process. They can also assist the Personal Representative in fulfilling the duties like distributing assets, paying off debts, and settling disputes among beneficiaries.

In a typical probate administration, Missouri Law requires the use of an attorney, who can represent the estate in Court proceedings, ensure the deceased’s wishes are upheld, and adhere to legal protocols.

With a team of experienced attorneys, The Piatchek Law Firm, LLC, has a vast understanding of the probate process, and they can help navigate this complex legal terrain. We offer comprehensive probate services, including interpreting the terms of the Will, assisting Personal Representatives in fulfilling their duties, and ensuring a smooth and lawful distribution of assets. We can also minimize the potential downsides of probate by providing timely and efficient execution of the process.


Can Probate Be Avoided?

Yes, probate can be avoided. However, one must choose to avoid probate while still alive, during their own lifetime, and take appropriate action. The surviving heirs of a loved one cannot just decide to avoid probate; otherwise wouldn’t everyone choose to avoid it? Probate is necessary when a person dies owning assets, in their name only, with no beneficiaries designated.

However, this means that probate can be avoided by a person structuring their assets, ownership, and beneficiary designations correctly during their own lifetime, such as through joint ownership, payable-on-death designations, or living trusts.

Despite these options, navigating the probate process or planning an estate to avoid it can take a lot of work. This is where the role of competent legal counsel comes in. A skilled attorney can guide the executor or beneficiaries through the intricacies of the probate process, handle any disputes, and ensure that the deceased’s wishes are carried out most efficiently.

It’s essential to plan before it’s too late. With professional advice and proactive planning, you can ensure your assets avoid probate, are distributed according to your wishes, and provide peace of mind for your loved ones. If probate is necessary, our attorneys can make sure the process brings as little complication or difficulty as possible. Contact Piatchek Law Firm today to schedule a consultation and take the first step towards a seamless estate planning or probate process.


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