Probate Law Overview

Probate Attorney in Springfield, MO

At the Piatchek Law Firm, attorney Joseph J. Piatchek is available to answer questions and guide clients through the probate process. Our experienced lawyers can help your family through the probate process in many county probate Courts throughout Missouri.

What Is Probate?

Probate law can be very complicated. A good place to start is to review what probate is and when it is required.

Probate is required when someone passes away, and there is still property titled only in the name of the deceased person, and there is no beneficiary designation on the property. Essentially, when someone passes away, any property that is still titled in the deceased person’s name becomes “stuck” that way if it does not have a beneficiary designation. Probate is the process of getting the property “unstuck” (i.e., out of that deceased person’s name) and putting it into the name of  the rightful heirs or beneficiaries. If a descendant passes away without a will, Missouri state law determines who will be the deceased person’s heirs. If the descendant did have a last will and testament, the Will shall determine who the deceased person’s beneficiaries are.

The Probate Process

Our probate attorneys can assist you with the probate process by first determining which assets need to be probated, and then by determining which assets may avoid probate. Once our probate attorneys have helped you narrow down which property must be probated, then they will help you determine which one of several different Missouri probate methods should be utilized. 

Knowing when to use what type of probate method is an extremely important matter, and selecting the wrong method can lead to major delays and major unnecessary expense.   Your attorney should know the differences between the various methods of probate, so that they can tell you which method will be the most expedient and affordable in your case.  This decision will depend on the value and nature of the assets involved, as well as many other factors, and you can rely on our probate lawyers to always have your best interests in mind.  We will advise you on what your options are, roughly how much each option will cost, how long each option might take, and the different implications involved in each version of probate.

Below we have a very brief summary of several probate methods available.  For a more thorough discussion of any probate method, you can also click on the heading that is located at the beginning of each section, which will take you to an entirely separate page containing more detailed information on each topic.

Typical Probate Estate Administration

Whether the descendant left a Will or not, if assets are “stuck” in the descendant ‘s name, probate court will generally be required.  A typical probate administration usually starts within 12 months of the descendant’s death, and typically involves assets that are worth at least $40,000. If the descendant left a Last Will and Testament, it would need to be formally admitted into evidence within one year of the descendant ‘s date of death.  The hallmark of a typical probate administration, and what makes it special, is the appointment of a “Personal Representative” that steps into the shoes of the descendant, and handles all issues related to the estate. 

A Personal Representative is also sometimes referred to as an “Executor”.  If a Personal Representative is appointed pursuant to a Last Will and Testament, the Court will issue what is known as “Letters Testamentary”.  If there is no Will, the Court will appoint a Personal Representative in a document known as “Letters of Administration”.

An inventory detailing all estate assets must be filed, publication in the paper must be made, and creditors have a set time period to file claims.   There are many other things that can happen in a typical administration, and it can often last a year or more.

Small Estates ($40,000 or less)

 There is a different probate process used for what is known as a “small estate”. If an estate is worth no more than $40,000, the state of Missouri has unique rules and procedures that are designed to make the probate process more quick and efficient. Whereas, the probate process for a larger estate, which is an estate that is worth more than $40,000, can easily take 8 months to a year or longer, with Missouri’s rules and procedures for smaller estates, the entire probate process usually only takes from 4 to 8 weeks.  However, keep in mind there is no “executor” or “Personal Representative” under a small estate, which means that there are major limitations to what can be accomplished in probating a case in this way.

Refusal of Letters

If a descendant passes away under certain circumstances, the Probate Court can REFUSE to issue “Letters Testamentary” or “Letters of Administration” as described above. When the descendant was surviving by a spouse, minor children, other dependents, or the descendant’s creditors, such parties may be able to use the refusal of letters process to claim property. During the refusal of letters process, a probate court will not appoint a representative. With this process, the usual probate administration for an estate is bypassed, allowing the descendant’s assets to pass on to his or her surviving spouse, children, other dependent, or creditor, depending on many factors.  This can be a very quick and easy way to probate certain items, if the situation is right.

Determination of Heirship

Generally, if an estate that is worth more than $40,000 was not commenced in the probate court within 12 months after the individual’s death, an experienced probate attorney can file a determination of heirship with the court. The determination of heirship is used to remove the descendant’s name from the assets, even if these assets have been in his or her name for quite some time. This method of probate does not have an appointed Personal Representative.  Instead, a petition is filed identifying the known assets of the descendant, and identifying the known heirs. Following the hearing, the judge will decree who the descendant’s heirs are as well as details related to what the heirs will inherit.

Affidavit of Heirship / Deed of Heirship

While property that remains titled in the deceased person’s name almost always needs to be probated, nonetheless, there is an exception in the State of Missouri. This exception is only available in very specific circumstances, usually only when it has been one year since date of death, is ONLY real estate that needs to be “unstuck” from the descendant’s name, and usually only when all heirs and their spouses are cooperative and willing to sign off on documentation.   This process may be referred to interchangeably by several different terms, including “affidavit of heirship”, “heirship deed”, “deed by heirs”, “deed of heirship”, or other names. As long as all of the conditions are met (see our page on this topic) this may be a good option that does not involve probate Court at all, but is worth mentioning.

What Should I Expect from Probate?

Our probate attorneys find that one of the single greatest factors that goes into someone’s experience dealing with a probate court is the expectations held at the beginning of the probate case. Some clients have totally unrealistic expectations, which is understandable, because they have never been through it before. Other clients may have no expectations whatsoever; they simply have questions about how probate courts work. Generally, the more realistic your expectations, the less frustrating the process will be.

Put another way, if you get into a hurry during the probate process, you will likely be disappointed time and time again. The probate court is designed to be very deliberate and comprehensive. Therefore, probate often takes a good deal of time, especially if you are dealing with a “typical administration” filed within one year after date of death. Creditors are typically allowed time to file claims. Real estate and property must be gathered, valued, and sold. Claims by creditors of the estate must be paid. There are timelines and notice requirements under Missouri probate law, and the probate court needs time to carry out all these functions. All in all, probate is not a quick process – though there are some options available that can speed-up the process considerably.

Let us be clear – this is no excuse to take things slow. Our attorneys will be as expedient and diligent as possible. However, that being said, probate can be a long process, and we don’t ever want to hide or sugarcoat that fact. At the Piatchek Law Firm, we help people navigate probate court while attempting to minimize the delays and confusion often associated with the probate process. For help with your probate case, call us at 417-242-4775 or contact us to schedule a complimentary consultation.

Providing Quality, Compassionate Probate Services

Currently, all four of our attorneys are probate attorneys in one way or another. Attorney Joseph J. Piatchek regularly assist clients with all types of probate cases. We can also handle contested probate cases and probate litigation. We can explain Missouri’s probate laws, answer your questions, guide you through the process, and assist you with the orderly administration of probate estates. If you contact us, we would be happy to meet with you and guide you through each step, from the opening of the estate, to paying debts and distributing inheritances, to the closing of the estate.

Avoiding Probate

There are certain, very specific circumstances in which some items may be able to avoid probate even if someone passed away with assets titled into their own name, specifically with real estate. This is a rare exception. For more information on this, please see our page “Affidavit of Heirship.” For more information about avoiding probate generally, see our page “Probate Avoidance.”

Additionally, our firm can help you avoid probate by structuring your estate plan in advance. Revocable living trusts, POD, TOD, non-probate transfers, and even business entities are just some of the tools we utilize when completing the estate planning process to avoid probate. We can discuss other potential techniques if you are interested in the asset protection process for you and your family. And as always, remember that wills do not avoid probate!

Missouri Ancillary Probate Services

Under special circumstances, an ancillary probate may be required. This is a type of probate proceeding that is required in addition to the primary probate proceeding that will take place in your home state. If the descendant owned real estate located outside of his or her home state, or other personal property including a car, boat, or airplane, that is registered and titled outside of the home state, ancillary probate may be necessary. You may also need to consider ancillary probate services if you are concerned with mineral, oil, gas, or livestock rights associated with any real estate that the descendant owned outside the home state.  For more information, please visit our page on Ancillary Probate.

Our Probate Attorneys Make House Calls and Home Visits

Talk to a probate lawyer in Springfield, Missouri about your probate or estate administration concerns today. To speak with a Springfield, Missouri probate attorney, simply call our offices directly at 417-242-4015 or contact us online. We are happy to set an initial consultation to discuss your case, and may be available for evening and weekend appointments, as available. We can also arrange a home visit if you are unable to travel to our offices. We serve all Missouri Counties, including the Southwest Missouri, Ozark, Nixa, and Branson.