When a person dies leaving a Will, usually the person who is in possession of the decedent’s Will files it with the probate court. Missouri law requires anyone who is in possession of a deceased person’s last will and testament to deliver that Will to the local Probate Court. There is also a Missouri law that requires that a Will must be admitted into evidence in the Probate Court within one year from the decedent’s date of death. Therefore, we recommend anyone holding a Will for a deceased person contact us immediately to go about filing it with the Court.
There are Missouri laws governing who is allowed to become the personal representative. If there is a Will, the person named as Personal Representative does not automatically get appointed, the nominee must still petition the Court to be appointed as Personal Representative. If there is no Will, then it is uncertain who will be named as Personal Representative (also called an “Executor”), Missouri law only allows certain persons to serve.
What does probate mean?
Probate is what is required when a person dies owning an asset that is “stuck” only in the name of the deceased, after they have already died, and there is no beneficiary named on that asset. Probate is public, can take a long time, and can be expensive.
During the probate case, there will be many items that will need to be done by the probate Court and the Personal Representative, such as:
- Verifying that the will is valid.
- Running publication in the paper.
- Locating, marshalling, and liquidating assets.
- Settling all debts that the person still had.
- Providing an accounting to the Court and all heirs.
- Then distributing the assets that are left — both money and property — to the beneficiaries who are named in the Will; or if no Will exists, to the heirs under Missouri law.
- Many other items during the case.
After that, the estate can be closed.
Probate often takes quite a bit of time, money, and attention. The process includes numerous forms, notice requirements, and filing rules. Not surprisingly, there can be delays when the probate court’s procedures aren’t followed meticulously. Helpfully, there is a streamlined form of probate for “small estates” in Missouri (Estates worth $40,000 or less). In these cases, a small estate affidavitcan be filed with the court without opening a full probate estate in probate Court. Our affordable probate attorneys can help with small probate estates.
What if a Will is not Filed with the Probate Court?
Under Missouri’s Trust and Estate Law and Probate Code, no one is forced to be the executor, one must voluntarily agree to serve. That said, the original, signed Last Will and Testament will need to be filed with the probate court in the county where the deceased lived. For example, in Springfield, MO, or Republic, Mo, this would be the Greene County Probate Court.
A full probate administration must generally be opened within one year from the decedent’s date of death. Also, a Will must be filed within one year from the decedent’s date of death.
If the Will is not filed with the Probate Court within the required one year period, the Will becomes invalid – it is no longer any good. The Will essentially “expires”.
What Happens if No Probate Case is Opened?
If there are assets or property “stuck” titled into the name of the decedent , and there was no co-owner, and there was no assigned beneficiary on such assets, the items will continue being owned by a dead person, and nothing can legally be done with them until this problem is corrected (by probate Court). This can cause many problems, such as:
- Real Estate Problems. Many problems can arise if real estate does not go through probate:
- if real estate remains stuck in the name of a dead person, and there is a mortgage on the property, the mortgage company could foreclose.
- If no one pays the real estate taxes, the county may foreclose after three years.
- Real estate can fall into disrepair, be broken into or vandalized, or even fall subject to “squatters” illegally residing on the property.
- The property cannot be sold until a living person legally owns it by putting into probate, and it is not advisable to sink money into a property that you do not legally own that has not been probated.
- Title Problems. If a home, car, or financial account continues to be “stuck” in the name of a dead person, it will generally be frozen and simply just sit there until someone puts the item through probate.
- Creditor Problems. If no one opens an estate, a creditor may be able to force open an estate.
- Account and Policy Problems. Insurance Policies and financial accounts can become hard to locate as companies merge with other companies, or go out of business, and so on.
- Unclaimed Funds Division. If property sits “stuck” in the name of a dead person long enough, it may be remitted to the “unclaimed funds” division of the State of Missouri. If you someday want to get the assets back from the State, you will have to open a probate at that time, which may likely be more complicated due to the passage of time.
How can a probate attorney help?
Probate can be a daunting process. Questions surrounding a Will become especially difficult in times of grief, stress, and confusion. An experienced probate attorney can help immensely when family dynamics or property considerations are complicated. Wills can be contested, and a probate attorney can represent the Personal Representative, heir(s), or other parties to ensure fair treatment. A probate attorney can also help individuals, couples and families plan ahead for the probate process. Professional advice can mean substantial money savings and smoother property transfers.
If you have questions about this issue, a probate attorney in Springfield, MO can help you understand the legal risks and the best path forward.
Learn how an our probate attorney can guide you through the process. Joseph Piatchek is an experienced and caring probate attorney in Springfield ,Missouri who brings broad experience in probate estates of all sizes, small estates to large estates, with an emphasis on exceptional service, and a special ability to explain complicated matters in simple, clear terms. Contact us by phone, email, or through our website if you would like to set up your initial consultation.
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