We often get questions about probate. It can be confusing, emotional, and can occur at a very difficult time in life. So, in this month’s article, we are answering some of the most frequently asked questions when it comes to probate
Probate is the legal process that becomes necessary when:
- A person dies;
- That person still has certain asset(s) (anything with an account number, title, or deed) titled into their name only; AND
- There is no beneficiary designated on any such asset(s).
When all of the above is true, an asset essentially becomes “stuck” in the name of a dead person, and that asset must be probated. This is true whether the decedent dies with or without a will.
If the decedent left no will, assets will be distributed by the Probate Court to those heirs that are identified under Missouri law. If the decedent does leave a Will, the Will typically nominates a Personal Representative (also called “Executor”), as well as identifies beneficiaries who will inherit the probate assets. Thus, a Will does NOT avoid Probate, but actually directs Probate, by overriding the Missouri Laws that would have applied if there had not been a Will.
What is Probate Court?
Missouri Circuit Courts are divided into 46 judicial districts. Within each court, there is a special Probate Division where all matters relating to probate are heard.
When is Probate Required?
As explained above, probate is required when a person dies, still has property titled into his or her name after death, and there is no beneficiary named on such property. This may include property such as:
- Bank accounts or other financial accounts in the decedent’s name only, if there is no co-owner or no beneficiary designation.
- Real estate owned solely in the name of the decedent, with no beneficiary designated under a Beneficiary Deed.
- Partial ownership interest in Real estate, if that real estaet is co-owned as tenants in common (with no right of survivorship).
- Stocks or bonds owned only in the name of the decedent, with no beneficiary named.
- Any tangible possessions owned solely by the decedent including clothing, jewelry, household furniture, and automobiles. However, being that such items have no account number, title, or deed, these items will usually only need to be probated if (1) other things are already being probated also, or (2) if there is disagreement regarding such property.
When is Probate Not Required?
Probate is not required unless there is at least one asset “stuck” in the name of the decedent only, with no beneficiaries being named on that asset. Specifically,, the following are not subject to probate:
- Property in a trust, since the owner of such property is not the decedent, but the Trustee of the Trust.
- Real estate owned as joint tenants with the right of survivorship or as husband and wife (legally called “tenancy by the entirety”).
- Life insurance policies or retirement accounts which have a designated beneficiary or beneficiaries.
- Bank accounts with a Payable on Death (POD) or Transfer on Death (TOD) designation, which go directly to the designated beneficiary.
- Cars, RVs, boats, motors, trailers, or motor homes with multiple names on the title, or with one owner (the decedent) who named a Transfer on Death (TOD) beneficiary on the title.
What is the Purpose of Probate?
Probate is a legal process of transferring property that is “stuck” titled into the name of a deceased person, into the name of the deceased person’s living heirs (without a will) or beneficiaries (under a Will). Probate is not designed to be quick, but is designed to be deliberate and comprehensive. Probate is also designed to prevent fraud by freezing the transfer of assets until a judge finds that the Will (if one exists) is valid; to ensure that creditors and named beneficiaries receive notification of the decedent’s death, and that the assets that are part of the estate are identified and appraised in order to determine the current value, and to make sure that the decedent’s heirs or beneficiaries receive the inheritance to which they are entitled.
How Does Probate Work in Missouri?
How probate in Missouri works is described in the Missouri Revised Statutes, Title XXXI, Chapter 473. There are several different ways that probate can work, depending on the size or complexity of the estate, when the decedent died, and several other factors. There are streamlined processes such as a “small estate”, or various types of “refusals” that are also available in certain circumstances that allow for a quicker, simpler version of probate. If a full estate administration is necessary, the following is a brief overview of the process:
- The person who desires to be in charge of the probate estate files an application with the Probate Court to act as the “personal representative” (also called “executor”) of the estate. When approved by the Probate Court, that person must comply with certain responsibilities established in the Missouri Probate Code.
- The personal representative must ensure that notices are either sent, or published in the paper, for the benefit of heirs, beneficiaries, and/or creditors. Additionally, he or she must also publish the opening of probate in a local newspaper in order to be sure all interested parties receive notification, particularly creditors.
- The personal representative must provide the court an inventory and appraisal of all property contained in the probate estate.
- The personal representative must make sure the property is kept safe.
- When the court closes probate, the personal representative is responsible for distributing the property.
- The personal representative must file an accounting with the court at least annually, and at the closing of the estate, verifying that debts and taxes have been paid and property has been appropriately distributed.
How Long Does Probate Take?
A person interested in serving as personal representative must first research attorneys, hire one, and that attorney would assist their client in getting appointed as personal representative, which can take some time. Once appointed, the personal representative must file an inventory and appraisement detailing what the probate assets are, and then publish notice in the paper. Under Missouri law, creditors have six months from the date of publication to file a claim against the estate. After the notice period is over, if all estate matters are otherwise concluded, the probate estate can be closed within about 60 days thereafter. Therefore, the full probate process takes longer than six months, but can often take a year or more. If creditors file a claim, real estate does not sell quickly, or there are any disputes among heirs or beneficiaries, the process can take longer.
How to Avoid Probate in Missouri?
There are legal ways people can keep assets out of probate, if they take advantage of such methods while they are still alive. Some ways include creating:
- A revocable trust.
- An irrevocable trust.
- Beneficiary deeds for real estate.
- Transfer on Death (TOD) designations for vehicles or financial accounts.
- Payable on Death (POD) designations for bank or financial accounts.
- Beneficiary bill of sale (also called beneficiary transfer instrument) for tangible personal property.
- Certain types of Joint titling of property, such as joint tenants with rights of survivorship or tenancy by the entirety.
These concerns can become quite complicated, but they do not have to be. Our attorneys at the Piatchek Law Firm, LLC in Springfield, Missouri are committed to helping our clients who want to save their beneficiaries from the time, stress, and hassle of probate. Whether you are an heir or beneficiary of someone who has recently died, or someone who wants to know more about avoiding probate, please contact us as soon as possible to get started.