missouriprobate.info

Do Heirs Need an Attorney in a Missouri Probate Matter?

Rick — Wed, 28 Dec 2011 19:54:42 +0000

We get inquiries from time to time asking if we represent heirs/beneficiaries in Missouri Probate matters, and if it’s a good idea. The answer, as with many things, is “it all depends”. If the family gets along reasonably well and if the Personal Representative is trustworthy and efficient, then there is little need. Obviously, the opposite is also true. Sometimes the Personal Representative simply doesn’t do their job, whether it’s because of lack of advice or misunderstanding, or something more sinister. In those situations a motion for their removal and replacement may be appropriate. Other, less drastic remedies, such as requesting that the estate be Supervised by the Court may be adequate. Sometimes there are simply disagreements on matters, such as valuations, that the court must become involved with. In other words, whether or not an heir or beneficiary needs representation is purely a matter of the particular situation, and comfort.

Email us if you need more information, or if you are considering having us represent you.

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Missouri Probate Law – the Statutes

Rick — Mon, 24 Oct 2011 22:52:26 +0000

Want to see the actual Missouri Probate Statutes? Insofar as decedents’ estates are concerned, it is contained in three Chapters of the Missouri Revised Statutes:

Chapter 472 – General Provisions

Chapter 473 – Administration of Decedent’s Estates

Chapter 474 – Intestate Succession and Wills

Of course there are hundreds, if not thousands of Missouri Cases that have interpreted these Statutes.

If you still have questions or need our help just email us or send us a question. We’ll get back with you as soon as we can.

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Missouri Probate of Older Estates

Rick — Mon, 24 Oct 2011 20:05:20 +0000

From time to time we are contacted by someone dealing with some sort of property that should have been probated, but for whatever reason was overlooked. This could be because the asset was recently discovered, or perhaps real estate was not titled as was believed, or simple procrastination.

The first thing to know is that after one year a Will may not be presented for probate – so even if there was one, it doesn’t matter, and it certainly doesn’t matter what the Will said. That means that the property will pass under the Missouri Laws of Descent and Distribution, the same as if there was a “normal” probate without a will.

If the value of the property, whatever it may be, is less than $40,000, then a Small Estate Proceeding may be used, and normally is the preferred procedure, as it is generally faster and less expensive.

If the value of more than $40,000, than we must file an Application to Determine Heirship, commonly called an “Heirship” proceeding. The application is relatively simple, you simply state the name, etc. of the decedent, the description of the property or asset involved, and those who are entitled to receive under the Descent and Distribution Statute. You must notify all parties by certified mail, and a notification must be published. Finally, there must be a hearing, at which the person applying testifies that the facts in the Application are true — normally a very short, matter of fact process. From start to finish this normally takes roughly 90 days. And, yes, you will need a lawyer to do this.

At the end the Court enters an order stating who the new owners are, and if necessary this is recorded in the real estate records.

Questions? Let us know and we’ll try to help.

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Getting a Will from a Safe Deposit Box in Missouri

Rick — Tue, 18 Oct 2011 22:08:07 +0000

A couple of times each year we are contacted by someone who is trying to get a Will out of a Bank Safe Deposit Box. They have the key, but are not “authorized” to access the box and remove items. Normally this can be handled relatively simply. A very short “Petition” can be filed in the Probate Court that will result in an order authorizing the Bank to allow the Box to be opened, inventoried, and instructing them to deliver the Will to the Probate Court. Click here for the form that is used in Clay County. Many times it is processed immediately and you can then go to the Bank. The Bank will normally not allow items to be removed from the box, but will often inventory the items so that you know what is there.

If you don’t have the key then the bank will likely have to arrange for someone to come in a drill open the lock. This will involve some expense and delay.

Once the Personal Representative is appointed they will be allowed full access and may remove any and all items.

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Update on Small Estate Affidavits in Missouri

Rick — Tue, 09 Aug 2011 02:43:40 +0000

Just a few notes on things we’ve been noticing as concerns the filing of Small Estate Affidavits in Missouri. These matters generally pertain to documents that local Probate Courts seem to be requiring more often. You won’t find them in the Missouri Statutes – but if you don’t comply it’s likely that you may not get your desired result.

Paid Funeral Bills. Have one ready to file with your affidavit
If your filing involves Real Estate have a “drive by” appraisal. Often this is simply a letter from a Real Estate professional with their opinion as to market value. Obviously you should use the value from the letter in your affidavit.
If your filing involves an asset with debts associated with it, such as a vehicle loan or a real estate mortgage, include a current statement.
Provide a copy of the death certificate
If the total value exceeds $15,000 then be certain to have the fee for publication of Notice as to your Small Estate Filing

If your lawyer doesn’t ask for these documents provide them anyway — chances are they will be needed. Having them up front will just make things move more quickly.

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Is Probate Optional in Missouri?

Rick — Thu, 04 Aug 2011 17:59:31 +0000

Several years ago a potential client came in. Dad had died several years ago, and Mom died a few weeks ago. There was a will that said the the family farm went to the two children. I started to explain to them the Probate process in Missouri, and they became very upset. They did not understand why there had to be a probate proceeding when the will was very clear. I tried, unsuccessfully, to explain the “Title Clearing” function of probate. This function creates a public record that shows how the title to the farm transfers to the children. Without this there is no way to establish legally who owns the farm, or any other assets, for that matter. This Title clearing function is extremely important where title does not pass in some other manner, such as by joint ownership, beneficiary designation, or through a trust.

At any rate, they stomped out of my office and told me in no uncertain terms that they were not going through probate, and that I was not a very good lawyer!

I hope they changed their mind, but I never heard back.

So, can you just ignore the probate system? Is Probate in Missouri optional? Yes, it’s optional. You can do nothing. However, eventually it will catch up with you, or with somebody. In this case sooner or later the children will want to sell or mortgage the property, give it to their own children, or something along these lines. They will not be able to do so because the farm will still be titled in Mom and Dad’s name. After one year the will cannot be probated in Missouri, and then an “heirship” proceeding must be used to establish title. This may or may not achieve the desired result. Eventually the property may “escheat” to the State of Missouri.

Probate is optional, but rarely is it a good idea to not bite the bullet and go through the process. We understand that and try to make the process as sooth and understandable as possible.

Email us if you have questions.

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Missouri Probate Administration with non-Missouri Real Estate

Rick — Mon, 11 Jul 2011 22:00:43 +0000

Well, that’s kind of a mouthful. What happens if a Missouri resident dies with real estate that is subject to probate, but that is located in another state. In most cases it means that a second, “ancillary” administration must be opened in another state. Depending on the state and a whole lot of other matters this will almost always involve a second lawyer, more fees, and delays. Sorry, but that’s the way it is. The key is to identify this as an issue early in the process and get the second lawyer working on things quickly.

The out of state matter is to some extent a “subset” of the Missouri administration. This doesn’t mean that the Missouri Court controls the matter. It means that the second state’s courts are involved solely for clearing title to the property in question.

Normally the second, non-Missouri administration is much simpler because it normally only involves a single asset, and no money, for the money is normally accounted for in the Missouri administration. Nevertheless, in most situations it’s absolutely necessary. If the matters are handled properly the overall length of the process does not necessarily change.

Questions? Email us, or set an appointment to come in and see us.

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Missouri Probate – Reading of the Will

Rick — Thu, 23 Jun 2011 22:18:15 +0000

Occasionally we are asked about the “reading of a will” after a loved one has died. While some lawyers may engage in this seemingly dramatic event, I never have, and I don’t know of anyone who does. Insofar as I’m concerned it’s a Hollywood thing. There is certainly nothing in Missouri Law that requires it, or even speaks to this. From a very practical sense, the will doesn’t legally mean anything until it has been admitted into probate. Normally before that can happen all the heirs, who are most commonly children, have seen it anyway. After the Will has been admitted into Probate it is a public record, and anyone can go look at it for any reason, or for no reason.

Whoever has the will in their possession is required to deliver it to the Probate Court. Normally this is done at the time of the request that it be admitted into probate. It might, in some situations, make sense for all of the family to gather at the lawyer’s office to sign the documents to commence the probate administration, but in this day and age of instant communication, it makes little sense to force a child or other heir to wait for a formal “reading” to find out what’s going on.

If you want more information call us or email us.

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Missouri Small Estate Affidavit Form

Rick — Mon, 20 Jun 2011 21:20:03 +0000

We are often asked for forms for Missouri Small Estate Affidavits. Here is one from Clay County. Different counties have slightly different versions so you should check with the County where you will need to file yours. In our office we sometimes use the forms, and sometimes draft our own, depending on the facts at hand.

A small estate affidavit cannot be filed until 30 days have passed since the date of death.

Having said that we don’t recommend that you try this without legal assistance. Although the process seems simple there are many nuances that come into play. This is particularly true where there are multiple asssets or if real property or Life Insurance is involved. We understand that you want to save money. Remember, sometimes penny-wise is dollar foolish.

Email us if you have questions.

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When is Probate Required in Missouri?

Rick — Fri, 17 Jun 2011 22:33:28 +0000

A loved one has died. How do you know if a probate proceeding will be needed?

The answer is really simple, although gathering the information needed may take some work.

Let’s use a Certificate of Deposit at a bank as an example. If the CD was in the decedent’s name alone, and there is no Payable on Death, or “POD” designation, then probate will likely be necessary. If the CD is jointly titled, AND the interest is a “survivorship” interest then the CD becomes the property of the co-owner. If there is a POD designation, then it becomes the property of the person so designated. Of course, these examples assume that the beneficiary or co-owner if living.

In the case of life insurance or retirement plans, the money goes to the beneficiary if there is one. If there is no named beneficiary who is living, then probate will be necessary.

The same rules apply for real estate, vehicles, etc. However, as to real estate you must be certain that the property, if co-owned, is an interest that passes to the survivor. As between husband and wife, there is a strong presumption that this is the case. As between others, such as a parent and a child, the deed must have the letters “JTWROS”, or the words “Joint Tenants with Rights of Survivorship”, or something similar. If a “Beneficiary Deed”, or “Transfer on Death” deed has been recorded, then it’s provisions will prevail if the beneficiary is living, and there will be no probate.

Put another way, if someone can access or obtain the particular asset or property in question, then there is no probate. Otherwise, you are out of luck.

If you have questions or need help send us an email.

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