Law Office of Mark McMullin
Frequently Asked Questions
Estate planning can often seem overwhelming and confusing. To add some clarity to the process, our attorneys have compiled a list of our FAQs about estate planning in the space below. If you have further inquiries, do not hesitate to contact our office, and we will happily answer your questions.
Probate is the court and process that looks after people who cannot make their own personal, health care and financial decisions. These people fall into three general categories: Minor Children (under age 18 in most states); Incapacitated Adults; and People who have died without legal arrangements to avoid probate. Probate proceedings can be expensive and time-consuming. Additionally, the court proceeding and associated documents are all a matter of public record. Many people choose to avoid probate in order to save money, spare their heirs a legal hassle, and keep their personal affairs private.
This is the most common form of asset ownership between spouses. Joint tenancy (or TBE) has the advantage of avoiding probate at the death of the first spouse. However, the surviving spouse should not add the names of other relatives to their assets. Doing so may subject their assets to loss through the debts, bankruptcies, divorces and/or lawsuits of any additional joint tenants. Joint tenancy planning also may result in unnecessary death taxes on the estate of a married couple.
The document a person signs to provide for the orderly disposition of assets after death. Wills do not avoid probate. Wills have no legal authority until the willmaker dies and the original will is delivered to the Probate Court. Still, everyone with minor children needs a will. It is the only way to appoint the new “parent” of an orphaned child. Special testamentary trust provisions in a will can provide for the management and distribution of assets for your heirs. Additionally, assets can be arranged and coordinated with provisions of the testamentary trusts to avoid death taxes.
Sometimes called an Advance Medical Directive, a living will allows you to state your wishes in advance regarding what types of medical life support measures you prefer to have, or have withheld/withdrawn if you are in a terminal condition (without reasonable hope of recovery) and cannot express your wishes yourself. Oftentimes a living will is executed along with a Durable Power of Attorney for Health care, which gives someone legal authority to make your health care decisions when you are unable to do so yourself.
If you die without even a Will (intestate), the legislature of your state has already determined who will inherit your assets and when they will inherit them. You may not agree with their plan, but roughly 70 percent of Americans currently use it.
You may avoid probate on the transfer of some assets at your death through the use of beneficiary designations. Laws regarding what assets may be transferred without probate (non-probate transfer laws) vary from state to state. Some common examples include life insurance death benefits and bank accounts.
These allow you to appoint someone you know and trust to make your personal health care and financial decisions even when you cannot. If you are incapacitated without these legal documents, then you and your family will be involved in a probate proceeding known as a guardianship and conservatorship. This is the court proceeding where a judge determines who should make these decisions for you under the ongoing supervision of the court.
This is an agreement with three parties: the Trust-makers, the Trustees (or Trust Managers), and the Trust Beneficiaries. For example, a husband and wife may name themselves all three parties to create their trust, manage all the assets transferred to the trust, and have full use and enjoyment of all the trust assets as beneficiaries. Further “back-up” managers can step in under the terms of the trust to manage the assets should the couple become incapacitated or die. Special provisions in the trust also control the management and distribution of assets to heirs in the event of the trustmaker’s death. With proper planning, the couple also can avoid or eliminate death taxes on their estate. The Revocable Living Trust may allow them to accomplish all this outside of any court proceeding.
Whether you are young or old, rich or poor, married or single, if you own titled assets such as a house and want your loved ones to avoid court interference at your death or incapacity, consider a revocable living trust. A trust allows you to bring all of your assets together under one plan.
Because Missouri pays them by statute to handle it. RSMo § 473.153 sets minimum fees as a percentage of the estate — about $7,425 in attorney fees alone on a $250,000 estate — and the work arrives steadily, no marketing required. There is nothing sinister about that. But it does explain why few lawyers volunteer ways to keep your estate out of probate court.
We will. For many families, beneficiary designations, a Missouri beneficiary deed, or a trust can spare the family the entire process. And when probate is genuinely needed, we handle it — and we will tell you plainly which situation yours is.
It can be. Documents collected over decades — from different lawyers, banks, and stages of life — frequently contradict each other, and the rules of priority surprise people. A beneficiary designation on an account overrides what your will says about that account. An old power of attorney may lack the powers a crisis requires. A will from a prior chapter of life may still name people you would rather it did not.
None of it fails until the day your family needs it to work — which is the worst possible day to find out. A review typically catches the contradictions before they go off. Our 10-question Estate Plan Checkup is a good first pass.
Commonly Asked Questions About Probate and Estate Administration in the State of Missouri
What Law Governs Missouri Probate?
Probate is the process by which a court determines whether a person’s last will and testament is valid. Many people also use the term to refer to the process of administering someone’s estate after the validity of the will has been proven. Administering the estate generally includes gathering and taking control of estate assets, paying any debts owed by the estate, paying any taxes that are due, and distributing assets to the beneficiaries of the estate.
Why Do I Need to Hire an Attorney to Help Me with Administering an Estate?
The role of a personal representative carries significant responsibilities and risks. Mismanagement can lead to removal from the position and potential legal action for breach of fiduciary duty. There are also tax obligations to be met, making the role both challenging and critical. Given the complexities of the probate process, seeking professional legal assistance is advisable.
How Should I Choose a Probate Attorney?
It is important to remember that you will be working with the probate attorney for six months to a year. You not only need to choose an experienced probate attorney but also one with whom you will be able to work well. At the Law Office of Mark McMullin, we pride ourselves on being professional while making sure that our clients feel comfortable. We are happy to speak with you for a free initial call during which time you can see if we are a good fit for you.
What Probate Options Are Available for Small Estates?
Missouri has a simplified probate process for small estates that meet certain qualifications. This process allows you to cut down on the time and costs of probate.
There are two forms of condensed probate proceedings in Missouri:
RSMO 473.090 (“letters of refusal”): This involves estates of $15,000 or less
RSMO 473.097 (“Small Estates”): This involves estates of $40,000 or less
This process usually requires the beneficiary of the estate to file an affidavit in the Probate Division describing the decedent’s property, setting out the names and addresses of the individuals entitled to receive the property, and state all unpaid debts of the decedent will be paid. It usually takes the probate court 7-30 days to issue a decree.
What Probate Expenses Should I Expect?
The administration of any probate estate involves the payment of certain expenses. The expenses usually encountered in the average estate fall into four main categories.
- Bond Premiums
- Costs of Publication
- Court Costs
- Personal Representative’s Commission and Attorney’s Fees
How Much Does Probate Cost?
Missouri law sets forth the minimum fees for the attorneys and personal representative’s commission in probate cases. See Section 473.153. Attorneys collect a percent of the personal property administered and of the proceeds of all real property sold under order of the probate court. The following table shows the current minimum fees.
Amount | Percent Fee |
On the first $5,000 | 5% |
On the next $20,000 | 4% |
On the next $75,000 | 3% |
On the next $300,000 | 2.75% |
On the next $600,000 | 2.5% |
On all over $1,000,000 | 2% |
What Is Probate?
Missouri law governing probate is found in Sections 472-275 of Missouri Revised Statutes. If there is no will, state law determines how the individual’s assets are distributed. See Section 474.010 for a list of beneficiaries. If a married individual, with children dies, the first $20,000 of the estate goes to his spouse with the remainder of the estate being split equally between the decedent’s spouse and children.
How Long Does Probate Take In Missouri?
The earliest that an estate may be closed and distribution made to the heirs or beneficiaries is approximately six months and 10 days after the date of first publication. However, it often takes a year or more to finish the administration.
What Is the Role of the Personal Representative?
The decedent’s property is held and managed by the personal representative during the administration of the estate. The personal representative makes distribution of the estate when the probate court approves the transactions made to pay claims and expenses and the proposed distribution schedule.
What Are Probate Assets?
Probate assets are those assets belonging to a deceased person (“decedent”) which pass to the beneficiaries named in the decedent’s will (or, if there is no will, to the decedent’s heirs as determined by law) as part of the probate process. These assets do not have a survivorship feature or beneficiary designation to control who receives the property when the decedent dies. Some examples of probate assets are:
- personal property
- bank or brokerage accounts that have no beneficiary designation or that name the decedent’s estate as the beneficiary
- proceeds from a life insurance policy owned by the decedent on his or her life that are payable to the decedent’s estate
- Real property owned entirely by the decedent or the decedent’s interest in real property as a tenant in common
What Are Non-Probate Assets?
Non-probate assets are those assets that have a survivorship feature or a beneficiary designation. Upon a decedent’s death, his or her non-probate assets pass directly to the joint owner or the designated beneficiary and are not subject to the probate process. However, non-probate assets can become probate assets if there is no named beneficiary or the beneficiary is the decedent’s estate. Some examples of non-probate assets are:
- property owned by the decedent in joint tenancy with a right of survivorship
- bank or brokerage accounts with POD (payable on death) or TOD (transfer on death) beneficiaries
- retirement benefits with beneficiary designations
- proceeds from a life insurance policy on the decedent’s life
- property owned by the decedent’s revocable living trust
What Are the Benefits of Non-Probate Assets?
Non-probate assets are distributed outside of probate. This can be very helpful in a variety of circumstances: (1) if you own property in multiple states, (2) if your beneficiaries need to have access to your assets immediately upon your death, or (3) if you have reason to think someone might contest your will.
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