Commonly Asked Questions About Probate and Estate Administration in the State of Missouri
Has a loved one recently passed away? Then that individual’s estate will likely need to go through probate. Probate is necessary primarily when people don’t plan appropriately, or don’t understand their planning. Below are some of the commonly asked questions we receive regarding probate and the probate process in 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.
Definitions
Missouri Probate Terminology
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Claim – a debt or liability owed by the decedent at the time of death, the funeral expenses, and the costs and expenses of administering the probate estate. A “claimant” is a creditor who files a claim against a probate estate.
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Devisee – a distributee that is named in a will to receive certain property. May be a person or an entity such as a charity.
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Distributee – person or entity to receive a distribution through probate.
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Heir – a distributee, as determined by the Missouri statute of intestate succession, to receive real or personal property of an intestate.
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Intestate – a decedent who has died without having made a will.
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Letters of Administration – document from the probate court appointing the personal representative of an intestate’s estate (i.e., no will).
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Letters Testamentary – document from the court appointing the personal representative of a testate’s estate (i.e., with a will).
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Personal Representative – a person appointed by the court to be in charge of a decedent’s probate estate. Also called an executor or administrator.
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Probate Estate – real estate and personal property owned by the decedent and subject to administration supervised by the probate court, including any income after death.
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Publication – notice published in a newspaper in the county where the decedent resided.
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Testate – a decedent who has died leaving a will.
