It’s common for individuals who own real estate to procrastinate estate planning. Too frequently, individuals procrastinate too long and end up passing away with no plan in place for their real estate. The result: legal confusion.
One family comes to mind. The wife had real estate that was only in her name. When she passed away, her husband desired to continue living on the property, but he ran into issues with his step-children who wanted to sell the property and collect a nice check for their share. The dispute escalated, lawyers were hired, and filings were made with the probate court. This was going to turn into an expensive, time-consuming, and messing legal fight.
Yet, there was an alternative to probate that none of the heirs knew about called an Affidavit of Heirship. A Missouri Affidavit of Heirship can be used to transfer property from a deceased individual to that individual’s heirs (as defined by Missouri law), without going to probate court. In order to use a Missouri Affidavit of Heirship, all of the heirs will need to agree on how to divide the property. Missouri law is clear on intestate succession so typically the parties will agree to follow the letter of the law.
If you have questions about how to handle real estate that is still titled into a deceased person’s name, after their own death, follow this checklist to see if an Affidavit or Heirship is right for you. Missouri Affidavit of Heirships can be powerful tools to avoid having property stuck in the name of a deceased loved one.
- 1. Was the real estate only in the name of the deceased individual?
- 2. Has the deceased individual been dead more than 1 year?
- 3. No will has been admitted to probate?
- 4. Did the deceased individual leave a last will and testament?
- 5. All of the legal heirs are in agreement and willing to cooperate?
A Missouri Affidavit of Heirship needs to be properly drafted, signed, notarized and filed with the county recorder’s office. Once complete, the heirs can receive clear title on the land. This is important so if the heirs decide to sell the land, they can get full fair market value since the potential buyer can obtain title insurance.
If you have property title in a deceased individuals name and need help getting it transferred to living heirs or getting it sold, contact Mark McMullin, a Missouri attorney with experience you can trust.
Probate is the process of transferring property from a deceased individual to living individuals. Sounds simple, right? Yet, it can quickly become complicated and expensive.
In Missouri, each county has a probate court that handles these transfers. However, probate takes time. The Missouri Bar advises that “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 happens during that time?
- 1. Hire an attorney to represent you. Make sure it is someone familiar with Missouri probate.
- 2. Apply for Letters (if there is a Will, the Letters are called “Letters Testamentary”; if there is no will, the Letters are called “Letters of Administration”)
- 3. Publish notice to creditors. This notice is important because it alerts creditors that an estate has been open and gives them information on how to submit any claims they may have.
- 4. Inventory and appraise assets.
- 5. Maintain estate property. Pay taxes, electric bills, insurance, etc.
- 6. Pay debts.
- 7. Keep careful records. You’ll need to prepare a “Settlement” showing where every dollar has gone.
- 8. Obtain court approval to distribute the reminder of the estate.
- 9. Close the estate.
If you are looking for a Missouri attorney to help you sort through probate, from opening an estate to getting funds distributed to the intended parties, we would be happy to help.
Recently I hosted an estate planning workshop for the community. In introducing myself I said that I focus my practice on estate planning and elder law. An attendee wanted to know what those terms meant: what does “estate planning” mean? What is “elder law”?
My simple definition for estate planning is this: planning so your property goes to who you want, when you want, and the way you want. The common denominator is doing what you want. Estate Planning is important because if you don’t plan, the state has a plan for you – and you may not like its plan. The common tools we use in estate planning are: wills, trusts (revocable living trusts and irrevocable trusts), powers of attorney, and beneficiary deeds.
Elder law is concerned with helping you stay in control as you age – our focus is on intended consequences. That means we have a plan for how you handle everything from how you stay in control of your healthcare decisions to how you pay for a nursing home. Elder law encompasses all aspects of planning for aging, illness, and incapacity.
A survey by Martindale-Hubbell reports that 55% of all American adults don’t have a will. In fact, most people spend more time shopping for a car, than planning their estate. The result is that as they age they face unintended consequences, or when they pass away, their spouse or children face unintended consequences.
Staying in control is better. Planning is better. Intended consequences are better. Estate Planning and Elder Law attorneys help make your life better.
I’m a note-taker. Usually you will find me with a blue ink pen and legal pad in hand, ready to take notes on whatever is being discussed. Recently, I came across one of my legal pads that had the following notes: Top 10 Reasons for Creating an Estate Plan from “The Everything Wills & Estate Planning Book” by Deborah S. Layton. I like the list because she outlines some of the major benefits of estate planning in layman’s terms.
- A sound estate plan can save your family thousands of dollars in taxes and legal fees.
- If you don’t have a plan, the government will decide who will receive your property.
- If you don’t have a plan, your spouse or partner may not receive the property you intended to provide.
- Most people can avoid or reduce estate taxes with the right plan.
- Naming a legal guardian in your will is the way to choose who will raise your minor children if you are gone.
- Creating a durable power of attorney ensures that someone can pay your bills and sign legal documents if you become disabled.
- Have a medical directive will provide guidance about your health care wishes in the even you become incapacitated.
- You can avoid the unexpected results of owning property in joint name when you understand the rules.
- You can make gifts to your favorite charity to reduce estate taxes but still provide for your family.
- A good estate plan can preserve your assets for your children’s use and prevent them from wasting those assets.