Estate Planning and Probate

If individuals choose to organize their affairs while they are alive, it is called Estate Planning. If individuals fail to plan while they are alive, then the process to organize their affairs is called Probate. Either way, if an individual has assets, his or estate will be organized by someone.

Estate Planning focuses on getting your assets to who you want, how you want, in the manner you want. To do this, we use a variety of tools including durable Powers of Attorney, Wills, Living Trusts, and Other Trusts (SNT, QTIP, Qualified Spousal Trust, Marital Deduction Trust). Like most things in life, when people take time to plan, they are more satisfied with the end result. When estate planning clients leave my office they are satisfied that they know how their assets are going to and when the transfer will take place.

Probate is the alternative to Estate Planning. It is the State’s estate plan for you. Each state has its own probate laws. In Missouri, the probate laws are found in Chapter 473 of the Missouri Revised Statutes. Say John and Jane are married and have 3 children together. If John passes away, the probate laws of Missouri (RSMO 474.010) state that Mary would get the first $20,000 of his estate and only half of the remaining estate. The other half of the remaining estate would go to the children. So to keep it simple, on an estate of $200,000, Jane would only receive $120,000 while the children would receive $80,000. Probably not what either John or Jane would have wanted. And this could have easily been prevented with simple estate planning.

Free options to avoid this include having Joint Accounts or Naming a Payable on Death beneficiary. Other, more powerful options include having a Will or a Revocable Living Trust. Simply not planning and hoping things will take care of themselves, is tough to justify when the solution is either free or fairly inexpensive. Planning is better.

Contact Information

Mark - headshot

My contact information is:
Attorney Mark McMullin
Law Office of Mark McMullin
2007 Independence St.
Cape Girardeau, MO 63703
573-334-5125 – Office
frontdesk@capegirardeaulaw.com

 

About Mark

Southeast Missouri is my home. I grew up in Scott City, Cape Girardeau, and Jackson. After practicing law in Columbia, Missouri, I had the opportunity to return home and practice in the area where I grew up.

My Bachelor of Science degree is in Finance from Brigham Young University. After finishing my undergraduate degree, I worked as an Accountant for the Capital Group of Companies (American Mutual Funds) in Irvine, California. There I was on the Global Institutions Operations Team. I performed asset reconciliations on multi-billion dollar accounts for some of the nation’s largest institutional investors. Yet, the difficulty with large institutional investors is that you never have the opportunity to meet your clients and see the difference you are making in the lives of individuals. So I decided that practicing law would give me the opportunity he wanted of being able to make a positive impact on people’s lives.

I attended the University of Missouri law school. While at Mizzou Law I was recognized as a Top 10 Oralist in Moot Court and for receiving the highest grades in Appellate Advocacy and Professional Responsibility. And with my background in finance I had the unique opportunity during my third year of law school to teach Finance 2000 (an undergraduate finance class) at Mizzou. I am proud of the fact that during my second semester teaching Finance 2000, I was recognized as Outstanding Finance Instructor based on student evaluations.

Being able to help people solve problems is enjoyable. Whether that problem solving uses my law license or background in finance, or some combination of both, I get great satisfaction out of being able to help individuals like you.

Summary Judgment in Missouri: Who, What, When, & How

My target audience with this post is law school students and young attorneys tackling a summary judgment for the first time. Experience has shown that seasoned attorneys often forget exactly what it was like to not know how to do something. This is my primer on summary judgment for novices like me. For a more in-depth review of the subject, see Judge H.J. Bush’s article titled “How to Write a Motion for Summary Judgment.”

What is Summary Judgment?
“Summary judgment is designed to permit the trial court to enter judgment, without delay, where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute a right to judgment as a matter of law.” ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc. 1993).
In short, summary judgment is your chance to win your case before going to trial. Like a trial verdict, the judgment is final. However unlike a trial, summary judgment does not involve witnesses, experts, or a jury. Instead, the attorneys present their cases to the judge. The judge decides whether there is dispute of facts that should be decided at a future trial or if she can rule as a matter of law in one party’s favor today.
The standard for summary judgment is when there is “no genuine dispute as to the material facts.” A material fact is a fact that is required to establish your entitlement to recovery or right to an affirmative defense. In Missouri this can easily be established by referring to the Missouri Approved Jury Instructions (MAI).

“The record is viewed in the light most favorable to the non-movant.” ITT Commercial at 382. Thus summary judgment is not a place for credibility determinations as the non-moving party will always be given the benefit of the doubt. Id. For this reason, the majority of motions for summary judgment will fail. However, summary judgment is a very powerful tool for ending frivolous law suits.

Who can seek summary judgment?

Any party in a lawsuit. According to Rule 74.04 the movant is called the “claimant” and the responding party is the “defending party.”

When can you file a motion for summary judgment?
According to 74.04(a), the Claimant must wait 30 days after the commencement of an action before filing a motion for summary judgment. Any time after that, the claimant can file. According to 74.04(b), after a summary judgment has been sought against the “defending party,” it can respond with its own motion for summary judgment at any time.

Clearly the benefit of filing a motion for summary judgment early on in a case is to save money and to get the case resolved as quickly as possible.

Other timing considerations

The response in opposition to summary judgment is due within 30 days after service of a summary judgment motion. 74.04(c)(2). Reply briefs are due within 15 days after service of the response. 74.04(c)(3). Sur-reply in opposition is due within 15 days after service of the reply. 74.04(c)(4).

How do you file a motion for Summary Judgment?
Rule 74.04(c) provides the answer. A motion for summary judgment includes four parts. First, a statement of uncontroverted material facts. Second, a copy of all competent (admissible as if you were in court) evidence. Third, suggestions in support of motion for summary judgment. This is a separate legal memorandum explaining why summary judgment should be granted. And fourth, a certificate of service.
Typically, motions for summary judgment also include oral arguments. As mentioned above, this hearing consists of the attorney for each party outlining his argument, explaining the facts in light of the law on the subject, and answering the judge’s questions.

Motor Vehicle Accidents – Recover for damage to vehicle and personal property

In my experience, when a client comes in as a result of a motor vehicle accident, the attorney is concerned with two key figures – the amount of property damage and the amount of personal injury damage. In serious personal injury cases, the bulk of time and effort are focused on the costs associated with the personal injury. This is rightly so as this is where the bulk of the monetary damages usually are.

However, in less serious cases, where the primary damages are associated with property damages here’s something to consider. Most insurance policies define property damages as “physical damage to or destruction of tangible property, including loss of use of this property.” Lampert v. State Farm Fire and Cas. Co., 85 S.W.3d 90, 92 (Mo. App. E. Dist. 2002). This could include damage to a car stereo, clothing, or jewelry (including eye glasses).
The damaged items would be valued at “Actual Cash Value” (ACV). ACV is the equivalent of fair market value for an item in a similar condition. This follows the general guiding principle of damages, to make the injured party whole.