Typically our clients want to avoid Probate Court. Yet, if probate cannot be avoided, here are the steps that you have to go through during a normal Probate case in the state of Missouri.
Note, this is for a “normal” case, yet please keep in mind that each case is different. For example, if the estate is less than $40,000, a Small Estate may be used. If the estate is less than $15,000, a Small Estate may be used and the publication requirement is waived. The smart move if you’re not sure what to do is to contact an experienced attorney who handles probate.
what is probate COURT?
Probate Court is a court with jurisdiction over (1) determination of the validity of Wills and (2) administration of estates and (3) matters involving adults judged to be incompetent.
The order of events in Probate Court
- PETITION. A petition is filed with the proper Missouri probate court (normally the County where the deceased lived or where the real estate is located). For example, a resident of Jackson, Missouri would file the Petition in Cape Girardeau County. The Probate Court for Cape Girardeau County is located in the Common Pleas Courthouse.
- NOTICE. Notice is given to heirs under the Will or, if no will exists, to statutory heirs.
- EXECUTOR. A Petition is filed to appoint executor (in the case of a Will) or administrator for the estate. You may also hear this person referred to as the deceased’s “Personal Representative”.
- INVENTORY. The executor or administrator performs an inventory and appraisal of the estate assets.
- PAY DEBTS. Payment of estate debt is made to rightful creditors.
- SELL PROPERTY. Estate assets are sold.
- PAY FEES. Fees include attorney fees, court costs, and estate taxes (if applicable).
- MAKE DISTRIBUTION. After all expenses are paid, the final distribution of assets is made to heirs.
In Missouri, there are 5 requirements for a will to be valid:
- It must be in writing;
- It must be signed by the testator (the person making the Will) or by someone by his direction and in his presence;
- Testator must be over age 18;
- Testator must be of sound mind; and
- It must be witnessed or attested to by two or more competent witnesses who also sign the will in the presence of the testator,
Most Wills today are also self-proving. This means that the testator and the two witnesses appear before a notary public and state something substantially similar to:
- The testator signed and executed the instrument as his last Will;
- The testator willingly signed or willingly directed another to sign for him;
- The testator executed it as his free and voluntary act for the purposes therein expressed;
- That each of the witnesses, in the presence and hearing of the testator, signed the Will as witness; and
- That to the best of the knowledge of each witness, the testator was at that time eighteen or more years of age, of sound mind, and under no constraint or undue influence. (see RSMO 474.337).
Having a self-proving will simplifies and expedites the probate process.
Clients sometimes ask how they can revoke a prior Will. Missouri statute 474.400 contains the answer:
“No will in writing, except in the cases herein mentioned, nor any part thereof, shall be revoked, except by a (1) subsequent will in writing, or by (2) burning, (3) cancelling, (4) tearing or (5) obliterating the same, by the testator, or in his presence, and by his consent and direction.”
Clients often contact me asking for an appointment to make a Will. While visiting together, it becomes clear that what they are really interested in is avoiding probate. Often, much to the client’s surprise, they learn that a Will does not avoid probate. I’ll repeat that again because it is so important: a Will, by itself, does not avoid probate. To avoid probate, consider a Revocable Living Trust and Beneficiary Designations.
When one’s estate passes through probate in Missouri, there are a number of fees that the estate will face. There can be (1) bond premiums, (2) cost of publication in a local newspaper, (3) court costs, and the largest expense (4) attorney fees.
By statute, Missouri law establishes a minimum fee schedule for estates passes through probate. The fees are a percent of the money and personal property in the estate. It can also include any real estate sold during probate.
The minimum attorney fees in Missouri probate are as follows:
|Size of Estate
|Less than $5,000
|$5,001 – $25,000
||$250 + 4% of amount over $5,000
|$25,000 – $100,000
||$1,050 + 3 of estate over $25,000
|$100,001 – $400,000
||$3,300 + 2 ¾% of estate over $100,000
|$400,000 – $1,000,000
||$11,550 + 2 ½% of estate over $400,000
||$26,550 + 2% of estate over $1,000,000
The statute is 473.153. It can be found here: http://www.moga.mo.gov/mostatutes/stathtml/47300001531.HTML
Plus, the law allows the personal representative to take an amount equal to the attorney’s fee. The result is for an estate of $150,000, one may face $9,350 of expenses. Planning is better!
Often I have clients schedule an initial consultation to discuss having a Last Will and Testament drafted for them. While I am happy to do this for clients, upon further discussion, most clients realize that what they actually want is something different than a Will.
A Will is great for nominating guardians for minor children. Having a Will is also far better than passing away intestate (that is, without a Will) where default Missouri law controls the management and distribution of your estate rather than it being distributed according to your desires.
Yet, a Will often leads to Probate Court. This is the very thing that most of my clients want to avoid. After all, probate court (1) costs money, (2) consumes your loved one’s time, (3) leaves some decisions up to the local probate judge, and (4) is a matter of public record.
A much better plan is to avoid probate. And in most situations, in Missouri, avoiding probate is not that difficult to do. Clients can avoid probate by using all or some combination of the following:
1. a Revocable Living Trust (RLT) agreement,
2. a Beneficiary Deed for Missouri real estate,
3. a Gift Deed for personal property,
4. Payable on Death provisions for bank accounts,
5. Transfer on Death provisions for vehicles and boats, and
6. Beneficiary Designations for retirement and financial accounts.
Might it cost a little bit of money now to avoid probate later? Probably. Yet, avoiding planning now is being penny wise and pound foolish. One great thing about estate planning is the peace of mind it brings to my clients, that their affairs are in order and their wishes will be carried out.
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.