At some point in your life, there is a very good chance that you will be directly involved in the probate of an estate. Whether you were appointed to oversee the process or as a beneficiary/heir of the estate, knowledge of the probate process and the applicable laws will be critical. Even if you manage to avoid being involved in the probate of someone else’s estate, knowledge of probate law remains important because it will directly impact your own estate after you are gone. As such, you need at least a basic knowledge of the probate process when you create your own estate plan. With you need to know in mind, the probate attorneys at Amen, Gantner & Capriano put together some Creve Coeur probate law basics.
What Is Probate?
At the time of your death, you will leave behind an estate that consists of all assets owned by you when you died. This may include real property, such as your home as well as personal property, such as your household furnishings and vehicles. It may also include tangible assets, such as jewelry as well as intangible assets, such a copyright. One of the primary reasons why probate is required is to ensure that all your estate assets are eventually transferred to the intended beneficiary or to the legal heirs or your estate. In addition, probate serves as a forum wherein creditors of the estate can file claims, challenges to the validity of a Will can be litigated, and any gift and estate taxes owed to Uncle Sam can be calculated and paid.
Who Oversees the Probate Process?
One of the advantages of executing a Last Will and Testament is that it allows you to appoint an Executor for your estate. Therefore, if the decedent of an estate did leave behind a valid Will, the individual appointed in the Will as the Executor is who will oversee the probate of the estate. If the decedent died intestate, or without a Will, any competent adult can volunteer to be the Personal Representative of the estate and oversee the probate process.
Probate vs. Non-Probate Assets
Although all assets owned by a decedent at the time of death are part of his/her estate, not all of them are considered probate property. Only assets that are classified as probate property are required to become part of the probate process. With this in mind, a common probate avoidance strategy is to convert as many probate assets into non-probate assets as possible. Common examples of non-probate assets include:
- Proceeds of a life insurance policy
- Assets held in a trust
- Property titled as joint owners with rights of survivorship
- Assets held in an account designated as “Payable on death (POD)” or “Transfer on death (TOD)”
- Certain types of retirement or pension accounts
Non-probate assets bypass the probate process entirely, meaning they can be distributed to the named beneficiary or co-owner immediately instead of being held up until the probate process reached a conclusion.
Types of Probate
Formal probate can be a lengthy, can costly, process. As a general rule, the more valuable the estate is, and/or the more complex the assets involved are, the longer it takes to probate the estate. It also follows that the longer it takes to probate the estate the higher the cost to the estate which, in turn, diminishes the value of the assets left at the end of the process. Fortunately, most states, including Missouri, offer an alternative to formal probate for small, less valuable estates. In the State of Missouri, for example, estates with a net value of less than $40,000 may use an Affidavit for Collection of Small Estates in lieu of formal probate.
Do I Need a Probate Attorney to Help Me with Probate?
As with most legal matters, there is no law requiring you to retain the services of an attorney if you find yourself involved in the probate of an estate; however, it is in your best interest to do so in most cases. If you have been appointed the Executor of an estate, for example, it can be very difficult to navigate the probate process without assistance, particularly while you are grieving the loss of a loved one. Conversely, if you are planning your own estate, it is easy to make mistakes that your loved ones will pay for down the road if you attempt to create an estate plan without the help of an experienced estate planning lawyer. In general, when it comes to anything involving probate the old adage “better safe than sorry” is a good mantra to live by.
Contact Creve Coeur Probate Law Attorneys
If you have additional questions or concerns about probate law, contact the experienced Creve Coeur probate law lawyers at Amen, Gantner & Capriano, Your Estate Matters, LLC by calling (314) 966-8077 to schedule an appointment.