There is a very good chance that, at some point in your life, you will be directly involved in the probate of an estate and will, therefore, need to know some basics about the probate process. You might find yourself involved in the probate of an estate because the decedent appointed you to be the Executor of the estate or because the decedent died intestate (without executing a Last Will and Testament prior to dying) and you volunteer to be the Personal Representative of the estate. You might also be involved because you are a beneficiary, heir, or creditor of an estate. If you manage to avoid all of these possibilities, you should still have a working knowledge of probate because that knowledge will be important when you do your own estate planning. With that in mind, consider the following “5 Things You Need to Know about Missouri Probate Laws.”
- Some estates will qualify for a simplified probate process. If a decedent’s estate is valued at less than $40,000, a small estate certificate may be obtained 30 days after the decedent’s death by a distributee without going through the full probate process. The distributee, called an “affiant,” must file an affidavit promising to use the decedent’s assets to pay debts and distribute the property according to law. If the estate requires formal probate, it may be supervised or independent with the former requiring close court supervision and the later allowing the Executor/Personal Representative (PR) to make decisions autonomously.
- Not all assets are part of the probate process. One of the first things and Executor/PR must do is to identify all estate assets and determine which of those assets are required to be part of the probate process. Some common non-probate assets include:
- Assets held in a trust
- Certain types of assets held as joint property
- Proceeds of a life insurance policy
- Assets held in an account with a “Payable on death (POD)” or “Transfer on death (TOD)” designation.
- Funds held in some retirement accounts
- A surviving spouse has a right to “take against the estate.” In an intestate estate, the spouse of a decedent is entitled to receive one-half of the estate of an intestate decedent. If the decedent is survived by children and the spouse of the intestate is also a parent of those children, the spouse receives an additional $20,000. This is in addition to certain exempt property and other statutory allowances for the spouse. If the decedent leaves a Will giving the spouse less than the spousal share, the spouse may, within a limited time, elect to “take against the will.” The spouse can then receive the statutory share rather than what was provided in the Will. In Missouri, a spouse cannot be completely disinherited unless it was contractually agreed to prior to the decedent’s death. For example, if a prenuptial agreement calls for the spouse to receive nothing.
- It will take at least six months to probate an estate. Although it often takes much longer, probating an estate will require at least six months because that is how long creditors have to file a claim against the estate. Once a claim is filed, the Executor/PR must review the claim and approve or deny it. Therefore, even a relatively modest estate cannot make it through probate in less than six months and about 10 days.
- The probate process cannot conclude until any federal gift and estate taxes due are paid. All estates are potentially subject to federal gift and estate taxes, payable at the rate of 40 percent. Every individual is entitled to exempt up to the lifetime exemption limit which is set at $5 million, but adjusted annually for inflation. For 2016, the lifetime exemption limit is $5.45 million. If gift and estate taxes are due, they must be paid before any assets may be distributed from the estate and before the probate of the estate can be concluded.
If you have additional questions or concerns about the Missouri probate laws or process, contact the experienced Missouri estate planning attorneys at Amen, Gantner & Capriano, Your Estate Matters, LLC by calling (314) 966-8077 to schedule an appointment.