There is a very good chance that at some point in your life you will be involved in the probate of an estate. Your involvement may come as a result of being appointed the Executor under the terms of a testator’s Last Will and Testament or because you volunteer to oversee the administration of the estate of a decedent who dies intestate, or without leaving behind a valid Will. You could also find yourself a party to the probate of an estate because you were named as a beneficiary by the decedent or because you are a legal heir to an intestate estate. You might even be a creditor who is owed money from the estate. Regardless of the reason for your involvement in the probate process, if you are involved in the probate process in the State of Missouri you should have at least a basic understanding of the Missouri probate laws. Finally, if you manage to make it through your entire life without being directly involved in the probate of someone else’s estate, you will still need to know more about the Missouri probate laws so you will know how those laws might impact your own estate after your death.
What Is Probate and Why Is It Required?
When you die, you will leave behind assets. Assets may include real and personal property as well as tangible and intangible assets. All of those assets will make up your estate for purposes of the probate process. Probate is the legal process that is required of most estates after the death of the estate owner. Probate serves three main purposes. First, probate provides a structured process by which all assets of the decedent can be identified, located, and eventually transferred to the new owners. Second, probate allows creditors of the estate to file claims against the estate and, if approved, to receive payment for the claim prior to the transfer of estate assets to beneficiaries or heirs of the estate. Finally, probate ensures that all federal gifts and estate taxes due on the estate are paid by the estate before estate assets are distributed to beneficiaries or heirs of the estate.
Is Probate Always Necessary?
Like all states, the State of Missouri requires some type of administration following almost all deaths; however, not all states are required to go through the costly (both in terms of time and money) process of formal probate. Missouri offers alternative to formal probate for smaller estates, including:
- Small Estate Certificate — 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.
- Refusals of Letters — Surviving spouses and the decedent’s minor children can file what are called “refusals of letters” to have their statutory allowances paid from a decedent’s estate if the estate is valued at a lesser amount than the allowances. Creditors can also reach certain assets, such as bank accounts, to pay their bills by filing creditor refusals of letters if the estate value does not exceed $15,000.
In addition, Missouri offers two types regular administration — supervised and independent. Independent administration is less formal, meaning it usually takes less time and incurs less expense than supervised administration of an estate.
What Happens During Probate?
Unless an estate qualifies for a small estate alternative, the steps involved in the probate process are typically as follows:
- Opening probate. Typically, the Executor also files a Petition to Probate at that time which serves to begin the probate of the estate. If the decedent died intestate almost anyone can volunteer to be the Personal Representative of the estate and begin the probate process.
- Identifying, locating and valuing assets – all assets owned by the decedent at the time of death must first be identified and then located and secured by the Executor of the estate.
- Identification of heirs in an intestate estate. If the decedent died intestate, all legal heirs of the estate must be identified because the intestate succession laws of the State of Missouri will determine which of those heirs inherit the decedent’s estate and in what proportion they inherit.
- Notifying creditors and paying claims – known creditors of the estate are usually personally notified while unknown creditors must receive notice via publication. Creditors then have a specific amount of time within which to file a claim against the estate. The Executor reviews those claims and pays approved claims out of estate assets if sufficient assets are available.
- Challenges to the estate. In the event anyone challenges any aspect of the estate, such as by filing a Will contest, the Executor must defend the estate and the Will submitted to probate.
- Paying estate taxes. Federal gift and estate taxes must be calculated and any tax obligation due from the estate must be paid before assets from the estate can be transferred to beneficiaries or heirs. Fortunately, the State of Missouri does not have a state inheritance tax; however, any state taxes owed by the decedent personally must be paid.
- Transferring assets to beneficiaries/heirs. The Executor is finally able to transfer the remaining estate assets to the intended beneficiaries or heirs of the estate.
The Missouri probate laws and procedures can be complicated, particularly for someone who has never been through the process before. The best way to ensure you understand the applicable laws and are not violating any of them is to consult with an experienced Missouri estate planning attorney.
If you have additional questions or concerns about Missouri’s probate laws, contact the experienced Missouri estate planning attorneys at Amen, Gantner & Capriano, Your Estate Matters, LLC by calling (314) 966-8077 to schedule an appointment.