There is a very good chance that you will be directly involved in the probate of a Last Will and Testament at some time during your lifetime. For example, you might be appointed as the Executor in a decedent’s Will or be named as a beneficiary in a Will. In both cases, it will certainly be helpful if you know something about the probate process ahead of time. Even if you are never named as an Executor or beneficiary in someone else’s Will, you will undoubtedly include a Will in your own estate plan. Your own Will, at some point in the future, will also go through the probate process. Consequently, it is important that you understand how Wills are probated in St. Louis.
Last Will and Testament Basics
For most people, a Last Will and Testament serves as the foundation of their comprehensive estate plan. While most people add additional components to their plan, the plan begins with a Will. A Will can be very simple or extremely complex, depending on the Testator’s wishes. In your Will, for example, you might choose to leave numerous specific bequests to people because you have numerous family heirlooms in your possession. Conversely you could use your Will primarily to activate a testamentary trust into which the bulk of your assets will be transferred if you have minor children who cannot inherit directly from your estate. One thing that all Wills have in common though is an Executor. When you create your Last Will and Testament you will appoint someone as the Executor of your estate within the Will. Do not make the mistake many people make of simply appointing a spouse/adult child/parent without giving the matter due consideration because your Executor is the person who will oversee the entire probate process after your death.
What Is Probate?
When you die you will leave behind an estate that consists of all assets you owned, or had an ownership interest in, at the time of your death. Those assets must be passed down to the intended beneficiaries and/or heirs of your estate. Before that can happen though, creditors must be given the opportunity to file claims against your estate and all taxes owed by the estate must be paid. Probate is the legal process that ensures all of this happens as it should after your death.
Do All Estates Have to Go through the Probate Process?
Not all estates are required to go through the formal probate process in Missouri. 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 beneficiary without going through the full probate process. You may also be able to use independent administration instead of dependent which is more informal and eliminates the need for supervision by the probate division and annual settlements.
Surviving Spouse Right
If the decedent left behind 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.
What Are the Steps in Probate?
While the probate process is a highly individual process given the fact that it deals with a decedent’s personal assets and directions for those assets, there are some common steps that most estates go through during probate, including:
- Opening probate – the Executor must file the necessary documents to open probate with the appropriate court.
- Identifying, locating, and valuing estate assets – the Executor must identify all assets owned by the decedent at the time of death and obtain a date of death value for them. An inventory may need to be filed with the court.
- Notification of creditors – known creditors may be personally notified but unknown creditors must be notified must be notified by publishing a notice of probate in a local newspaper. Creditors then have a statutory amount of time within which claims must be filed or are for
- Payment of claims – the Executor must pay all approved claims using available estate assets. Assets may need to be sold if sufficient liquid assets do not exist.
- Payment of taxes – a state and federal taxes, including federal gift and estate taxes, must be paid.
- Winding up with the court – the Executor may need to file a final report, including a new inventory, with the court.
- Distribution of assets – the remaining assets are transferred to the intended beneficiaries and/or heirs.
If you have additional questions or concerns about the Missouri probate 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.