UNDERSTANDING PROBATE

Types of Missouri Probate Estates

Probate is a "necessary evil" that is required in one limited circumstance: when a person has died, and still has assets legally titled in their own name. In other words, probate is necessary when assets are "stuck" in the name of a dead person. When someone dies owning assets in their name only, the assets will stay stuck that way, titled into that individual's name forever, unless someone takes action. Probate is the process of getting these assets "unstuck" out of the name of the deceased individual, and titled into the name of that person's living heirs.

There is a popular misconception that creating a Will avoids the probate process altogether. This is simply not true. A Will gives the creator the option to select who will be in charge of their estate (the "Personal Representative" or "Executor"), who their beneficiaries will be, and can give preference to whom would be guardian of minor children, and can give special burial instructions, to name a few. But a Will does not avoid probate; in actuality, a Will ensures and directs the probate process. For more on how to avoid probate altogether, please see the rest of this website, or call our attorney now to set up a consultation.

TYPICAL ADMINISTRATION OF ESTATES

Regular probate administration usually occurs within one year after the date of death if there is no Will; or can occur later than that if there is a Will, and it was presented for probate within one year after the date of death. There is usually more than $40,000 worth of net assets to go through the normal probate process. You will need an attorney to navigate this process, and most of the probate processes described below.

Whether or not you have a Will, if assets are still titled into your name after your own death, Probate will be required. A Personal Representative will be appointed to conduct the affairs of the estate, including gathering assets, paying debts, and issuing inheritances.

Administration can be "court-supervised" or "independent". Supervised administration means Court approval will be required for just about any action taken by the Personal Representative, which may lessen the liability of the Personal Representative, because the Judge is approving everything along the way. Independent administration means you and your attorney will receive less supervision, which may lead to quicker and easier administration, but the Judge doesn't give approval to every action of the Personal Representative, such as in Supervised Administration.

From this point, the personal representative creates an inventory of all probate assets, gathers all property, liquidates the property, pays debts, and distributes inheritances. This normal probate administration usually takes anywhere from 8 to 12 months, and can take longer, depending on whether or not real estate sells, as well as depending on other issues.

OTHER TYPES OF PROBATE ESTATES
("Dispensing with Administration")

The above "regular estate", whether it is independently administered, or supervised by the Court, are true, full probate estates. There are several other ways to send property through the probate process, without actually opening a full sized, regular estate. Each of these other methods can only be done in certain situations, and are exceptions to the rule. These other methods don't involve opening a probate estate at all; in fact, make no mistake: these other methods mean that a probate estate IS NOT being opened. These other methods are typically called "Dispensing with administration"; in other words, these methods involve transferring property to the living, without opening an estate, or without the Probate Court appointing a Personal Representative.

SMALL ESTATES

Regular estates in Missouri typically have over $40,000 in net assets. An estate is referred to in Missouri as a "Small Estate" when the estate has less than $40,000 in net assets. Why does Missouri set special rules for small estates? If you think about it, if our Court system had to do a full year long administration for every small estate, often the costs of administration might exceed the amount of trust assets; or the costs would at very least make the probate process cost-prohibitive. Also, if the Court system had put the same amount of time and effort into small estates as regular estates, the probate Court system would be jam-packed, and cases may take even longer than they do now.

So, estates that are worth less than $40,000 are actually probated differently. Special procedures and rules exist for small estates, which allow these small estates to be dealt with much more simply and affordably. The typical small estate should take closer to 4 to 8 weeks to completion, rather than 8 to 12 months.

Small estates that have over $15,000 in assets require notice to be published in the paper, while estates with less than $15,000 require no such notice.

REFUSAL OF LETTERS IN FAVOR OF A
SPOUSE, MINOR CHILDREN, DEPENDENTS, OR CREDITORS

Generally, if person passes away with assets titled into their own name, but leaves a surviving spouse, surviving minor children, other dependents, or creditors, those surviving persons may be able to claim certain amounts of property though the process known as "Refusal of Letters". In this process, the Court refuses to appoint a Personal Representative, and no probate estate is opened; yet title owned by the deceased person may still pass to a spouse, child, dependent, or creditor.

For example:

John Doe passes away, and the only asset still in his name is a Truck worth approximately $9,000. His surviving spouse may be able to take title to the truck through a "Refusal of Letters to a Surviving Spouse".

If John Doe's brother, James Doe, paid for John Doe's funeral and last expenses, and if this amount was $9,000 or greater, James may be able to take title to the Truck through a "Refusal of Letters to a Creditor", since James is now a creditor of the estate, because he paid bills for the estate and the estate owes him money.

Members of John Doe's family may also be able to take title through the "small estate" process discussed above. So as you can see, there may be multiple ways to send assets though probate, each process having different consequences and implications. Each case is different, and which probate procedure should be utilized in a given case is a choice that should be made by an experienced probate attorney.

DETERMINATION OF HEIRSHIP PROCEEDING

What happens when you find assets "stuck" in a deceased person's name a long time after they have died? What if it has been more than one year, and it is too late to file for a regular estate?

In this case, a different method of Probate called a "Determination of Heirship" proceeding will be required. As we mentioned earlier, a regular estate administration must be commenced within one year after the date of death. However, if no Will was presented within one year of the date of death, and no regular administration was ever commenced with the Probate Court, a Determination of Heirship proceeding can be commenced by your probate attorney to get these assets "unstuck" from a deceased persons name, even if the assets have been titled that way for many, many years. This does involve determining who the heirs are, locating them, filing a petition with the Probate Court, and usually having at least one hearing.

AFFIDAVIT OF HEIRSHIP

If you could otherwise use the "Determination of Heirship" proceeding for assets that only include real estate only, there is an exception that may allow you to avoid probate altogether, called "Deed of Heirship" or "Affidavit of Heirship". To use this exception and avoid probate altogether, you will have to be able to locate and name all potential heirs, and it works best if all heirs, and their spouses, will be cooperative in the creation of this document.

The Affidavit of Heirship is one of the only probate avoidance techniquest that can be accomplished after someone has already passed away.  Please see our webpage entitled "Affidavit of Heirship" for more detailed information on this method of probate avoidance.

Contact a Springfield, Missouri Probate Lawyer

Southwest Missouri Probate Attorney

 Call our office today at 417-882-5858 or send us an e-mail to schedule an appointment to further discuss your specific probate questions or concerns.