Missouri Advanced Directives – What You Need to Know

UNDERSTANDING THE

PROBATE PROCESS

IN MISSOURI

Understanding the Probate Process in Missouri www.yourestatematters.com 2

Almost everyone is involved in the probate process at one time or another during their

lifetime either because they are named as the Executor of the estate of a decedent or

because they are a beneficiary of an estate. Even if you are never named as an Executor

or beneficiary you should still be familiar with the probate process because it plays an

integral part in many of the decisions you make when creating your own estate plan.

Although no two estates are probated in exactly the same way, there are a number of

common steps and issues involved in the probate of most estates. With at least a basic

understanding of those steps and issues you should feel better equipped to make estate

planning decisions for yourself.

Understanding the Probate Process in Missouri www.yourestatematters.com 3

What Is Probate?

Probate is the legal process often required following the death of an individual. The

overall purpose of probate is to ensure that all of the assets owned by the decedent at

the time of death are accounted for and ultimately distributed to the intended

beneficiaries or heirs of the estate. Probate also serves as a mechanism for creditors of

the estate to file claims against the estate as well as to ensure that taxes due on the

estate are paid prior to assets being distributed.

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Testate vs. Intestate Estates

Every estate that goes through the probate process falls into one of two categories –

testate or intestate. A testate estate is one in which the decedent left behind a valid Last

Will and Testament that is then used to probate the estate. An intestate estate is one in

which no Will was left behind by the decedent. When a decedent dies intestate the

Missouri intestate succession laws will determine how the estate assets are distributed.

If the decedent executed a Will prior to death the individual named as the “Executor” in

the Will is the person who will be in charge of overseeing the probate of the estate. If

the decedent died intestate the probate court will have to appoint a “Person

Representative” (PR) to oversee the probate process.

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Executor/Personal Representative Duties

People often make the mistake of naming an Executor when they create their Will

without giving much thought to the appointment. Depending on the size and complexity

of the estate left behind by the deceased, the job of Executor can be extremely time-

consuming and difficult. Although most Executors/PRs retain the services of an estate

planning attorney to assist throughout the probate process, the Executor/PR is

ultimately responsible for ensuring that the estate is probated correctly and in a timely

manner.

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Moreover, the Executor/PR has a number of important duties and responsibilities that

warrant consideration when deciding who to appoint to the position. Some of the more

important of those duties and responsibilities include:

Opening probate –legal documents must be prepared and filed with the

appropriate probate court to begin the probate process.

Locating and inventorying assets – all assets in which the decedent had an

ownership interest must be located by the Executor/PR. In addition, those assets

must be valued and inventoried for the court.

Notifying creditors --all known creditors are notified personally while all unknown

creditors must be notified by publication.

Managing and safeguarding assets –the Executor/PR is responsible for managing

and/or maintaining all assets until they are transferred to the new owner.

Defending the estate – if a Will contest is filed, for example, the Executor/PR is

required to defend the Will submitted to the court throughout the subsequent

litigation.

Preparing taxes – before any assets may be transferred all personal and estate

taxes must be calculated, filed, and paid.

Distributing assets –finally, the Executor/PR is also responsible for distributing the

estate assets to the intended beneficiary or heir.

Small Estate Administration

Formal probate can be lengthy process, often taking over a year to complete even for

relatively simple estates. With this is in mind, the State of Missouri offers a simplified

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probate process for estates that qualify. For an estate to qualify, the following must

generally be true:

The total value of decedent’s estate including real and personal property, less

liens and encumbrances, does not exceed $40,000.00.

No letters testamentary of administration have been issued or applied for in said

estate, nor has any order refusing letters been made in accordance with Sec

473.090, RSMo., nor has an application for such order been filed.

More than thirty days have elapsed since the death of the decedent.

All debts of the estate have been paid, or will be paid from the available estate

assets.

If the estate meets all of the above qualifications, an “Affidavit of Distributees for

Collection of Small

Estate”, commonly

referred to as a “Small

Estate Affidavit” may be

filed in lieu of formal

probate. If accepted by

the court, the Affidavit

will allow distribution of

the estate assets without

the need to spend

months, even years, in formal probate.

Understanding the Probate Process in Missouri www.yourestatematters.com 8

Avoiding Probate

Probate avoidance is a common

estate planning objective; yet,

many people don’t fully realize

just how important probate

avoidance strategies can be

when used appropriately.

Generally speaking, estate

assets that must go through

probate are unavailable to the

intended beneficiaries until the

conclusion of the probate

process. Leaving behind a bank account with $500,000 in it for your family does not do

them much good if they cannot access the funds held in the account. This is the primary

motivation for employing probate avoidance techniques in your comprehensive estate

plan. Some common ways to avoid probate include:

Life insurance proceeds –proceeds from a life insurance policy are not considered

to be owned by the decedent and are, therefore, not part of the estate of the

decedent so may be distributed to the beneficiary upon proof of death.

POD/TOD account designation –financial accounts, as well as securities and

certain other types of assets (depending on the state) may be designated as a

“Payable on Death” or “Transfer on Death” (POD or TOD) account. A beneficiary is

designated by the account/asset owner. Upon the death of the owner, the assets

held in the account automatically transfer to the beneficiary without the need to

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go through probate. Unlike a joint account, the beneficiary has no ownership

interest while the account owner is alive.

Jointly held assets –assets owned as “joint tenancy” in Missouri include a “right

of survivorship, meaning that upon the death of one owner the decedent’s

interest passes directly to the surviving owners outside of the probate process.

Trust agreements –a properly drafted trust agreement will allow assets to pass to

beneficiaries outside of the probate process, making those assets immediately

accessible to beneficiaries according to the terms of the trust agreement.

Because each estate is as unique as the owner of the estate you should consult with

your Missouri estate planning attorney if you have specific questions regarding your role

in the probate of a loved one’s estate or about how best to avoid probate in your estate

plan.

The Missouri Bar, Probate Law Resource Guide

Probate Division of the Circuit Court of Jackson County, Missouri, Probate Procedures

Manual

St. Louis County Probate Division, Frequently Asked Questions

NOLO, Avoiding Probate in Missouri

Circuit Court of St. Charles County, Small Estate Affidavit

Understanding the Probate Process in Missouri www.yourestatematters.com 10

Estate Planning and Elder Law Attorneys in St. Louis, MO St. Louis Estate Planning Attorneys: Planning for Your Future Today

Missouri Estate Planning attorneys Amen, Gantner & Capriano, Your Estate

Matters, L.L.C. are here to help you with legal issues regarding St. Louis Elder

Law, Veterans Aid and Assistance, Probate, Wills, Trusts, Trust Administration,

Powers of Attorney, Health Care Directives, LGBT, and all things required to

establish a proper estate plan for the future of both you and your loved ones.

Our law firm understands the varying dynamics of modern families and seeks to

address these issues in the estate plan so your estate is distributed only to those

who you request, instead of those who may be otherwise legally obliged to it.

Estate planning can be a big project that requires consistent maintenance;

however, our professional Estate Planning attorneys can organize all of the legal

paperwork and logistics for you, while offering helpful legal advice along the

way.

Amen, Gantner & Capriano, Your Estate Matters, L.L.C. 10805 Sunset Office Dr., Suite #100

St. Louis, MO 63127 Phone: (314) 966-8077

Estate Planning and Elder Law Attorneys in St. Louis, MO St. Louis Estate Planning Attorneys: Planning for Your Future Today

Missouri Estate Planning attorneys Amen, Gantner & Capriano, Your Estate Matters, L.L.C. are

here to help you with legal issues regarding St. Louis Elder Law, Veterans Aid and Assistance,

Probate, Wills, Trusts, Trust Administration, Powers of Attorney, Health Care Directives, LGBT,

and all things required to establish a proper estate plan for the future of both you and your loved

ones. Our law firm understands the varying dynamics of modern families and seeks to address

these issues in the estate plan so your estate is distributed only to those who you request, instead

of those who may be otherwise legally obliged to it. Estate planning can be a big project that

requires consistent maintenance; however, our professional Estate Planning attorneys can

organize all of the legal paperwork and logistics for you, while offering helpful legal advice along

the way.

Amen, Gantner & Capriano, Your Estate Matters, L.L.C. 10805 Sunset Office Dr., Suite #100

St. Louis, MO 63127 Phone: (314) 966-8077

www.YourEstateMatters.com