Navigating Probate
Law Days and Lattes: Episode 7 - Navigating Probate
Host: Sidney Wheelan
Topic: Probate Process in Missouri
Introduction:
- Explains the importance of avoiding probate if possible.
- Discusses what to do if there is no estate planning and probate is necessary.
What is Probate?
- Court-supervised process of transferring legal ownership of a deceased person's property (decedent) to their heirs or beneficiaries.
- Ensures creditors are paid and property is distributed correctly.
Key Terms:
- Claim: Debt owed by the decedent at death (medical bills, credit cards, etc.)
- Claimant: Creditor who files a claim against the estate.
- Devisee: Person named in a will to receive specific property.
- Distributee: Person entitled to receive a share of the estate through probate.
- Heir: Person entitled to inherit property if the decedent died without a will (intestate).
- Letters of Administration: Court order appointing a personal representative for an intestate estate.
- Letters Testamentary: Court order appointing a personal representative for a testator's (person who wrote a will) estate.
- Personal Representative: Person appointed by the court to manage the decedent's estate (executor or administrator).
- Probate Estate: Real and personal property owned by the decedent that goes through probate.
- Publication: Notice published in a newspaper about the probate process.
- Testate: Having a will.
Is Probate Necessary?
- Yes, unless the decedent has no probate assets.
Avoiding Probate:
- Giving property away while alive
- Living trusts
- Joint accounts with right of survivorship
- Pay-on-death (POD) or transfer-on-death (TOD) designations
- Life insurance or retirement account beneficiaries
How Does Probate Work?
- Personal representative manages the estate during administration.
- Debts, claims, and expenses are paid.
- Remaining assets are distributed to heirs or beneficiaries according to the will or Missouri law (intestacy).
- Minimum time to close an estate is approximately six months and ten days.
Rights of Creditors and Collection of Debts:
- Probate court oversees claims submitted by creditors.
- Personal representative collects debts owed to the decedent.
- Claims are paid before distributions to heirs or beneficiaries.
Taxes Payable After Death:
- Federal and state taxes may need to be paid before closing the estate.
Expenses of Probate:
- Bond premiums
- Publication costs
- Court costs
- Personal representative and attorney fees
Establishing Title to Real Estate:
- Probate clarifies ownership of real estate owned by the decedent.
- Heirs or devisees may need court approval to sell the property.
Rights of a Surviving Spouse in Missouri (Intestate):
- Receives one-half of the estate.
- If children exist, spouse receives the first $20,000 and then half of the remaining assets.
- Entitled to certain exempt property and allowances.
Rights of a Surviving Spouse with a Will:
- May elect to receive a statutory share instead of what's stated in the will.
- Cannot be completely disinherited unless a prenuptial or postnuptial agreement exists.
Types of Probate Administration:
- Supervised: Closely monitored by the court.
- Independent: Less formal, with fewer court approvals needed.
Streamlined Probate Alternatives:
- Small Estate Certificate: For estates under $40,000.
- Refusal of Letters: For surviving spouses, minor children, or creditors with estates under $15,000.
Determination of Heirship:
- Legal proceeding to determine heirs if probate wasn't opened within a year.
Attorney in Probate:
- Strongly recommended for regular probate cases.
Conclusion:
- Proper estate planning can help avoid probate for your loved ones.
- Seek legal advice for handling a decedent's estate or planning your own estate.
This podcast episode contains general information for discussion purposes only. Each case is different and must be judged on its own merits. Missouri rules generally prohibit lawyers from advertising that they specialize in particular areas of the law. This article should not be construed to suggest such specialization. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create an attorney-client relationship, and the listening or viewing of this podcast does not constitute an attorney-client relationship. The choice of a lawyer is an important decision and should not be based solely upon advertisements.
