Ozarks Professionals Spotlight
In Missouri, after a person dies, the heirs have one year to open a probate estate if full probate is necessary. The biggest issue that arises is that Wills are not effective unless admitted to probate court within one year of the death of the owner of the property. Thus, if a timely probate was not filed, the property will pass to the true heirs at law, not to the parties named in the Will. Additionally, when a family member dies, each individual asset must be examined to determine whether it automatically passed to another person upon death or whether it must be probated. If these determinations become complex, it may be useful to hire an attorney practicing in the area of probate to assist in analyzing the ownership of the assets.
A probate estate can be filed with the court whether the deceased person had a Will or did not have a Will. If the deceased person had less than $40,000.00 in assets, a full probate estate usually is not required unless insurance proceeds or pending litigation is involved. Determining what must be filed will require an examination of all the assets, how they are owned/titled, and their value.
Once a probate estate is opened, the court will appoint a personal representative to act on behalf of the estate. There are two ways in Missouri that a probate estate can be administered:
Independent Administration does not require court supervision for the basic administration of the estate. Section 473.780 of the Revised Statutes of the State of Missouri allows for a probate of the estate to follow an independent administration when directed by the Will or when all heirs consent. By avoiding court orders for every action of the personal representative, an independent administration is usually much cheaper to administer than a court-supervised administration. However, the personal representative does take on more risk since they bear the legal responsibility and would not have court orders protecting each of their decisions and actions. The heirs also must place more trust in the personal representative since the court will not be overseeing all actions taken on behalf of the estate.
A court-supervised administration requires that the court enter an order authorizing the personal representative to perform most needed actions in administering the estate. This can be cumbersome since to sell any property, utilize estate monies to maintain property, pay bills, or make any decisions about the assets requires that the personal representative petition the court and then gain a court order allowing them to proceed. It often costs more in attorneys’ fees for the estate in a court-supervised administration because it requires more documents to be filed with the probate court. However, the personal representative usually has the protection of a court order if an heir later complains about an action they have taken, and heirs have the satisfaction that the court is involved in the actions of the personal representative.
What to Do When a Family Member Dies
It is best after a family member dies to gather information concerning all of the person’s assets and debts, locate their estate planning documents, and make an appointment to have a consultation with an attorney. You may not need to pay the deceased person’s debts or at a minimum can wait to pay them until a later date. A probate estate or other probate filing may need to be done right away or it may be best to wait due to a creditor situation. These determinations are best to be made by an attorney after reviewing everything. Paying a bill that did not need to be paid or spending money that was not supposed to be spent can often be avoided by seeking legal advice before taking action.
What if the estate is worth less than $40,000.00?
When there are less than $40,000.00 of assets to probate, a Small Estate can be filed with the Probate Court. Any heir can take on the responsibility of asserting that all outstanding debts have been paid and then declaring who is legally entitled to the property. The process of filing a Small Estate is swift and relatively inexpensive. Also, unlike a full probate estate, a Small Estate can be filed after the one-year time limit from the date of death. If a spouse or minor children have survived the deceased, they can file a Refusal of Letters with the court. It is essentially a document stating that the estate is small and the spouse or minor children would be entitled to all of the assets and it should be automatically given solely to them without opening up a probate estate.
What if the estate is worth MORE than $40,000.00 and probate was not properly opened within the one-year time limit from the date of death?
If no estate is opened prior to the one-year time limit, a suit can be brought for a Determination of Heirs, or if the only asset is real estate an Affidavit of Heirs can be recorded. A Determination of Heirs is obtained by petitioning the probate court for an order setting forth who is entitled to the property. If there was a Will, it will not be followed since to be effective it had to be admitted to probate prior to the one-year time frame. The court will follow Missouri law to determine the names of the heirs and their ownership percentages. Only in regard to real estate can the probate suit be avoided; with real estate, an Affidavit of Heirs can be recorded with the recorder of deed’s office in the county where the property is located stating the names of the heirs of the property based on Missouri law.