Probate

probate courtThe etymology of the word probate can be traced back to the Latin word probatum, meaning a thing proved or judged. What we are proving in the probate court is whether the decedent’s will is valid or invalid.

The Missouri licensed attorneys at the law firm of Gregory E. Robinson, P.C., have over fifty years combined experience and they understand that the probate process can be overwhelming – especially while grieving the loss of a loved one. Gregory E. Robinson has twenty-five years of experience assisting clients through the probate process. He meets with each of his clients personally to ensure that their questions are answered and he helps navigate them through the complexities that can arise during the probate process.

The Probate Process
Probate can be described as the process by which the decedent’s will is admitted or rejected to probate, the creditors paid and the assets distributed to the beneficiaries. The probate process can be time consuming and expensive. There are a few methods in Missouri to shortcut the full probate process. The Missouri licensed attorneys at the law firm of Gregory E. Robinson, P.C., have the experience to advise you if one of these shortcuts can be utilized for your case. The statutory shortcuts available in Missouri to dispense with the probate process are:

1). Refusal of letters to a surviving spouse or unmarried minor children;
2). Refusal of letters to a creditor; and
3). Small estate affidavit.

The first two options are known as refusal of letters and are found at Section 473.090 RSMO. The last option is known as an affidavit of distribution and is found at Section 473.097 RSMO.

All three of these shortcuts were first created in Missouri in 1877. Many other States have adopted, in some form or another, these shortcuts.

Refusal of Letters to a Surviving Spouse or Unmarried Minor Children
Section 473.090 RSMO sets forth the process by which to refuse to issue letters, namely, when to refuse to appoint a personal representative for the estate of the decedent. Section 473.090 RSMO allows for a refusal of letters to the surviving spouse or unmarried minor children when the value of the decedent’s estate is not greater in an amount as exempt property, as set forth under Section 474.250 RSMO, and the allowance for maintenance to the surviving spouse or unmarried minor children as per Section 474.260 RSMO.

Section 474.250 RSMO provides that the exempt property, regardless of value, belongs to the surviving spouse, or if there is no surviving spouse, to the unmarried minor children. Section 474.260 RSMO provides that in setting the amount of the support allowance, the court may consider the previous standard of living of the applicant, the condition of the estate, the income and other assets available to the applicant.

The statutes regarding a refusal of letters to the surviving spouse or unmarried minor children do not specify a maximum dollar limit on the value of the assets that can be included when utilizing a refusal. Local court rules, however, might impose limits on the dollar amounts that can be included when utilizing a refusal of letters.

Refusal of Letters to a Creditor
Section 473.090.2 RSMO limits the use of a refusal of letters to a creditor. The Statute provides that the estate of the decedent cannot be greater than fifteen thousand dollars and the refusal cannot be utilized if there is a widow, widower or unmarried minor children. Also, the court may require that a bond be posted before granting the refusal. Section 473.090.6 RSMO also allows for any person to apply for refusal if they have paid the funeral expenses or the debts of the decedent.

Small Estate Affidavit

Another very popular method to shortcut the full probate process is the small estate affidavit as set forth in 473.097 RSMO.
The Statute provides that the affidavit can be used if the value of the entire estate, less liens, debts and encumbrances, does not exceed forty thousand dollars. The Statute thus allows for offsets of liens and debts so that the net estate does not exceed forty thousand dollars. The Statute requires that thirty days have elapsed before applying for a small estate affidavit. The court may also require that a bond be posted. The Statute also requires that notice be published in a local paper once a week for two consecutive weeks if the value of the estate is greater than fifteen thousand dollars. The small estate affidavit is frequently utilized by the adult children of the decedent or by the siblings of a decedent. There are, however, various concerns that can arise and that must be examined before attempting to utilize a small estate affidavit, particularly when attempting to perfect, or to clear, title on real estate of the decedent.

Citation to Produce the Will
When an individual passes away Section 473.043 RSMO requires that the person having the custody of the will deliver it to the probate division of the circuit court which has jurisdiction of the estate.

If a will is in the safe deposit box of the decedent, the Statute requires that the custodian deliver the will to the proper probate court. The Statute also provides that if the probate division of the circuit court is satisfactorily informed that any person has in his possession the will of any testator, and refuses to produce the same, the court may summon the person, and compel that person, by attachment and commitment, to produce the same.

Beginning the Probate Process
The items discussed above were some methods that might be utilized to shortcut the full probate process. If those methods are not available then it might be necessary to administer the estate of the decedent by utilizing the full probate court process.

When a personal dies having executed a will, it is said the person dies testate. When a person dies without having executed a will, it is said the person dies intestate. When an individual dies testate, the person named in the will to administer the estate of the decedent is known as the personal representative. When an individual dies intestate, the person who administers the estate of the decedent is known as the administrator.

Obtaining Authority from the Probate Court – All About Letters
In order to obtain the authority to act on behalf of the decedent, the person named in the will, the personal representative, will file a petition with the probate court asking the court to issue letters testamentary. If the court admits the will and issues letters testamentary to the personal representative, then he or she will be authorized to administer the estate of the decedent. Letters testamentary are usually granted to the person named in the will unless the court has found the person to be incompetent, unsuitable or improper, or the person is disqualified or fails to apply for letters. 473.110 RSMO.

If a person dies intestate, an individual will petition the court for the authority to act on behalf of the decedent by filing a request for letters of administration. 473.110 RSMO. The individual named to act on behalf of an intestate estate is known as an administrator. Section 473.110 RSMO sets forth the individuals who may apply for letters of administration. The Statute provides that letters of administration may be granted to the husband or wife, or to one or more of those individuals who are entitled to the distribution of the estate, the decedent’s heirs, who the court believes will best manage and preserve the estate. The individuals who will be entitled to the distribution of the decedent’s estate, the heirs, are set forth by statute and are located at 474.010 RSMO.

There are time limits as to when an individual may apply for letters. There are also certain items required by Section 473.017 RSMO which must be included in the application for letters testamentary or of administration. One of the items required to be included in the application is whether the application is for supervised or independent administration.

Supervised or Independent Administration
Section 473.780 RSMO provides that if a will authorizes independent administration, either by specific reference to the Statute or by language authorizing that the estate be administered independently, without adjudication, order or direction of the court, then letters testamentary can be granted authorizing the personal representative to administer the estate independently.

When all of the heirs interested in an intestate estate consent to independent administration, the court may authorize in the letters of administration that the estate be administered independently. Section 473.780 RSMO.

If the estate is supervised, it will take much longer to probate the estate due to the necessity of obtaining the appropriate orders from the probate court to administer the supervised estate. Consequently, in order to avoid some of the delay that results from a supervised estate, many testators and heirs opt for independent administration.

Basic Duties and Powers of Personal Representatives
One of the requirements for granting letters testamentary or of administration is contained in Section 473.017 RSMO. That Statute provides that if the letters are issued the applicant will make a perfect inventory of the estate, pay the debts and legacies, if any, and account for and distribute or pay all assets which come into the possession of the personal representative, and perform all things required by law touching the administration of the estate.

Section 473.793 RSMO requires that within thirty days of appointment an independent personal representative prepare and file an inventory of the property owned by the decedent at the time of death. The inventory must include reasonable detail, indicating each item listed, its market value at the time of death and the type and amount of any encumbrance that may exist. The assets of the deceased which have to be included on the inventory might consist of, bank accounts, money market accounts, certificates of deposit, brokerage accounts, dividend reinvestment plans, individual stock certificates, real estate holdings, pending lawsuits, royalty payments or refunds due the deceased. The Statute imposes a duty on the personal representative to inventory all the assets of the deceased. Obtaining and assembling the information required to complete the inventory can be very difficult and time consuming.

Section 473.797 RSMO provides that the personal representative may hire qualified and disinterested appraisers to assist in ascertaining the fair market value as of the date of death of the decedent for any asset that may be subject to reasonable doubt. Typically the personal representative will retain the services of an appraiser to obtain the date of death value on real estate owned by the decedent. Additionally, real estate appraisers are typically retained to obtain the value of a leasehold interest. Other types of assets that are subject to reasonable doubt and which might require hiring an appraiser could include art collections, stamp collections, coin collections, button collections or antiques. Each case is fact specific and the personal representative will need to review the assets of the estate and determine if the services of an appraiser are necessary in order to file the inventory.

There are other steps which might have to be taken by the personal representative in order to comply with his or her fiduciary duties. Sometimes the personal representative will want to obtain a Federal Employer Identification Number on behalf of the estate. Additionally, it is very helpful if the personal representative can obtain a copy of last year’s income taxes of the deceased. In most cases the personal representative will have to file a final income tax return for the deceased (IRS form 1040). The personal representative will usually have to file an income tax return for the probate estate (IRS form 1041).

The Personal Representative will generally file IRS Form 56, Notice Concerning a Fiduciary Relationship at the commencement of the administration of the estate and also at the termination of the estate.

After the personal representative has filed the final tax returns, the personal representative will want to be discharged from personal liability for the taxes of the decedent and the probate estate. The personal representative will generally file a Request for Discharge from Personal Liability, IRS Form 5495.

If the probate estate consists of real property, the personal representative will need to contact the insurance company of the deceased and inform the insurance company of the passing of its insured. The personal representative will need to obtain insurance coverage for the real estate and also verify that the personal representative is insured. Many times the real estate will be vacant. The personal representative will have a duty to make sure the insurance company provides coverage for a vacant building and that the property is insured. Additionally, the personal representative will be under a duty to obtain insurance coverage on the personal property of the decedent.

The personal representative will have to rekey the locks to the real estate to ensure that the property is locked and protected. The personal representative will have a duty to make sure the lawn is cut and grounds maintained. Additionally, the personal representative will have a duty to make sure the property has adequate heat in the winter.

The personal representative will want to cancel the credit cards of the deceased. In order to protect against identity theft and the corresponding nightmare of having someone use the identity of the decedent for fraudulent charges, the personal representative will want to notify the three major credit reporting bureaus of the decedent’s passing and request that the decedent’s account be flagged to not issue credit. The personal representative will typically send a copy of the death certificate together with a copy of his or her letters to the three credit bureaus.

The personal representative will have to identify all the assets that form part of the estate for federal estate tax purposes. Depending on the size of the estate, the personal representative might have to file IRS Form 706, the Federal Estate Tax return, which is sometimes called the death tax return.

Some other powers and duties of the personal representative are set forth in Section 473.810 RSMO. Some of these powers include the following: to make repairs to buildings or property, to vote stocks, to pay taxes, assessments and other expenses incident to the administration of the estate, to prosecute or defend claims, to sell, mortgage or lease any real or personal property of the estate and to satisfy and settle claims, and distribute the estate.

If there are claims against the decedent’s estate, these claims will have to be filed in the probate estate. There is a time limit set forth by Section 473.360 RSMO which governs when most claims must be filed against the estate of the decedent. Section 473.360.1 RSMO provides in part that all claims against the estate of a deceased person, other than costs and expenses of administration, exempt property, family allowance, claims of the United States and claims of any taxing authority within the United States, whether due or to become due, which are not filed in the probate division of the circuit court within six months after the date of the first published notice of letters testamentary or of administration or, if notice was actually mailed to, or served upon such creditor, within two months after the date such notice was mailed, or served, are forever barred against the estate, the personal representative, the heirs, devisees and legatees of the decedent.

Section 473.360 RSMO provides a compelling reason for the personal representative to send actual notice of the published notice of letters testamentary in that it shortens the claim period for creditors from six months to two months if the creditor receives actual notice from the personal representative. The prudent personal representative will want to ascertain all the known creditors and send notice to them to shorten the statute of limitations available for the creditor to file claims.

The personal representative will also have to determine what was paid previously to the creditor and how much should be paid to the creditor. Sometimes the attorney for the personal representative will schedule a hearing on the claim in order to determine the amount that should be paid by the personal representative.

The personal representative will typically want to wait six months before paying any claims. Section 473.433 RSMO provides in part that upon the expiration of six months after the date of the first publication of letters, or when it appears that there are sufficient assets to pay all claims whether or not theretofore allowed, the personal representative shall proceed to pay all claims to which he has consented or which have been allowed by final judgment.

The personal representative might also have to deal with the complexities of a will contest. The will contest will be heard by the probate court judge.

Each estate is unique and the actions which might have to be taken by the personal representative in one estate might not have to be taken in another estate.

Distributing the Assets to the Beneficiaries
After the appropriate statutes of limitation have passed, and all claims and taxes have been paid, the personal representative will have a duty to distribute the assets which remain in the estate to either the beneficiaries named in the decedent’s will or if operating under letters of administration, the personal representative will have to distribute the assets pursuant to the laws of intestate distribution.

In order to distribute the assets to the beneficiaries, a supervised personal representative will seek the probate court’s approval for the final settlement and petition the court for an order authorizing the distribution. 473.580 RSMO.

Section 473.840 RSMO provides that in independently administered estates, unless ordered by the probate court, for the filing of a document called a statement of account in order to make the final distribution. The statement of account will include, in part, a complete accounting of all receipts and disbursements of the probate estate, a statement that all claims, expenses of administration and taxes have been paid in full and a schedule of the proposed distribution of the assets.

Notice of the statement of account can be published in a local newspaper once a week for four consecutive weeks, the last publication to occur at least seven days prior to the date specified in the notice for filing the statement of account. The publication notice can be waived by the interested parties.

Each probate estate is unique. While there a few commonalities for all probate estates in Missouri, each probate estate must be administered based upon the facts of that particular case. The Missouri licensed attorneys at the law firm of Gregory E. Robinson, P.C., have over fifty years combined experience and they can assist you if you have questions regarding the probate process. Gregory E. Robinson has twenty-five years of experience assisting clients through the probate process. He meets with each of his clients personally to ensure that their questions are answered and he helps navigate them through the complexities that can arise during the probate process. The Missouri licensed attorneys at the law firm of Gregory E. Robinson, P.C., have the experience to advise you regarding how to best proceed with your probate case.

If you have questions regarding the probate process in Missouri, please feel free to watch one of my videos which discuss the probate process in more detail.

If you are wondering how you might avoid the probate process in Missouri, please feel free to watch my video, A brief Guide to Living Trusts.

If you have any questions regarding the probate process in Missouri, please feel free to contact law offices of Gregory E. Robinson, P.C., at 636 532-9500.

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