A Brief Guide to the Probate Process

Video Transcript

Hi folks. Thanks for stopping by. My name is Greg Robinson. Today I’d like to talk to you about a last will and testament and the probate courts.

The person who creates a will is typically called the testator. If you die having executed a will, it is said you died testative. If you die without having executed a will, it is said you died intestative. However, even if you die without having executed a will the laws of the state in which you reside have a plan of distribution for you called the statutes of intestative distribution.

Does my will control all the assets in my name?
The will controls the assets in the decendant's individual name. However, some types of assets such as IRAs and life insurance policies are governed by beneficiary designations. The beneficiary designation of the life insurance policy or the IRA would control the distribution, not the will.

When is my will effective?
The will is effective upon the death of the decendant. Many times people will our office stating that their spouse is disabled, and that the individual has executed a will and they will inquire whether or not they have the authority under the terms of the will to take certain action on the disabled person's behalf. Again a will is only effective upon the death of an individual. A power of attorney is a document which gives an individual authority to act on his or her behalf if the individual should become incapacitated. If you have questions on powers of attorney feel free to view our video on powers of attorney.

Once I die, where does my will get filed?
An individual who has the custody of the will has the duty to admit it to probate court upon the death of the decendant. Probate is actually a Latin word that means to prove, and in this case what we are proving is that the will is actually the will of the decedant.

What are some things that happen in probate court?
Once the will is admitted to probate court, if there are assets in the decedent's name that exceed forty thousand dollars a personal representative will be appointed on behalf of the decedent. That personal representative is named in the testator's will. Additionally the testator, in his will, will typically dispense with having the personal representative buy a bond and also allow the personal representative to serve independently without being supervised by the probate court.

What are some things my personal representative does?
Once a personal representative has been appointed, he or she has a duty to inventory the assets of the estate, pay the debts of the decendent, and eventually distribute the assets to those individuals who are named under the decedent's will. The advantage of having the will probated is that the personal representative is overseen by the probate court.

What are some desadvantages of probate?
One of the disadvantages of probate court is that it is expensive. For example, the personal representative and the attorney are both paid on a graduated fee schedule. Another disadvantage of probate court is that it is time consuming. In Missouri, we have both a six-month and a 1-year statute of limitation which must be satisfied before the assets can be distributed to beneficiaries. Another disadvantage of probate court is that the assets, which are shown on the inventory, are a public record. Anyone can come down to the probate court and review the inventory which has been filed by the personal representative.

Can probate be avoided?
An easier way to pay the bills and transfer assets to the beneficiaries and avoid the probate process is through the use of a living trust. If you have questions about a living trust feel free to view our video discussing same. If you have any questions on probate, feel free to give us a call. Thanks once again.

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