Hi folks. Thanks for stopping by. My name is Greg Robinson. Today I’d like to discuss with you 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 that you die testate. If you die without having executed a will, it is said that you die intestate. 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 statues of intestate distribution.
The will controls the assets in the decedent’s individual name. However, some types of assets, such as IRAs and life insurance policies, are governed by beneficiary designations. The beneficiary designation of a life insurance policy or the IRA would control not the terms of the bill.
The will is effective upon the death of the decedent. Many times people will call our office stating that their spouse is disabled and that the individual has executed a will. And they inquire whether or not they have the authority under the terms of the will to take certain action on the disabled persons 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.
An individual who has the custody of the will has the duty to admit it to probate court upon the death of the decedent. 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 decedent.
Once the will is admitted to probate court, if there are assets in the decedents name that exceed 40,000 dollars, a personal representative will be appointed on behalf of the decedent. That personal representative is named in the testators will. Additionally, the testator, in his will, will typically dispense with having the personal representative by a bond and also allow the personal representative to serve independently, without being supervised by the probate court.
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 decedent, and eventually distribute the assets to those individuals who are named under the decedents will. The advantage of having the will probated is that the personal representative is overseen by the probate court.
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 one year statute of limitation, which must be satisfied before the assets can be distributed to the 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 probate court and review the inventory which has been filed by the personal representative.
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 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.