Missouri Probate Process
Generally, these are the commons steps in any Missouri Probate administration:
- Hire an attorney to represent you.
- Apply for Letters Testamentary if there is a will admitted (or apply for Letters of Administration without a will).
- Publish notice to creditors. The date of first publication starts a six-month period for claimants to submit their claims to the court and the personal representative.
- Inventory and appraise assets.
- Administer the estate and sell property if funds are needed to pay bills.
- Pay debts, claims, taxes, and expenses.
- Prepare a settlement showing income and disbursements.
- Obtain court approval for distribution and close estate.
The Missouri Probate process is the court process whereby certain assets titled in the name of the deceased are transferred to his or her beneficiaries. The decedent’s property is held and managed by the personal representative during the administration of the estate. The personal representative makes distribution of the estate when the probate court approves the transactions made to pay claims and expenses and the proposed distribution schedule. The Missouri Probate process takes place in the Probate Division of the Circuit Court. This is typically in the county where the deceased made their permanent residence. The Missouri Probate courts have been established primarily to protect the rights of the deceased’s heirs, beneficiaries under a will and creditors. The Missouri Probate process also ensures the orderly transfer of property. The Personal Representative, either named in the will or appointed by the Probate Division is considered the agent for the estate during the probate proceedings.
When one dies leaving a will, that the person died testate. If one dies without a will, that person died intestate. In the situation involving no will, the beneficiaries are the individuals named under Section 474.010 of the Missouri Probate Code. The Probate court will appoint a Personal Representative and assets will be distributed equally among the heirs as directed by the Missouri Probate statutes.
The decedent’s will, if one existed, must be filed with the Missouri Probate court within one year of the date of death. The decedent’s Will becomes invalid after one year. If more than one year has elapsed, then you need a Missouri Probate attorney to file a Petition to Determine Heirs. This process can accomplish many of the same things that a full Missouri Probate estate can accomplish; however, the decedent’s estate is not distributed according to the terms of any Will.
A Missouri Probate estate is either supervised or unsupervised. This relates to the level of supervision by the Missouri Probate Court. A supervised administration is closely monitored and the Missouri Probate Court reviews and approves each action by the Personal Representative and audits the annual accountings. An independent administration is more informal and eliminates the need for court preapproval of each proposed step by the Personal Representative. This is especially important when it comes to the sale of real estate. An estate may be “independently” administered if the deceased’s will provides for it or if all the beneficiaries consent.
A Missouri Probate Estate takes a minimum of six months to complete. The earliest that an estate may be closed and the assets distributed to the heirs or beneficiaries is approximately six months after the opening of the estate. However, it is entirely possible for a Missouri Probate estate to take longer given the value of the estate and other unforeseen complexities.
State and Federal income tax returns will need to be filed for the decedent in a Missouri Probate. Given the size of the estate, there may be a need to a file an estate tax return for purposes of determining if any estate tax is due the federal government. This can cause the Missouri Probate estate to remain open for a longer period of time.
The decedent’s debts can be addressed through the Missouri Probate process. The Missouri Probate court provides a process through which creditors of the deceased can protect their claims and seek payment. Also, the Personal Representative can collect payment of any debts owed to the decedent, as well as seek the recovery of property owned by the deceased in the possession of others. Claims and family allowances against an estate shall be paid by the personal representative before the heirs and devisees can receive their distributions. If there are not sufficient assets to pay all claims and allowances, they are paid in proportion by certain priority classifications (for example, the funeral bill must be paid before general claims).
In a Missouri Probate, the attorney’s fees are based upon the size of the estate and the amount of work performed. Section 473.153 sets forth a minimum fee schedule for the Personal Representative and the Missouri Probate attorney. These fees are based upon a percentage of the value of the personal property administered and of the proceeds of all real estate sold under order of the probate court. This percentage is based upon a graduated scale as follows: 5% of the first $5,000; 4% of the next $20,000; 3% of the next $75,000; 2.75% of the next $300,000; 2.5% of the next $600,000 and 2% of everything over $1,000,000. Frequently, family members appointed to serve as Personal Representative will waive their claim to fees. If the attorney also serves as the Personal Representative, he or she will receive only one fee.
In smaller Missouri Probate estates, the statutory minimum fee will not be enough to compensate the lawyer for the work involved. In this case, the Missouri Probate lawyer may suggest an alternative, such as payment for work done on an hourly rate or perhaps a higher percentage than that provided by the statute. Compensation in excess of the scheduled fees may be paid only upon an order of the court and/or upon consent of all beneficiaries.
The O’Fallon Law Firm, LLC is experienced with the Missouri Probate process in St. Charles County, St. Louis County, Lincoln County and Warren County area. Retaining an attorney with expertise in this area of the law is important to ensure that assets are distributed correctly and in the most expeditious manner possible.
Our role in this process is to assist the personal representative or executor by identifying to the probate court all property which must pass through probate, ensuring that all estate debts are paid including all taxes and expenses of administration, ensuring that property is distributed as directed by a Will, and accounting to the Probate court or beneficiaries for the collection and distribution of probate assets.
We ensure that each probate estate is managed efficiently and in accordance with the decedent’s wishes. Please contact us for assistance with any form of probate matter.