A great deal of myth and misinformation shrouds the Missouri probate process. The word “probate” actually encompasses a number of different court procedures including guardianships and conservatorships. However, most references to “probate” refer to a deceased person’s estate.
The modern probate process in Missouri is not a plague to be avoided at all costs as it is often characterized. Many of the particular problems commonly associated with probate may be eased by an experienced lawyer. In some cases, probate may be necessary or even desired. Nonetheless, the probate process can be particularly trying because of the death of a loved one, the pressure of dealing with high value assets, the difficulty in obtaining or discovering the deceased’s financial and personal information, and the complex problems of delicate family inter-relations.
Far from being some mystical court procedure, probate is merely the process by which a probate court, with the help of a personal representative (sometimes called the executor where there is a will, or an administrator when there is not a will), determines who receives the property and other assets of a deceased person. It is extremely rare, although not completely impossible, that assets transfer to or escheat to the state of Missouri.
The Probate Process
The process unofficially starts when a person dies. The person who passed away, known as the decedent, may or may not have left a will. If the decedent left a will, Missouri law requires that all original wills be filed with the clerk of the court in the country where the testator (the person who made the will) last resided. If there is no will, the estate is known as an intestate estate and the Missouri law of intestate succession will govern the distribution of estate assets. In these cases, the Missouri legislature has predetermined a statutory manner of distribution that must be followed. This is a good reason why everyone needs a will.
A person wanting to pursue a probate case will file a petition with the court to open a probate estate. In those cases where a will exists, notice is generally sent to both next of kin and those named in the will after the will is admitted to probate and the executor can represent the estate.
Next, the named executor in a will or some interested party in the case there is no will, is declared the personal representative of the estate by the probate court. The representative’s duties are straightforward and basically consist of collecting and preserving the assets of the estate, paying the debts and taxes, and distributing the remaining assets as directed by the intestacy statute or by the last will. As simple as this sounds, the task may be daunting, regardless of the size of the estate. A personal representative must keep track of the records of all money transactions involving the estate as an accounting and inventory must be prepared to present either to the heirs or to the court.
In addition to certain notices to heirs or legatees, Missouri law requires that notice of the opening of the estate be given to the public through publication in a newspaper so that the decedent’s creditors, if any, may make their claims on the estate. The estate representative must exercise due diligence by checking through the paperwork and effects of a deceased person to determine who is or who might be a creditor and to notify those creditors or potential creditors of the probate proceedings.
Notified creditors then have six months within which to file their claims. If a claim is not filed within the claims period, it is barred. For this reason, even a simple estate will be open for a minimum of six months from the date the executor is appointed and notice is served on creditors. This term is mandated by statute and is instituted to allow creditors of the decedent an opportunity to file claims against the estate. In those cases where there are no claims filed or where the claims are simple or small, most estates can be closed shortly after the expiration of the statutory claims period.
There are two “death tax” returns that might need to be filed during the administration of the estate. The first, commonly known as the “706” is the U.S. Estate Tax Return filed with the federal government. The second is the Missouri Estate Tax Return. These “death tax” returns must be filed if the entire estate, not just the probate estate, has assets in excess of a statutory amount. These days, the federal and Missouri taxes kick in at $5.3 million. Both returns, if required, are due and the taxes must be paid within nine months from the date of the death.
In addition to estate taxes, an estate must usually file a final income tax return for the final year of the decedent’s life. This return is usually due on April 15 just like any other income tax return. Finally, the personal representative may have to file an income tax return on behalf of the estate itself, known as a Form 1041, for the income generated by the probate assets during the time the probate estate is open.
After all claims are paid and the inventory and accounting are completed and approved, the personal representative can distribute the estate assets as ordered by the will or Missouri law if there is no will, collect receipts from estate recipients, and close the probate estate. The entire process can take anywhere from seven months to many years depending on the size and complexity of the estate.
Services and Fees
Checkett & Pauly provides a range of probate services for personal representatives—from the filing of the will with the clerk of the court to the final order of the court closing the estate—including the preparation and filing of probate pleadings, serving the required notices upon heirs and creditors, handling claim disputes and claim resolution, appearing in court on behalf of the personal representative, preparation and filing of inventories and accountings, arranging final distribution of the estate, and, in certain cases, filing income tax returns, estate income tax returns, and estate tax returns. We handle cases throughout the entire state of Missouri.
Probate Services: Hourly attorney fees at standard rate. We sometimes use the Missouri statutory fee schedule that is a percentage of the assets.
How to Get Started with Probate
The First Step in the probate process is to determine if there is a will or trust and call our office. Probate is a process that is governed by strict timing rules, so the sooner the process begins, the sooner it will end. We are always willing to have a short (5 to 15 minutes) initial telephone discussion to determine if we can assist you. Face to face initial consultations are by appointment only. To get this process started, email us at email@example.com or by phone at (417) 358-4049.