STARTING THE PROBATE PROCESS – ARTICLE 1 of 3
Starting the probate process when a person dies can be an intimidating process. My experience as a probate attorney Creve Coeur has been that the family of the deceased don’t even know where to begin.
The purpose of this article is to give the reader a step by step guide of how to deal with the probate process in Missouri, what you need to know and what issues may come up.
Step 1: Request a Death Certificate and Secure Any Estate Planning Documents Like Wills or Trusts
So when a person dies, there will be a “shock period” where initially no one has the details about funeral plans and people are just generally receiving news that the person is deceased. This is obviously a difficult time for the family and friends of the deceased.
However, it’s during this process that the person who was told they would be in charge of the estate secures a death certificate (usually via the funeral home or company handling the arrangements for burial or cremation). Also, if the person owned a home, the home can be entered (if possible) and the personal documents of the person secured and removed from the home. This should include wills, account statements, bills and so on.
If no will is discovered or it’s not clear who is in charge of the estate, then the immediate next of kin (spouse or if not married, children) should handle this first step.
Step 2: Review the Will and Discover the Assets of the Deceased
If there is a will, the will should be reviewed to confirm who was named as the personal representative (executor) in the document. From there that person should be in control of the process and they can delegate certain duties to others if they wish.
The mail of the deceased should be forwarded to the personal representative so they can get a handle of the debts and assets of the deceased.
If there is no will, the process can be a bit more complicated. Under Missouri law, the next of kin has the first right to serve as the administrator (executor when there is no will). Again, surviving spouse or if none then all of the surviving children have equal rights to be appointed administrator in the probate process.
If there is a trust, that document should be reviewed to determine who the trustee is (this article will deal solely with wills and intestate estates, not trusts).
Step 3: Meet with a Probate Attorney / Hire a Probate Attorney
Like many states, there is very little a person can do in probate without hiring a lawyer. If an estate needs to be opened, an attorney must almost always need to be hired under Missouri law and for the more obvious reason that probate administration is a complex and tricky process.
The initial meeting to start the probate process with the probate attorney will require that paperwork and information be gathered and brought to the attorney’s office for review during the consultation. Among the paperwork typically needed are: the death certificate, names / addresses / phone numbers / email addresses / Social Security numbers and dates of birth of all heirs / beneficiaries / executors.
During the consultation, the probate attorney will review all the gathered information to confirm if the will is valid, confirm the executor and discover the assets. It’s often the case that the decedent (the person who died) has some assets that must go to probate because there is no beneficiary listed, but some assets that avoid probate.
Remember, however, that the will and if no will, the probate only covers assets that have no beneficiary, are not owned by a trust or that are otherwise not jointly held with another person.
The attorney will also want to know what debts the decedent had. Credit cards are unsecured debts, so the attorney can advise you on how to handle those versus medical bills, outstanding loans and other debts.
The probate attorney can and should go over the probate process (next article) and their fee.
In Missouri, attorneys can charge a fee based on statute (see here). The statutory fee is the minimum fee that the attorney can charge, but can charge more. When you are starting the probate process, some attorneys work on a flat fee that may be higher or lower than the statutory fee.
It’s important when you are starting the probate process that you walk out of the meeting with the probate lawyer more knowledgeable about what steps have to be completed.
Starting the probate process is obviously an important first step. Probate is complex in Missouri, as it is in most states. Whether assets must go in probate is often very nuanced, as are the language of wills.
The next article “The Probate Process – Article 2 of 3” will discuss the different documents and information that need to be filed to initiate the probate, what documents need to be filed after the probate has begun, the rights of creditors while the probate is open and the timeline from start to finish during the probate.
Legacy Law Center assists business owners throughout St. Charles County, St. Louis County, Warren County and Lincoln County with probate administration. If you’re need of assistance from a probate attorney, call our firm for a FREE CONSULTATION to learn how we can help. Call us today at (636) 486-2669!