Personal Representative

Home / Archive by category "Personal Representative"
Do I Need An Attorney For Probate In Missouri?

Do I Need An Attorney For Probate In Missouri?

Do I Need An Attorney For Probate In Missouri?

    Yes.  You do need an attorney in Missouri for probate.  Here is why:  First, in order to proceed with an independent probate administration, state law requires it.  Under RSMo. 473.787 (3) (link:, an independent personal representative (executor) shall “secure the advice and services of an attorney” on legal questions arising in connection with matters related to the opening of a probate estate, applying for an the issuance of letters testamentary or administration, preservation of estate assets, the inventory of the probate estate, dealing with creditor claims and their payment or resolution, filing of tax returns, making distribution and the closing of the estate.

So basically Missouri law requires it if you want to proceed independently.  The alternative is to proceed with a supervised probate estate, which is often specifically not called for either under the will of the decedent.   Because the last will and testament controls the actions of the personal representative, often an attorney must be hired.

Secondly, a probate estate should be opened with the assistance and services of a probate attorney because opening, administering and closing an estate is complex.   That’s a practical consideration.  In addition, probate matters can be very emotionally draining for families.  If you’ve ever lost a loved one, you know how emotionally charged that situation can be.  If you’re the executor named in the will,  you’re often going to feel a lot of pressure to get things done quickly.  I’ve seen this happen in the closest of families.  Family members often don’t understand that just because there is money in the estate, that money just can’t be immediately divided and checks cuts.

Also, remember, the problem is that you owe a “fiduciary duty to the persons interested in the estate” (i.e. the heirs or beneficiaries).   There is no incentive for you to handle the estate alone and in fact, if you do so and then claim you were not up to the task, you can be held personally liable for any of your errors.   Frankly, a person handling an estate without any knowledge how to do so is already engaging in a breach of their fiduciary duties.

Finally, remember the probate process in Missouri is complicated and requires you to devote time to handle it.  Very few estates are as simple as people believe.  Assets cannot be found, creditor claims pop up that were previously unknown.  Deadlines must be met and the court has little to no mercy on those that claim they aren’t attorneys.  With the help of an attorney, those deadlines can be met and headaches can be avoided.

Your best bet is to work with a probate attorney and let them handle all of the filings.  The best part?  You’ll still be involved in the process and still earn a statutory fee (usually the same amount as the attorney) for serving.

5 Reasons You Need an Estate Plan Regardless of Wealth

5 Reasons You Need an Estate Plan Regardless of Wealth



5 Reasons You Need an Estate Plan Regardless of Wealth

There are at least 5 reasons you need an estate plan regardless of whether you are wealthy or not.  This is a popular myth in estate planning, that it’s only for those with a lot of money.  In reality, every adult should have an estate plan and the older you get the more crucial it becomes.

So here is why estate planning and wealth have no connection.

#1  If you have minor children, you need to name guardians for them.  

If you have minor children, I want you to imagine who would take care of them if you were gone.  Aunt Leslie?  What is Aunt Leslie doesn’t want to take care of them or she is gone.  Who is the next option?  Does your partner agree?  The reality is that if you or if you are married, if you and your spouse pass away with minor children, SOMEONE will have to be named guardian for them.  Under Missouri law, anyone can file to become the guardian.  But what if you could have a simple document drafted where you said in advance who you wanted to be the guardian?  That is part of your estate plan.  It’s called a guardianship nomination and we can create the document by itself or make it part of your will.  The best part is that you can discuss it with your chosen guardians in advance, make sure they would accept and then plan for having alternates in case they can’t act.

#2  So you don’t own much, but chances are you own something.  

If you don’t own much, guess what?  You still need an estate plan.  The good news is that it’s a simpler plan.  Say you and your spouse have a home with about $25,000.00 in equity.  You have some small retirement accounts and a car.  Do you really want to have your family spend a lot of time, money and effort navigating their way through probate when you can devise a much cheaper option and have it ready to go in two weeks?  Probably not.  We can draft wills just in case you need them, but if your plan is to give everything to your adult kids equally and the kids get along, we can also probably tell you how to avoid probate easily and potentially without a will.

#3  Who will take care of you if and when you become incapacitated and/or disabled?

We don’t like to think about this, but we’re all going to get old.  Not one of us can avoid this fate and life changes.  But we don’t know when or how our lives will be in twenty or thirty or fifty years.  We just don’t know.  If you become incapacitated, however, life will move along regardless.  Bills will still have to be paid, tax returns must still be filed, banking will still have to be done and decisions and choices that we make every day (and take for granted) will still exist.  But who makes them if you can’t?  Answer:  If you get an estate plan, the agent named in your power of attorney.  Contrary to popular belief your spouse cannot make many decisions for you simply by reason of them being your spouse.  You need a power of attorney for that.  And we’ll plan for your spouse being incapacitated as well by naming alternates.  If you trust your kids (hopefully you do) then we can name them as alternates.  If not, we have a plan for that as well.

#4  Planning for disability / incapacity / health problems.  

If you become incapacitated you might have other problems.  Healthcare decision making.  Who will do that?  Answer:  Your agent as named in your healthcare power of attorney.  Say you’re in a coma for a long period of time, decisions have to be made, medical records have to be reviewed.  This is, of course, regardless of your financial status.  The document that allows this to happen is a healthcare power of attorney.  You absolutely need to have this document.

#5  Have an end of life plan.

Americans are living longer than ever before.  But not necessarily the greatest quality of life at the end of their life.  It’s tough to think about but in the age of Medicare, healthcare is about quantity not necessarily quality.  That could mean that near the end of your life a bunch of procedures are done that are not necessary or that cannot heal whatever health problem you have.  Part of any estate plan should be a living will / advanced directive.  In this document, you give a set of instructions to your healthcare power of attorney as to which treatments that you don’t want if you are terminally ill.  You’re not in that condition today, but by creating this document, you are planning for it in the future.  And the effect it has is that it lets your agent know that it’s okay to withhold these treatments.  Better still, it is not an all or nothing document.  There are provisions that allow you to keep trying treatments as long as they are making progress for you.  If not, then you have informed your agent so know they should be withheld.  No guesses need to be made and they’ll have peace of mind knowing that you went to the trouble of creating a legal document to make it clear what you wanted.  That’s powerful and it’s why you need a healthcare power of attorney and living will / advanced directive.




What are the fees for probate in Missouri?

What are the fees for probate in Missouri?

Probate involves several types of fees and costs, which fall primarily into four categories.

First is a bond premium.  The probate estate may have to pay for a bond for the personal representative (executor) to guarantee they will properly administer the estate.  This requirement can be waived, but if not it is one of the costs of probate in Missouri.

Second is the cost of publication.  A probate estate must publish notice to creditors announcing that an estate has been opened and that they have only so much time to make a claim against the estate.

Third are court costs.  Every estate must pay costs based upon the size of the estate being administered in probate.

Finally, the largest category of expenses and fees for probate in Missouri are a personal representative’s commission and attorney fees.  Missouri law provides a minimum fee schedule for each, which is based upon the size of the estate.  Compensation higher than these minimum amounts may be approved by the court or by consent of all distributees.

The fees are:

5 percent of the first $5,000

4 percent of the next $20,000

3 percent of the next $75,000

2.75 percent of the next $300,000

2.5 percent of the next $600,000 and

2 percent of everything more than a million

Now, you can start to see how expensive probate can get with this example…

Mary, a widow, dies with a will and an estate of $500,000.  Her son, Rich, is named the executor and since the matter is so complicated Rich hires Dave the Attorney to handle the matter in probate.  Now, based on the above, Rich AND Dave are each entitled to the following commissions:

$250 + $800 + $2,250 + $8,250 + $2,500 = $14,050 EACH for a total of $28,100, which does not include the cost of a bond, publication or court costs.

Now you can see why avoiding probate is a great idea, just on cost alone.  Not to mention the time, energy and aggravation of having everything in the estate up in the air for at least six months to more likely a year, if not longer.

The easiest and best way to avoid probate is to set up a revocable living trust.

money and probate

What happens if I don’t have a will in Missouri?

What happens if I don’t have a will in Missouri?

When you execute a will, you are deciding who gets your stuff when you pass away.  You get to name a person called an executor (in Missouri we call them a “personal representative”) who is going to make sure the stuff you want to go to certain people actually gets there.

Now, if you don’t have a will, the state of Missouri has what are know as intestacy statutes (to die “intestate” means to die without a will) and those statutes determine who gets your stuff, since you never made a will and wrote that down yourself.  Problem is, in not having a will you are allowing the state to dictate who gets your things and that may not be the same people that you want to have those things.

That is exactly why you want to have a will.  They sound fancy but in reality they really aren’t.

Another key aspect of a will for parents with minor children is that they can name guardians for their children in case they passed away.

What is the difference between a living will and a will in Missouri?

People often get confused with the differences between a living will and a will in Missouri.  As explained above, wills primarily deal with who gets your stuff when you pass away.   Living wills deal with end of life situations and what treatments you want withheld if a doctor determines that those treatments cannot heal you.  The purpose of a living will is to give instruction to your family as to what treatments you do or do not want done if you are near death, persistently unconscious or have a terminal illness.  And they have nothing to do with who gets your stuff!  However, they are two of the documents you need to have a complete estate plan.

last will and testament

Avoiding Probate in Missouri

Avoiding probate in Missouri saves time, money and sanity..

A primary goal of almost all of my estate planning clients is to avoid probate.  Probate is the process by which the assets of a decedent are administered through the courts.  Most of my clients know for sure they want to avoid probate but they are not exactly sure why.

The purpose of this article is to explain why probate should be avoided.

There are three primary reasons:  money, time and sanity.

I mention money first because probate is expensive.  Probate fees can include executor fees, attorney fees, court costs, bond costs and miscellaneous.  Executor and attorney fees are set by statute and are based on a percentage of the estate.  The larger the estate the higher the fees.  Court costs are relatively static but add up and can include filing fees, publication fees and service costs.  Here are rough cost ranges for different size estates:  $150,000 = $5,300 – $10,000; $300,000 = $9,400 – $18,200; $750,000 = $21,100 – $41,400; $1,000,000 = $28,600 – $55,100.

Again, to be clear, probate is expensive.

Time is another component of the probate process and if you ask most people that have endured the probate process they will tell you it takes a long time.   First, a probate cannot be filed until at least ten days after someone has passed away.  Once a probate is filed, the estate must be left open for at least six (6) months to allow creditors of the decedent to makes claims against the estate.

Practically speaking, however, most estates take much longer than six months and 10 days to close and that’s because the process can be extremely complex.  For one thing, the executor has to figure out what the decedent owned.  In some cases, the executor (and the attorney for the estate) will spend several months trying to track down all the assets and liabilities of the deceased.

The probate process is very detailed and often involves a lot of phone calls and lots of small steps that are time consuming.  That is why I mentioned the “sanity” aspect of probate, as in losing your sanity.  The complexity and detailed nature of probate drives people crazy.  Add anxious family members waiting on an inheritance and you can see why avoiding the process all together is the best investment of time and money and peace of mind a person can make.

So how can people avoid probate?

The best and most effective way is to establish a living trust.  Probate is necessary because when a person dies, the assets are in their name.  The probate process ensures that the assets of the decedent go to the persons named in their will or as decided by state law if they didn’t have a will.  It also ensures that the debts of the decedent are paid, to the extent they can be.

But the easiest concept to understand a living trust and how it avoids probate is to imagine a box.  The living trust is the box which you place all of your assets during life so that when you pass away there is nothing owned by you as an individual.  It’s owned by the trust and those trust assets are distributed according to the trust terms.  The debts of the decedent are paid out of trust assets, but not through probate.  Again, since the trust owns everything, there is no need for probate.

Trusts are a bit more expensive to create than wills on the front end.  But as we saw above, the back end costs of a will (in probate) are enormous.  Depending on the needs of the client, a trust is a terrific way to save your estate money, time and sanity.