Small Estate Procedure

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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:  http://www.moga.mo.gov/mostatutes/stathtml/47300007871.html), 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.

Missouri Probate: The Small Estate

Missouri Probate: The Small Estate

MISSOURI PROBATE:  THE SMALL ESTATE

If you are familiar with the term probate, you may know it almost as a vulgarity or a swear word, rather than the process by which a dead person’s assets are administered through the courts.  The Missouri probate process, however, offers some relief in cases where the assets of the estate are limited.  This is called the Small Estate Procedure and it offers a less complicated and streamlined process for administering an estate in Missouri.

There are a couple of qualifications that must be met in order to use the small estate procedure.  First, this is generally only allowed when the total value of property is less than $40,000 (after debts are paid).  Second, the small estate procedure is generally best for members of the decedent’s family other than the spouse or minor children, i.e. adult children and other relatives.  Surviving spouses and minor children have better and even more efficient options available to them, most notably refusal of letters.

Other conditions must be met:  thirty days must have elapsed since the person’s death and no application for letters testamentary or for administration or for refusal of letters is pending or has been granted.  Additionally, a bond in an amount of not less than than the value of the personal property must be filed and the bond is conditioned upon payment of decedent’s debts and funeral and burial expenses, compliance with court orders regarding decedent’s estate; and delivery to the property persons any assets which the distributee is not entitled.

Any and all fees must be paid to the clerk of the court.  Finally, where the estate is worth more than $15,000, notice must be published for creditors and such notice advises them that their claims against the estate are barred unless filed within one year of the decedent’s death.

The basis of the small estate procedure filing is an affidavit confirming certain information about the estate, the decedent and the people entitled to inherit.

All of this sounds overly complicated and it is for non-lawyers.  However, an experienced probate attorney cannot only confirm that the small estate procedure can be utilized in a given situation but can put together all of the information necessary to do so.

The small estate procedure is cheaper to file, cheaper to hire an attorney to assist you with the process.  It’s cheaper and best of all, allows for a quicker open and close of an estate versus a regular probate in Missouri, which cannot be closed for at least six months and 10 days after the death of a person.