FIVE WILL TERMS TO KNOW
There are many confusing terms that can be found in a given last will and testament. As a wills attorney St. Charles, Missouri, I always review the terms of a will with my client, so they understand the terminology and the different provisions in the document.
This article discusses and explains five (5) terms commonly found in a will.
#1 PERSONAL REPRESENTATIVE
A person named in a will to manage an estate is commonly referred to as an executor. In Missouri, this person is formally called a personal representative, if there was a will when the person died. If there is not a will, the executor is an appointed position and the person appointed is referred to as an administrator. Simply stated, the requirements of each position is the same but the names are different.
Generally speaking, the personal representative is responsible for filing the will if it is required in probate court, for contacting beneficiaries named in the will and for “marshalling” (gathering and securing) the assets of the estate. Personal representatives can be paid or not paid, depending on what the will states.
A beneficiary is a person who is to receive property of the decedent under their will. A contingent beneficiary is someone who may receive property of the decedent if an event occurs, often the death of the primary beneficiary. The term “heir” is often used interchangeably with the term “beneficiary” and while they both are people who are to receive the assets of a decedent, the circumstances by which they get there are different.
An heir is a person who receives property by reason of the person who died not having a will and who left survivors. In such a circumstance, the heirs have to be determined according to Missouri statute.
Here is the link the Missouri intestacy statute: https://law.justia.com/codes/missouri/2005/t31/4740000010.html
A testator is simply the term for a person who creates a will. Technically, a testator is a reference to a male and a testatrix is the term for a female, although, to be honest, I have not seen the term testratrix used since law school.
#4 UNSUPERVISED PROBATE
Under Missouri law, a probate can be unsupervised or supervised. The former is much less complicated as the court does not have to approve much of what the executor does, which, as opposed to a supervised probate, allows probate assets in Missouri to be dealt with much more quickly. An unsupervised probate can be mandated under the terms of the will of a decedent. If it isn’t, one can be consented to by all the beneficiaries if they are agreeable.
#5 CREDITOR CLAIM
One of the primary goals of a probate is not only to figure out who gets what in a decedent’s estate but also to allow creditors of the decedent to make claims against assets in the estate. For example, if a person dies in Missouri with say $20,000 in credit card debt, when the estate is opened, the credit card company has six (6) months to file a creditor claim against the decedent’s estate.
This is simply a filing in the probate where the creditor provides proof of the debt. The estate may challenge the creditor claim, but generally speaking, any legitimate creditor claims must be paid (or otherwise settled outside of the probate) before the probate can be closed and the assets distributed to the beneficiaries / heirs of the estate.
Because often people pass away having significant assets and at the same time having significant debts, it is imperative that a probate attorney St. Charles discern the extent of a decedent’s debt before filing a probate to ensure there are adequate assets to even make it worthwhile to open a probate estate. In some circumstances, it might be advisable to wait a year to file, because after a year the debts of a decedent are no longer valid. Thus, sometimes it makes sense just to wait until all debt is invalid and then file. The one caveat to that is the procedure changes to what is known as a Petition for Heirship.
In a Petition for Heirship, the will is no longer valid (under Missouri law a will must be filed within a year to be considered valid) and the court must hear evidence related to the decedent’s assets in order to make a ruling regarding the heirs of the estate and what assets they are entitled to.
A last will and testament is the cornerstone of any estate plan. And while they make look uncomplicated compared to a living trust, the terms of the will, as with a living trust, control everything. It’s also important to remember that unlike most every other document, in order for someone to file a will in Missouri, they must file the original.