29
Mar2021

TOP 5 MISSOURI PROBATE MYTHS…

  • By Legacy Law Center
  • 236

TOP 5 MISSOURI PROBATE MYTHS

                           There are at least a dozen or so pervasive myths related to Missouri Probate cases.  This article discusses the top 5 Missouri Probate myths.  These are myths that as a St. Charles County probate lawyer I see all the time.

MISSOURI PROBATE MYTH # 1:   YOU HAVE UNLIMITED TIME TO FILE A WILL IN A MISSOURI PROBATE

False.  Under Missouri law, a last will and testament is considered invalid one (1) year after date of death.  By invalid, I mean it cannot be filed and the decedent is considered to have died without a will, or have died what is known as intestate.  Is this a big deal?  It can be a huge deal because when a person dies intestate in Missouri, who gets the property under Missouri law could be different people who were listed in the will document.

Example:  Tom is married to Tina and he has two young children, Tommy and Tammy with Tina at his death.  He leaves a will that leaves everything to his wife Tina.  He dies and the will is not located until one year after he dies.  The will no longer controls, the intestacy laws do.  Under those laws, Tina is not the sole heir.  The minor children get a portion of the state, which in this case means Tina would get the first $20,000 in assets plus only half of the rest of the estate.  The other half would be distributable to the minor children in equal shares.

See: https://law.justia.com/codes/missouri/2005/t31/4740000010.html

MISSOURI PROBATE MYTH #2: YOU SHOULDN’T FILE THE WILL IN A PROBATE UNLESS THERE ARE ASSETS REQUIRING PROBATE

False.  In almost all cases, it is important that the surviving spouse or next of kind file the last will and testament of the decedent.  Why?  Because often nothing seems to need probating until well after the person is died.  For example, Tom dies and everything he owns is in joint tenancy with his surviving spouse, Tina.  Eleven months after he dies, Tina gets a check payable to the “Estate of Tom” from Tom’s employer.  The check is the liquidated value of Tom’s accrued and unused vacation time.  In order to negotiate the check, Tina would have to file an Application For Spousal Refusal Letters.  This is a streamlined procedure where only the surviving spouse can receive an order in which a probate is now opened but they can obtain up to $40,000.00 in assets requiring probate, but without opening a probate.

See:

https://www.courts.mo.gov/hosted/circuit11/Documents/Application_Spouse_Refusal_Letters_NewVersion%201.0.pdf

MISSOURI PROBATE MYTH #3:  PROBATE IS EXPENSIVE IN TERMS OF COURT COSTS

Mostly false.  Under Missouri law, a probate must be filed in the Missouri county where the Decedent was residing at the time of their death.  This is usually determined by the Death Certificate, although there are often arguments that the residence county listed on that document is incorrect.

Nevertheless, there is a real worry about the court costs for needing to proceed through a Missouri probate.  This is mostly a myth and here’s why:  1.  There are two primary costs owed to the court stemming from the opening of a Missouri probate.  2.  The first is the filing costs, which in most cases is less than $250.00.  Sometimes that cost includes the publishing of notice of the death of the decedent.  Often it does not.  Where it doesn’t this cost is usually under $200.00 by itself.  The second cost incursion with a probate filing in Missouri is the inventory fee.  This fee is mated to the value of the estate.  A $100,000.00 estate or lower will usually have an inventory fee of $100.00 and goes up usually a $100.00 or so per additional $100,000.00 in estate assets.  All tolled, you are usually looking at $500.00 or so in costs for a $200,000.00 estate.  Nothing to sneeze at, but not necessarily expensive.

MISSOURI PROBATE MYTH #4:  PROBATE REQUIRES CONSTANT ATTENDANCE AT HEARINGS AND FILINGS OF PETITIONS TO ALLOW THE PERSONAL REPRESENTATIVE / EXECUTOR TO ACT

Mostly false.  Missouri probate comes in two flavors:  supervised probates and unsupervised probates.  The terms of the will, if there is one, will often allow for an unsupervised estate.  An unsupervised estate essentially allows the executor to take whatever actions with estate assets as is needed without permission from the court.  It’s a very hands off process.  Even the accounting procedures to close out a Missouri estate can be waived if all the heirs / beneficiaries agree.

With a supervised estate, the executor has to get an order from the probate court to take certain actions.  For example, if an executor needs to sell the estate home, the probate court would have to be petitioned for the reasons to do so, specifics about the value of the home, any defects and information about who will be hired to sell the estate home and at what price given market conditions.  In other words, a 180 degree difference compared to an unsupervised estate.

So what determines whether a Missouri probate estate will be supervised or unsupervised?  If there is a will, it will often say.  If the will allows for an unsupervised estate, it can proceed that way.  If it doesn’t, an unsupervised estate, in most cases, can be opened if, and only if, all the heirs / beneficiaries agree and consent.

To be sure, an unsupervised estate makes sense where there is no tension between the executor and/or heirs / beneficiaries.  In some cases, clients who expect a war over their property when they die may feel peace of mind by requiring a supervised estate.  In many cases, an unsupervised estate is preferable where family members are fighting and at odds.

MISSOURI PROBATE MYTH #5:  CREDITORS CANNOT COME AFTER THE ASSETS OF THE DECEDENT IN PROBATE, THEY MUST DO SO WHILE THE PERSON IS LIVING.

This is absolutely false.  As a St. Charles County probate law firm, Legacy Law Center advises executors how to deal with creditors.  That’s because one of the purposes of probate is to announce the death of the person so that legitimate creditors can be paid back what they are owed from the person who passed away.

Example:  Tom and Tina are married when Tina dies.  Tina had a real problem with credit card debt in the last few years of her lives, even to the extent Tom didn’t know about it.  All cards used by Tina were in her name alone.  At her death, the combined balance on her credit cards is $50,000.00.  Unbeknownst to Tom, Tina had also established her own checking account with $100,000.00 as the balance when she passed.

What happens?

Well under Missouri law, Tom is not personally liable for the credit card debt because he was not on the account.  The only recourse for the credit cards companies is if there is an estate that needs to be opened.  All of their marital assets held in joint tenancy go to Tom at Tina’s death.  However, the individual bank account must be probated because only Tina’s name was on that account.  Therefore, the creditors have claims they can make in the estate against those funds.

Tip:  Ask your Missouri probate lawyer how creditor claims can sometimes be avoided based on when the estate is opened.  In many cases our firm has shielded creditors from assets they may have had claims too by advising surviving spouses / family members when to open the probate estate.

CONCLUSION

The Missouri probate process is complex and takes a great deal of time. These Top 5 Missouri Probate Myths can only make this process more difficult.  It’s best to have an experienced estate planning attorney St. Charles create the necessary documents to avoid this entire whole situation entirely.

Charles J. Moore is the founder of Legacy Law Center, a law firm that has received many awards for customer satisfaction in the areas of estate planning and probate administration.  His firm was most recently named a Top Ranking Estate Planning Law Firm in Missouri for 2021 by the American  Association of Attorney Advocates.  He is rated as Excellent by legal website Avvo and his firm has a 4.9 out of 5.0 star rating on Google.