- posted: Aug. 21, 2018
There are a number of different, varying and sometimes complicated provisions of Missouri law that can affect what happens to assets and property after someone’s death. For these reasons alone, it is always advisable to speak with a Missouri Probate attorney sooner rather than later following a death of a family member or loved one.
If a Missouri resident dies and leaves a written Will, there are a number of things to consider. At the very least, Missouri statute requires that an original Will of a decedent be delivered to the Probate Court in the county where the decedent resided at the time of his death. However, the mere delivery of the Will to the Probate Court won’t give the Will any legal effect. Instead, the Will must be admitted to Probate to have any legal effect. A Missouri Probate attorney can assist with making the formal application or request to have a Will admitted to Probate. That action must be taken within one year of the date of death. Only the Order of the Probate Court in admitting a Will to Probate can give any of the wishes of the maker of the Will any legal effect.
A Will of a decedent generally does not have any effect on an asset owned by a decedent at the time of his death for which the decedent made a valid beneficiary designation. Missouri law calls this a Non-probate Transfer beneficiary designation. If such a beneficiary designation was made by a decedent, and that beneficiary survives the decedent, the asset passes to the beneficiary without any action by a Probate Court and regardless of what the decedent’s Will might provide. A Missouri estate plan attorney can assist someone in understanding how to take advantage of Missouri Non-probate Transfer law. Special rules apply to certain assets, such as ownership interests in small businesses and real estate. A Missouri estate plan attorney can help to make sure that an owner’s interest in a small business or real estate passes to the appropriate beneficiary.
If the decedent made a valid Trust, and if an asset was placed in the Trust either before or after the death of the decedent, the terms of the Trust will decide what happens to that asset. In fact, if a Trust exists, the Will of a decedent normally names the Trust as the beneficiary to receive the asset, with the terms of the Trust then controlling the distribution of assets.
The Will of a Missouri decedent will affect only an asset owned solely by a decedent for which no beneficiary designation was made. Such an asset will almost always require some further action in Probate Court. The type of action needed depends on the cumulative value of any such assets owned by the decedent. In some instances, a special, expedited, Probate Court procedure is available to a surviving spouse of a decedent. Another expedited Probate Court procedure is available if the total value of assets requiring Probate Court action, minus the amount of liens, debts and encumbrances, does not exceed $40,000 (often referred to as a A Small Estate Affidavit proceeding). Otherwise, a full decedent estate administration is most likely required. An experienced Missouri Probate attorney can assist in reviewing the assets of the decedent to determine the most effective Probate Court procedure to elect.
If a Will of a Missouri decedent is not formally admitted to Probate by the Order of a Probate Court within one year of the date of death, it is of no legal effect, and the laws of the State of Missouri will decide what happens to the decedent’s estate. A Missouri Probate attorney can assist in determining the legal heirs of a decedent in the event there is no Will or no beneficiary designation on assets of a decedent.
Generally, a full decedent estate administration in Missouri must be commenced within one year of the date of death. Some other Probate Court procedures can be commenced more than one year after the date of death. For example, a Small Estate Affidavit proceeding can be commenced more than one year after the date of death. Also, if no Will was admitted to Probate Court within one year of the date of death, and if the total value of assets exceeds $40,000, another Missouri Probate Court proceeding might be available to clear title to the legal heirs of a decedent. Such a Missouri proceeding is often referred to as a A Petition to Determine Heirship. Again, a Missouri Probate attorney can assist in determining what Probate Court proceedings will be most effective.
By: Cary L. Hansen
DID YOU KNOW ? is presented by Williams, Robinson, Rigler & Buschjost, PC as a public information service only. None of the information contained herein is intended to be taken as legal advice. Each matter depends on unique facts which attorneys must consider in forming an opinion, and may depend on laws unique to a particular jurisdiction. No two cases are the same. If you want to know more about this subject, contact Williams, Robinson, Rigler & Buschjost, PC, or the attorney of your choice, and seek a formal opinion about your particular case.
Williams, Robinson, Rigler & Buschjost, PC provides legal services in South-Central Missouri, serving Maries County (including Belle, Vienna & Vichy), Crawford County (including Cuba, Steelville, Bourbon), Dent County (including Salem, Lecoma, Bunker), Phelps County (including Rolla, St. James, Newburg, Doolittle, Edgar Springs), Texas County (including Licking, Houston, Raymondville, Summersville, Cabool), Pulaski County (Waynesville, St. Robert, Richland, Dixon, Crocker) and may provide legal service in other locations on request.