St. Louis, Missouri 63105
Tel. 314 727-2585
Fax. 314 727-6376
LICENSED IN MISSOURI & ILLINOIS
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7751 Carondelet Avenue ♦ Suite 401
St. Louis, Missouri 63105 Tel. 314 727-2585 Fax. 314 727-6376 LICENSED IN MISSOURI & ILLINOIS |
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| PAMELA S. WRIGHT ♦ ATTORNEY AT LAW | |||
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What is probate? Answer : It is the court process whereby certain assets titled in the name of the deceased are transferred to his or her beneficiaries. This process takes place in the Probate Division of the Circuit Court – usually in the county in which the deceased permanently resided at the time of death. The Probate Division has been established primarily to protect the rights of one’s heirs, beneficiaries under a will and creditors, and to assure the orderly transfer of property. What is meant by the term “intestate” ? Answer : When one dies leaving a will, we say that the person died testate. If one dies without a will, the person is said to have died intestate. In the situation involving no will, the beneficiaries are the individuals named under Section 474.010 of the Missouri Probate Code. Is there a time limit when I should get the will on file with the Probate Division? Answer : Yes, you need to file the will or if the deceased was intestate, to get an estate opened within one year from the date of death. If more than one year has elapsed, then you need an attorney to file a Petition to Determine Heirs. Once an estate is opened in the Probate Division, how long does the probate take? Answer : The earliest that an estate may be closed and the assets distributed to the heirs or beneficiaries is approximately 6 months after the opening of the estate. However, it is unusual for all administrative duties to be finalized within that period of time. A good estimate for most probate estates is 7 to 10 months from the beginning to the closing date. What are the expenses incurred in the administration of a probate estate? Answer : The expenses usually encountered in the average estate fall into four main categories: (a) bond premiums for an indemnity bond to be purchased by the Personal Representative (also commonly referred to as executor) unless waived by the will, by all the beneficiaries or sometimes, by the Probate Division; (b) publication costs for two notices during the administration of each estate; ©) court costs and (d) fees to the Personal Representative and Attorney. How much are the Personal Representative and the attorney’s fees? Answer : The fees paid are based upon the size of the estate and the amount of work performed. Section 473.153 sets forth a minimum fee schedule for the Personal Representative and the attorney. These fees are based upon a percentage of the value of the personal property administered and of the proceeds of all real estate sold under order of the probate court. This percentage is based upon a graduated scale as follows: 5% of the first $5,000; 4% of the next $20,000; 3% of the next $75,000; 2.75% of the next $300,000; 2.5% of the next $600,000 and 2% of everything over $1,000,000. Frequently, family members appointed to serve as Personal Representative will waive their claim to fees. In smaller estates, the statutory minimum fee will not be enough to compensate the lawyer for the work involved. The lawyer may suggest an alternative, such as payment for work done on an hourly rate or perhaps a higher percentage than that provided by the statute. If the deceased did not leave detailed records regarding his or her assets, how can the Personal Representative find out about the assets? Answer : Once appointed by the Probate Division, the Personal Representative has a specified period of time to file an Inventory listing those assets owned by the deceased and subject to the jurisdiction of the Probate Division. However, if the Personal Representative believes that someone may be hiding assets or may have improperly disposed of them, the Personal Representative can file a Petition to Discover Assets against those individuals who may be holding/hiding the assets. Keep in mind that banks and brokerage houses are generally very cooperative in providing information to a Personal Representative so a Petition to Discover Assets would rarely be filed against a bank or brokerage house. Are records in the Probate Division open to the public? Answer : Yes. This is one of the reasons that individuals with substantial assets will frequently dispose of their assets through a revocable living trust. What is the difference between “supervised” probate administration and “independent” probate administration? Answer : Supervised administration is closely monitored: the Probate Division reviews and approves many actions of the Personal Representative and audits the annual accountings (also called settlements). Independent administration is more informal and eliminates the need for supervision by the Probate Division. An estate may be “independently” administered if so provided in the deceased’s will or if the beneficiaries consent. Is there an abbreviated version of the probate process for estates of less than $40,000.00? Answer : There are two forms of condensed probate proceedings set out in Section 473.090 (“Letters of Refusal”) involving estates of $15,000.00 or less and Section 473.097 (“Small Estates”) for small estates of $40,000.00 or less. The time frame is approximately 7-30 days for the Probate Division to issue the appropriate Orders once the required documentation has been submitted by the applicant. Most attorneys charge by the hour to handle these two types of probate proceedings. Do I avoid probate with beneficiary deeds, pay-on-death or transfer-on-death provisions? Answer : Yes. For example, if a single parent owns a house and wants to avoid probate but does not want to put the names of the children on the house title, an option would be to name the children as the beneficiaries on a deed to be recorded (during the parent’s life) in the county where the home is located. The parent would not have to get the consent of the children if the parent wanted to sell the house or change the names of the beneficiaries. Similarly, probate will be avoided if a beneficiary is named on a bank account through completion of a “ pay-on-death” beneficiary form or on a motor vehicle title through a “transfer-on-death” form completed through the Department of Revenue (Motor Vehicle Bureau). Keep in mind that these procedures are not intended to be an adequate substitute for a will since succession among the intended beneficiaries is difficult. Thus, it is recommended to consult an attorney before using these nonprobate transfers as your sole estate plan. How do I get access to the deceased’s safe deposit box to retrieve his or will? Answer : Generally, a request is made to the bank or trust company to do a will search of the box. If a will is found, the bank or trust company will either send the will to the Probate Division or give it to the family to file with the Probate Division. Is joint tenancy a good substitute for a will? Answer : No. A joint tenancy (or tenancy by the entirety if husband and wife) is not a “catch-all” and applies only to the specific property described in the document creating the joint tenancy. While a joint tenancy does provide for survivorship upon the death of one of the joint tenants and avoids probate at that time, no provisions are included for the disposition of the property upon the death of the survivor. A properly made will would take care of this uncertainty. Some of the other considerations: except for joint bank accounts, a joint tenancy cannot be revoked without the cooperation of the other joint tenant; creating a joint tenancy with someone other than your spouse may result in gift tax liability. What is a revocable living trust and will I avoid probate if I put my assets in trust? Answer : A trust is a written agreement that specifics how a person’s property is to be managed and during his or her lifetime and also upon death. A trust is considered a “living” trust when it is established during the lifetime of the grantor (the person who creates the trust) and is classified as a “revocable” trust when the grantor has reserved the right to amend or revoke the trust during his or her lifetime. Property held in a revocable living trust at the time of the grantor’s death is not subject to probate administration. Any property not held by the trust, however, would be probated in the procedure described above. So, if the grantor sets up the trust but fails to follow through and work with his or her counsel or financial advisor to get the assets transferred to the trust, the grantor has missed out on one of the main advantages to establishing the trust. If I have a revocable living trust, do I still need a will? Answer : Yes. The type of will accompanying a revocable living trust is frequently called a “pourover” will because the revocable living trust is named as the principal beneficiary. Thus, any property which the grantor failed to transfer to the trust during his or her lifetime is added to the trust upon the grantor’s death and distributed to (or held for the benefit of) the beneficiary in accordance with the terms of the revocable living trust. In addition to property being inadvertently not transferred to the trust, other situations can mandate a will with a revocable living trust: to name a guardian for minor children or to distribute any insurance settlement proceeds arising from a personal injury case filed as result of the death of the deceased. If I sign a Power of Attorney document, can the person I designate take charge of any assets in my probate estate? Answer : No because the death of the principal revokes a power of attorney. The Personal Representative named in your will (or appointed by the Probate Division of the Circuit Court, if you didn’t execute a will) is responsible for handling your assets in the probate estate. What is the difference between a Guardian and a Conservator? Answer : A Guardian is a person who has been appointed by a court (usually the Probate Division of the Circuit Court) to have the care and custody of a minor or an adult who has been legally determined to be incapacitated. A Conservator is a person or a corporation, such as a bank or trust company, appointed by a court (again usually the Probate Division of the Circuit Court) to manage the property of a minor or of an adult person who has been legally determined to be disabled. The same person is often appointed to both roles. |