Probate: Question and Answer

What Is Probate?

Probate is the legal procedure in which the validity and authenticity of a will are established. Probate refers to the administration of a deceased person's will or estate without a will. When an asset-holder dies, and there is a will (testate) in place that designates an Executor/Personal Representative, then that person administers the probate process. If there is no will (intestate), then the court appoints an administrator to fulfill this role instead. Asset transfers are the final stage of administration when the Executor/Personal Representative begins to distribute assets to beneficiaries. This includes collecting the decedent's assets to pay off any liabilities that remain on their estate, file and paying taxes, and distributing the assets to beneficiaries.

How long does probate take in Missouri?

Probate, the process of finalizing a deceased person's property after his or her death, will take at least six months. Although it frequently takes much longer, because creditors must file a claim against the estate within that six month period. The Executor/PR must review and approve or deny a claim once it has been filed.

Is probate mandatory in Missouri?

Is it necessary to probate a will in Missouri? A will must go through the probate process in Missouri. This involves filing the document with the county court where the deceased person lived at the time of their death so that a judge can confirm its validity.

How long do you have to file a will after death in Missouri?

A previously delivered will must be opened by the court within 30 days after the testator's death, under Missouri law. Mo. Rev. Statutes 474.510 says that a will must be filed with the court within 30 days after the testator's death. A decedent's will should be filed in probate court by the person named as the Executor/Personal Representative.

Is It Necessary To Hire An Attorney For Probate In Missouri?

Yes. In Missouri, you must have an attorney for probate. Here's why: State law demands it in the first place, and there are a few more reasons that follow. An independent personal representative (executor) in Missouri must "secure the counsel and services of an attorney" on legal issues connected with probate estate administration, applying for letters testamentary or administration, preserving estate assets, inventorying the probate estate, dealing with creditor claims and their payment or resolution, filing of tax returns, making distribution, and closing the estate under RSMo. 473.787 (3).

Secondly, it is beneficial to open a probate estate with the assistance of a probate attorney. The process of administering and closing an estate can be quite complex. That's an important consideration. Furthermore, probate situations can be emotionally distressing for families. Being the executor of a will is a big responsibility, and it can be emotionally charged if you were close to the person who passed away. You might feel pressure to take care of everything quickly.

Furthermore, you must keep in mind that you have a " fiduciary duty to the persons interested in the estate" (the heirs or beneficiaries).  You shouldn't take on estate responsibilities by yourself because, if you botch something and then claim later that you weren't fit for the job, you could be held legally and financially responsible for any mistakes. Without the necessary information, a person who is in charge of an estate is already in violation of their fiduciary obligations.

What happens if you don't file probate in Missouri?

Under Missouri's Trust and Estate Law and Probate Code, no one has to be the executor; instead, they must choose to do so. That said, the original, signed last will must be submitted to the probate court in the county where the person died. For example, in Chesterfield, Missouri, the St Louis County Probate Court would be the proper venue. A probate administration and Will must be filed within one year of the decedent's date of death. If the will is not filed with the Probate Court within a year of the owner's death, it becomes invalid.

What happens if probate isn't applied for?

If you don't apply for probate when it's required, the deceased person's assets can't be accessed or transferred to any of the beneficiaries. Probate is a legal process that gives a specific individual control over the assets. They can't do anything with them without it.

Can property be transferred without probate?

Yes, while alive, a person may take action with their property titles or rules of various agreements to avoid probate, such as:

  • Gifting property while alive;
  • Establishing a living trust and funding it with property;
  • Right of survivorship on joint accounts;
  • Designating a pay-on-death (POD) or transfer-on-death (TOD) beneficiary designations; and
  • Life insurance or retirement accounts (IRAs) with named beneficiaries.
Will the Estate be Taxed?

Though Missouri does not have an estate tax, Missourian's may be subject to the federal estate tax if their estate is valued at a certain amount. If your estate meets the requirements, the government will then place a levy on it. For deaths in 2021, the exemption is $11.70 million. In 2022, it will be $12.06 million. The federal estate tax's portability feature allows for a married couple to protect up to $24.12 million of their estate.

If the value of an estate is greater than the exemption amount, it will be subject to a progressive estate tax, with a top rate of 40%.

Missouri does not have an inheritance or gift tax. For 2021, the federal gift tax exemption is $15,000 per recipient, rising to $16,000 in 2022. If you give more than $16,000 to one person in a single year, you must disclose the gift on your tax return. The amount over $16,000 is netted against your $12.06 million federal gift tax exemption.

Who typically pays for funeral expenses?


The people named in the decedent's will as executors (or, if the decedent didn't make a will, their nearest relatives) are primarily responsible for planning and paying for the funeral.

Can you use a deceased person's bank account to pay for their funeral?

If you need to cover funeral costs, you may be able to access money from the deceased person's bank account. Most banks have policies in place to help with these expenses, so reach out to your branch for more information.

You may also need to apply for living expenses access until a social welfare payment is granted. There are several financial aid options available to help families during this stressful period.

Money in bank accounts

If the assets are in the estate of a deceased person, family members usually cannot access them until probate is granted to the personal representative. However, if the sum in an account is minimal, the bank may release it to the personal representative or next of kin.

Bank accounts in joint names

If the bank account is under both the deceased individual and their partner's name, the money can generally be transferred into the surviving spouse or civil partner’s name. The death certificate will be required for this process.

If a bank account is in the joint names of the deceased person and another individual, and that upon opening the account, the bank was given specific instructions that the latter individual was to receive its contents upon death of the former, then said other can have those funds transferred into their name.

What happens if there is no money to cover a funeral?

If the deceased does not have enough money in their bank account or estate to cover funeral costs, and they did not plan ahead with a funeral plan, then the family would normally be responsible for paying.

How long can you keep a deceased person's bank account open?

When a bank account holder dies with assets that are insured by the Federal Deposit Insurance Corporation (FDIC), his or her FDIC coverage lasts for six months after death.

Who is in charge of filing taxes for a deceased person?

The personal representative of an estate is the executor, administrator, or anyone else who manages the decedent's property. This person is responsible for filing any final individual income tax return(s) and the estate tax return when it becomes due.

Are banks informed when someone passes away?

Generally, family members or next of kin notify the bank when a client passes. It can also be someone who was appointed by a court to handle the deceased's financial affairs. There are also times when the bank learns of a client's passing through probate.

Who is responsible for notifying Social Security when someone dies?

The funeral home

The funeral home will contact Social Security after the person passes away. If you'd like them to do so, please provide the deceased individual's Social Security number. To report a death or apply for any benefits, reach out to Social Security at 1-800-772-1213 (TTY 1-800-325-0778).

Can the IRS force me to pay my parents' debts?

It is your responsibility to pay any money that your parents might owe the government if they were to pass away. This includes money owed to the IRS, which can and will come after you for payment.

What happens if you don't file a deceased person's taxes?

If you don't submit taxes for the deceased or the estate soon, the IRS can place a federal tax lien on your property to pay the deceased's income tax before other obligations are paid. The IRS may utilize the lien to collect money if the person died owing more than the estate could afford.

Who is the legal owner of property during probate?

When Assets Pass Through Probate. After a person dies, his or her assets must go through a court-supervised probate procedure because only probate can transfer the asset from the deceased owner's name to the names of the beneficiaries.

Who legally owns a house before going through the probate process?

More often than not, if there is a house involved in an inheritance, the surviving spouse will be the first to inherit it. A possibility is that the house will be sold and once creditors have been paid off, the funds will be distributed among the heirs. This scenario usually happens when no heir wants the property or when there are more debts than liquid assets.

Could a home be sold before probate is finished?

In short, yes– if the property in question was only owned by the deceased, then a Grant of Probate will be necessary before any legal sale can commence. However, you can market and list the property for sale as well as accept offers prior to probate being granted.

How much time do you have to file taxes for someone who died?

The final tax return for a person who passed away in 2021, for example, would be due by April 18, 2022-- the filing deadline of the year following their death. If you require more time to file, you can utilize IRS Form 4868 to automatically extend the deadline.

Can the executor of an estate sell a property that is in probate?

An Executor is authorized to sell property belonging to the deceased person as long as there are no surviving joint owners or provisions in the Will that ban such sales.

What can you do while waiting for probate to be processed?

While you wait for probate, you may always use the time to get ready to clean out a deceased parent's house when the moment arrives.

Consider three Categories:

  • Save
  • Give away
  • Dispose
Is it true that I can sell a vehicle before probate is issued?

You don't need to wait for a grant of probate or letters of administration to transfer or sell a car--it is classified as a chattel.

Is it possible to sell my late mother's house without going through the probate process?

Receiving Probate is essential when somebody passes away, as executors cannot legally sell a property before then. The only exception to this rule is if your name is already on the title deeds.

Why do houses go through probate?

If a house is held under only the deceased person's name, then their probate must be settled before it can be sold. However, if the house was held as joint tenants and the surviving co-owner wishes to sell it, they may do so with a copy of the death certificate.

Is it possible to sell a home while it is in probate?

The probate process allows for either the property to be transferred into the name of the beneficiary, called an assent. Or, the property can be sold with the beneficiaries receiving what remains after debts and charges are paid off.

What happens when multiple siblings inherit a house?

Without an explicit statement in the will, siblings who inherit a house together own equal shares of the property. The siblings can decide among themselves whether to sell the house and split the money, have one person buy out everyone else's share, or continue owning it together.

What probate hearing questions are generally asked?

At a probate hearing, the judge may inquire about the following: Who are the beneficiaries of the estate? Are you now aware of the estate's assets and valuations? Have you served notice on the beneficiaries or given consent to probate administration?

What Is a Personal Representative?

The executor or administrator of an estate is a personal representative, also known as a legal personal representative. Personal representatives act as fiduciaries for the beneficiaries of estates and are obligated to act in good faith, with honesty, loyalty, and candor, and in the best interests of the estate's beneficiaries. Personal representatives must follow the provisions of the deceased person's will (assuming that there was a will). The personal representative will serve as the intestate estate administrator if the deceased person died intestate.

  • A personal representative or legal personal representative is the executor or administrator of a person's estate.
  • Representatives act as fiduciaries for estate beneficiaries and are required to act in good faith, with honesty, loyalty, and candor, and in the best interests of the estate's beneficiaries.
  • When carrying out the duties of a deceased person's estate, a personal representative is responsible for handling funeral arrangements, contacting beneficiaries about their inheritance, and appraising the estate property minus any debts.
  • In most cases, a personal representative is someone close to the deceased or a friend.
  • Because of the largesse of work required, a personal representative is due payment by the estate typically matching the Probate Attorney.
Personal Representative - Role & Responsibilities

A personal representative has a wide range of duties. As a result, there are both benefits and drawbacks to taking on this responsibility. Being tasked to serve as a personal representative is something many people consider an honor. Executing a will necessitates a significant amount of time and effort. One of the most significant drawbacks associated with being an executor is the amount of time it takes to properly manage the duties.

An executor is responsible for distributing all parts of a deceased person's estate. This might include real estate, belongings, and assets. The business of untangling trusts, children, or annuities if an estate is huge or there are uneven distributions to kids may be extremely difficult and time-consuming. There may be fights between co-executors, as well as disputes among heirs. Executors must be organized and detail-oriented, and they must be ready to invest a significant amount of time in the position. If you feel that you will not be able to do the job properly because of a lack of experience or knowledge, it might be preferable to pass on the role of personal representative, even if you are flattered to have been chosen. Many individuals are compelled to accept the role of executor even though it is a larger decision than they believe.

Being a personal representative entails a lot of activity in a short period of time. It can be aggravating, especially if beneficiaries bicker over the inheritance or contest the will. In addition, because personal representatives are generally personally responsible for any beneficiary fraud or mismanagement claims, they are often personally liable.

A personal representative is allowed to receive a commission for fulfilling their duties, and Executors are additionally entitled to compensation for any expenses related to carrying out their responsibilities.

Fiduciary Duties Explained

If the executor of an estate does not adequately complete assigned tasks, he or she can get sued.When executing an estate plan, the law puts a rather high standard on the responsibilities of an executor. When settling an estate plan, the executor has a fiduciary duty to the estate and its beneficiaries. A fiduciary is someone in a position of trust or authority, and the law recognizes this and places an added duty on that individual to act honestly, fairly, impartially, equitably, and loyally. When making decisions about the distribution of an estate, an executor must put the interests of beneficiaries and the estate first.

A fiduciary becomes legally liable if they fail to perform their duties set by law. For example, a beneficiary who loses out on potential income because of an improperly managed estate may sue the executor for breaking their fiduciary duty agreement.

Executor Legal Duties

An executor's responsibilities include notifying creditors, paying debts, gathering assets, preparing and filing tax returns, distributing assets, and closing the estate. At all times, the executor must track and distributes assets according to the law and will's provisions.

If an executor is deceptive, unfair, or negligent in their actions--such as delaying payment to beneficiaries or hiding assets--it can result in litigation.

A Breach of Fiduciary Duty

Beneficiaries who have been harmed by the actions of an executor are frequently forced to sue in order to protect their rights. However, if a fiduciary has failed in his or her responsibilities, it is often the beneficiary's only choice to safeguard their interests.

How Can I Find Out if I'm Named in a Will?

How can I tell if I am receiving anything from an estate? Almost always, the executor (or their lawyer) will reach out to people listed as beneficiaries in a will to let them know they're being left something.

A person's will becomes a part of public record after their death and can be found, alongside other probate records, in Missouri county probate courts. Depending on the county, people looking for a will or other probate documents may either have to search online or visit the courthouse in person.

In Missouri, the clerks of the probate courts have typically recorded probate matters, but in certain counties, the common pleas or circuit courts took on this responsibility. Wills and administrator bonds are among the documents preserved.

Who Are Heirs When There Is No Will or Trust?

If you die without a will in Missouri, your property will be distributed according to state "intestate succession" rules.
If you die without a will, state law determines who gets your property. It all depends on whether or not you have living children, parents, or other close relatives when you die. Here's a quick overview:

When you die with: ==> Here’s what happens.

  • children but no spouse ==> children inherit everything
  • spouse but no descendants ==> spouse inherits everything
  • spouse and descendants from you and that spouse ==> spouse inherits first $20,000 of your intestate property, plus 1/2 of the balance, descendants inherit everything else
  • spouse and descendants from you and someone other than that spouse ==> spouse inherits 1/2 of your intestate property, descendants inherit everything else
  • parents and siblings but no spouse or descendants ==> parents and siblings inherit your intestate property in equal shares
  • parents but no spouse, descendants, or siblings ==> parents inherit everything
  • siblings but no spouse, descendants, or parents ==> siblings inherit everything

If you die without a will and have no family, your property goes to the state. However, this is unlikely to happen because the laws are typically designed to give your belongings to anyone who was even remotely related to you.

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