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Whether There's A Will Or No Will...There's Still A Way!

If an individual dies owning assets in her individual name without a joint owner or a designated beneficiary, probate court is generally the answer to transfer those assets to the correct beneficiaries. In Missouri, there are several types of probate proceedings available depending on the size of the deceased individual's estate (i.e. probate assets less liabilities).

MORE THAN $40,000 IN ASSETS

If a decedent owns assets worth more than $40,000 in her individual name upon her death, then the probate court requires that an individual (personal representative named in the Will or relative) petition the probate court to probate the Will (if one exists) and to be named as the personal representative of the estate with the responsibility of gathering the deceased individual's assets, paying creditors and ultimately distributing any remaining assets to the decedent's legatees (if there is a Will) or to the decedent's heirs/family (if there is not a Will). Generally, the probate court requires the personal representative to obtain a court order prior to acting (i.e. to sell property or distribute assets); however, Missouri does allow independent administration which is less restrictive and generally requires the filing of an inventory and a final settlement. The court reviews the petitions and if acceptable, issues Letters Testamentary (if there is a Will) or Letters of Administration (if there is no Will) appointing the individual as Personal Representative. The court then arranges publication in a legal periodical notifying creditors that the estate has been opened and includes information on where to file a claim.

Creditors have until the earlier of six months from the initial publication or one year from date of death to file claims. Missouri law dictates which creditors have preference if debts exceed assets. The final settlement cannot be filed until after the claim period has expired and is generally not filed until after one year. Further, unless waived, the personal representative must arrange for final publication to notify creditors and beneficiaries that the estate will be closed and distributed. Once the final settlement is filed with the court, the personal representative can distribute any remaining assets and file final tax returns, if any.

LESS THAN $40,000 IN ASSETS

If a decedent owns assets worth less than $40,000 in her individual name upon her death, then the court will allow an individual (personal representative named in the Will or relative) to file an Affidavit of Collection of Small Estate. This Affidavit lists the assets of the decedent and the legatees or heirs entitled to receive her property. If approved, the court then issues a certificate and the individual (affiant) can collect and if necessary liquidate the property of the decedent to pay creditors and distribute the remainder to the legatees/heirs. The court will provide for publication if the estate is worth more than $15,000.

LESS THAN $15,000 IN ASSETS

If a decedent owns assets worth less than $15,000 and there is no surviving spouse or unmarried minor children, a creditor can file for refusal of letters and post a bond with the court. The court will then enter an order obligating the creditor to pay, so far as the assets of the estate will permit, the debts of the decedent in the order of their preference, and to distribute the balance, if any, to the legatees/heirs. The creditor then uses this order to access the assets.

Finally, a surviving spouse and/or unmarried minor children may also apply to the court for Refusal of Letters if the decedent owned assets less than the amount allowed as exempt property and maintenance for one year for the surviving spouse and minor unmarried children. This amount may be different in each county so it's best to consult with an experienced probate attorney.

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Herzog Crebs Attorneys at law

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