What is probate and is probate necessary?
Probate is a court process to transfer legal title of property when a person dies. Probate is necessary when a person dies with assets solely in their name with no beneficiary designation. Probate also serves to allow creditors of the deceased to seek and collect payment of debts owed.
In addition to decedent estates, the Probate court also handles guardianship and conservator matters.
What happens if you die without a Will?
A person who dies without a Will, dies intestate. This means, the intestacy laws of the state where the person resided at death will determine how the decedent’s property is distributed.
How can I avoid Probate?
A common misconception is that having a Will avoids probate. This is not the case. So, how do you avoid probate?
Establish and fund a revocable living trust. Any asset properly held in a revocable living trust when a person dies will transfer according to the terms of the trust agreement and avoid the necessity of probate.
Establish joint tenancy (two or more individuals owning property together). When one owner dies, the surviving owner(s) automatically receives the property, without the necessity of probate. This is called a “right of survivorship.” Similarly, property owned by married couples as tenants by the entirety avoid probate upon the death of a spouse.
Name a Beneficiary by way of a Transfer on Death (TOD) or Payable on Death (POD) Designation. Bank accounts, retirement plans, vehicles, life insurance, securities, and other assets allow a beneficiary (both primary and contingent) to be designated. If the owner of property named a beneficiary during their lifetime, at death, the property will transfer to the person named as beneficiary without the need for probate.
Gift property during lifetime. This is a simple way to avoid probate, however, has its drawbacks. Depending on the amount gifted, federal gift taxes may apply. Gifting property may disqualify a person from qualifying for Medicaid for a specific time period. Also, once property is gifted, you no longer have the right to use and enjoy the property.
The best way to avoid depends on your own family and financial circumstances. Attorneys at Wibbenmeyer Iannelli Law, LLC are able to assist you with avoiding probate and giving you and your family peace of mind. Contact an attorney today at 636-724-3355 to discuss your specific situation.
What is a Personal Representative (or Executor or Administrator)?
A Personal Representative, also referred to as an Executor or Administrator, is a person appointed by the court to administer the decedent’s probate estate. If the decedent had a Will, oftentimes the decedent named an individual they would like the court to appoint as Personal Representative. If there is no Will, then statutes determine who is able to serve.
How much does Probate cost?
Costs of probate can include filing fees, newspaper publication costs, bond premiums, court costs, personal representative fees and attorney fees. In Missouri, the minimum personal presentative commission and attorney fees are calculated based upon the value of the estate as determined in a statutory schedule.
Contact an attorney today at 636-724-3355 to establish an estate plan that avoids probate and the costs of probate.
How long does Probate take?
Probate of a decedent’s estate will take at least six months and ten days. However, probate often takes much longer to settle. If the estate qualifies as a small estate (the value of the decedent’s assets is less than $40,000), then a streamlined and simplified probate process can be completed in 30 days.
What is a Guardian?
A guardian is a person appointed by the court to have the care and custody of a minor or an adult person who has been legally determined to be incapacitated.
What is a Conservator?
A conservator is a person appointed by the court to manage the property of a minor or an adult person who has been legally determined to be disabled.
Who can be appointed guardian and conservator?
In Missouri, any eligible adult person, certain social service agencies and corporations can be appointed as guardian or conservator. Unless a family relationship exists, the law does not allow the following to serve as guardian or conservator: full-time judges and court clerks; employees of Missouri Dept. of Mental Health or Dept. of Social Services; incapacitated, disabled or habitually drunken individuals; or persons whose letters of guardianship have been revoked within the last two years.
The court will consider designations and nominations made by the incapacitated or disabled person either at the time of the hearing or in a Power of Attorney. Missouri law has an order of priority and before appointing a person as guardian or conservator, the court must consider the suitability and willingness of the person seeking appointment.
What powers does a guardian and conservator have?
A guardian must act in the best interest of the minor or adult person they are appointed to care for. A guardian is charged with the treatment, shelter, education, support and maintenance of the minor or adult child. The guardian of a minor child must act in the best interest of the child and make decisions for the minor child’s education, support and maintenance. The guardian of an adult person must make sure that the person resides in the least restrictive environment available to meet his or her needs. A conservator is responsible for the protection and management of the financial estate (money and property) of the minor or adult person. Both guardians and conservators must annually file a report with the court.