Probate

Missouri and Kansas Probate Attorneys

Who wants to go and who has to go to probate?

What is Probate? “Probate” is technically a court that handles specific matters concerning the administration of a person’s estate, whether they are living or not. While the administration of estates includes Guardianships and Conservatorships, and other specialized proceedings, it is most commonly used to refer to a “decedent’s estate.”

Probate of a decedent’s estate is the process of obtaining judicial acknowledgment of ownership over assets that were titled solely in the name of a person who has passed away. If such assets exist then a probate proceeding will be needed, even if the court determines that there is a valid Last Will & Testament.

A valid Last Will & Testament will act as a set of instructions for the judge and will help reduce the time and cost associated with the probate process. If the decedent didn’t have a valid Last Will & Testament the judge will refer to state statutes when determining who receives the property of the estate. Either way, this process can be expensive. In our experience the majority of cases cost about 4% of the value of the entire estate and will last for approximately one year from the first meeting with an attorney.

Avoiding Probate

There are three common ways to avoid the probate process, but you should be cautious. There may be factors you are unaware of before jumping into one of the three methods of avoiding probate. As examples;

a. The intended beneficiary may pass away before you do;
b. The intended beneficiary may be or become incapacitated, and reliant upon government benefits which can be disrupted by receiving an inheritance;
c. The intended beneficiary might be in the midst of a divorce or part of a blended family; or
d. The intended beneficiary may be facing creditor problems.

Methods

If a joint owner survives the person who died, then the survivor(s) own(s) all title to the property.

There are intricacies in joint ownership that should be seriously considered. Such considerations may be whether the joint owners are married; to each other or to someone else. At least one other consideration should be whether there are designations of “joint tenancy” or no further designation of type of ownership. Usually joint ownership is recommended for long-time married couples only, as it could potentially expose assets to any issues that befall either of the joint tenants such as one of them being sued or going through a divorce.

All assets can have beneficiary designations.

This is perhaps the easiest manner of avoiding probate and requires minimal assistance from professionals. This option is limited only in that it may not be possible for every asset, and in that it transfers property outright even if the beneficiary might be better served by receiving only a portion of their inheritance at a time. For instance, there may be tax considerations involved in receiving all of the funds at once, or the beneficiary may struggle with financial responsibility.

Create and fund a trust.

This is the most complex option, but it also offers the most flexibility. Trusts can be designed to fit the Grantor’s wishes, and can be drafted to avoid causing issues with beneficiaries who are receiving government benefits or who struggle with financial responsibility. However, Trusts are only effective if the Grantor’s assets are properly transferred to the trust.

There are many factors to consider when deciding how best to avoid the probate process, and in general it is best to meet with an attorney so that you can explain your circumstances and desired outcomes so that a course of action can be recommended.

Determining the type of Probate Proceeding, the $40,000 mark.

In Missouri the probate process is split between a “small” estate which has less than $40,000, and the standard estate. The Probate process for a small estate is generally much cheaper than for a standard estate, and takes far less time.

Typical Process of Events in a Small Estate

Consultation

During the first appointment your Attorney will learn all of the facts and circumstances, explain the process and timelines, and collect or request necessary documents for proceeding with opening an estate. Fees and cost expectations will be set forth at this time.

Documents review

A second appointment will be held with either an attorney or an experienced probate paralegal who will review and explain the documents that have been prepared and answer any questions. Then the documents will be signed, and the timeline either reiterated or updated depending on the circumstances.

Retitling

The next step is taken within the law office and may include gathering waiver signatures, issuing required publications, obtaining bonding, and filing any required documents with the court.

Review in 3 years

Almost always the final step, the client will receive a “Certificate of Clerk.” This certificate is a document generated by the Court which will allow the client to collect and distribute the assets of the estate without further interference.

Education

Missouri statutes allow for an attorney and the personal representative to receive a fixed minimum percentage of the value of the estate for their services; the amount paid can be greater than the minimum if the hourly work justifies it.

These fees will be the primary expense to complete the probate process, but there can be others. Common costs of probate include items such as court filing fees, bond premium payments, and publication costs.

The statute is the same for the personal representative as it is for the attorney, there is a minimum percentage of the total value of the estate that can be taken as the personal representative’s fee. However, the personal representative is often an heir or beneficiary of the estate. In these situations it is not uncommon for the personal representative to forgo receiving a fee even if they have a statutory right to receive it.

It is important to note that fees received for work as a personal representative are taxable on federal and state tax returns and the personal representative who is also an heir or beneficiary may actually benefit more by not taking a fee.

Generally speaking, yes. It is always a good idea to at least meet with an attorney to determine what services are necessary. Oftentimes situations that appear simple end up being much more complex than anticipated, and it is worth the time to meet with an attorney so they can help you discover those issues.

In the case of a “small estate,” (an estate with a value less than $40,000), the necessity of retaining an attorney depends on the total value of the assets requiring probate and the local rules of the county probate court. We are aware of one court that does not require a person to have an attorney if the total value of the assets is less than $5,000, but that is the exception rather than the rule. Most counties have no amount that is exempt from the requirement that a party filing in probate court be represented by an attorney.

For estates exceeding $40,000, the personal representative is required to be represented by an attorney. Even though the Constitution allows an individual to represent himself or herself in court, a personal representative is not representing himself or herself, they are representing an estate and if the personal representative is not an attorney, they must employ one.

The most likely answer to this question is “yes.” The probate process does have many variables, but usually an independent personal representative can sell a house with no further court action. A supervised personal representative has a few more hoops to jump through and will require the court’s permission, but usually selling the house is allowed.

About

About Paths Law Firm in Kansas City

Our legal experts have more than 25 years experience as Missouri Medicaid Lawyers focusing solely on issues common to seniors and their families. This commonly includes planning for the inevitable with Wills and Trusts or planning for the unforeseen with Powers of Attorney, Guardianships, and Medicaid or VA benefits.

Our caring staff listens to your situation and concerns, then calmly and expeditiously explain your options with a timeline for completion. Our goal is to provide each client with security in legally planning for the inevitable and unforeseen regarding their passing and long-term care needs.

Happy People

I have referred a number of my Medicare and Financial clients to Paths Elder Law. Their holistic approach to meeting clients estate planning needs is unparalleled and the pricing is extremely reasonable for the level of service provided, both before and after the work is done. Many of my clients have told me that Mr. Fracassa and his team have given them the best attorney experience they've ever had.

- Mark S .

I had Rusty set up a will and do some estate planning. He was very easy to work with and extremely professional. His many years of experience in this field of work was definitely something that I appreciated. He was able to educated me on many things I had never thought of just in case the worst ever did happen. I can now rest easy knowing my family and business will be protected should I pass.

- Luke P .

Paths for Elder Care "saved my bacon", both economically and emotionally. If you've ever had to deal with the VA, you will understand. Rusty and Shane helped my stepdad obtain Aid & Attendance that I doubt I could have done on my own. They went above and beyond, were very patient with a legal illiterate, and were well worth the fee. Thanks!

- David P .

Rusty has been a personal friend for many years but when he started handling our legal matters, we realized just what a God-send he is. He is knowledgeable, but always takes the time to find out about us before getting into business talk. By doing that, he is able to meet the needs we may not even know we have. In addition to his legal help, he has built a very capable team that has expertise in Elder Care as a whole. Highly recommend.

- Debbie W .

When my mother was suddenly disabled by illness, Rusty made it possible for us to find her long term care while saving my father’s financial stability by his rapid work in establishing his trust. This preserved my father’s ability to live his life and not be financially devastated by the Medicaid system. We deeply appreciate the hard work by Rusty and the staff of Paths for Elder Care.

- George U .

The service I most appreciated was the love and compassion we received during a very hard time in my life. Russell took charge and talked me through everything I needed to do to make it run smooth. I am very confident if we would not have had Russell do our mother’s trust before she passed away, we would still be dealing with it 4 years later. If you don’t use them, I promise you are missing out.

- Leslie L .

We have been customers of Russell for several years. He has done an excellent job of helping us with our Trust as well as other matters. We can always count on his office to be there when we have a question. Navigating through the legal ins and outs of aging is daunting and I am so glad we didn't have to do it alone.

- Linda D .

Rusty was great to explain and work with us. We appreciated his honesty and he's a Christian! Rusty has gone "above and beyond" to help us on a problem. May I tell you how grateful we are to him for his advice and concern - a blessing!

- Lvonne G .