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.
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;
- The intended beneficiary may pass away before you do;
- The intended beneficiary may be or become incapacitated, and reliant upon government benefits which can be disrupted by receiving an inheritance;
- The intended beneficiary might be in the midst of a divorce or part of a blended family; or
- The intended beneficiary may be facing creditor problems.
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.
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
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.
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.
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.
FREQUENTLY ASKED QUESTIONS
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.
Common Case Studies
The Johnson family had always considered their cozy suburban house as the cornerstone of their lives. However, their world was shattered when Mr. Johnson sadly passed away. Amidst the grief, Mrs. Johnson uncovered a startling revelation – her name was not on the deed to their beloved home. This unexpected twist led the Johnsons on a journey that ultimately highlighted the critical need for an elder law attorney during probate proceedings.
The Unforeseen Obstacle
The Johnsons had built a life together in their charming suburban home, believing that both their names were on the property deed, but who checks on that, we just assume. In the wake of Mr. Johnson’s passing, the family discovered that Mrs. Johnson’s name was conspicuously absent from the document. This revelation was not only emotionally distressing but also raised complex legal questions.
Navigating Legal Complexities
To comprehend the implications of this shocking discovery, Mrs. Johnson turned to the expertise of elder law attorney Mr. Reynolds. Mr. Reynolds specialized in helping families in situations like the Johnsons’, where probate issues and property ownership complexities intersect.
The Importance of Estate Planning
One of the key takeaways from this situation was the significance of proper estate planning. Mr. Johnson’s absence of a comprehensive estate plan had inadvertently caused the omission of Mrs. Johnson’s name from the deed. This lack of foresight resulted in a challenging legal issue for the family.
The Probate Process and Mr. Reynolds’ Expertise
With Mr. Reynolds’ guidance, the Johnsons initiated the probate process to rectify the deed’s oversight. This involved a series of legal procedures and meticulous documentation. Mr. Reynolds played a pivotal role in ensuring that Mrs. Johnson’s rights to the property were upheld during this trying time.
The Relief of Legal Resolution
After almost a year of legal proceedings and hours of consultation with Mr. Reynolds, the Johnson family finally received the news they had hoped for – Mrs. Johnson’s name was rightfully added to the property deed. The sense of relief and closure that followed was immeasurable.
The Ongoing Need for Elder Law Services
The Johnson family’s story underscores the critical role that elder law attorneys play in probate matters, particularly when unexpected issues like property ownership discrepancies arise. It serves as a compelling example of the importance of proactive estate planning to prevent such challenges.
The Johnson family’s journey through the aftermath of Mr. Johnson’s passing highlights the legal and emotional complexities that can arise when property ownership is not clearly defined. This case study emphasizes the invaluable support provided by elder law attorneys like Mr. Reynolds and reinforces the importance of comprehensive estate planning to avoid such tribulations in the future.
By connecting the Johnson family’s predicament to the need for an elder law attorney during probate, this case study not only tells a compelling story but also effectively communicates the significance of seeking legal counsel in similar situations. It can attract relevant traffic to your website while offering valuable insights and guidance to your audience.
What happy people say
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!
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.
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.