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

attorneys at Paths Law

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.

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