Probate

In this country, we have the right to own private property and, upon our deaths, to pass that property on to those we select as our beneficiaries. However, this right is not absolute. We can pass our property on to our spouses, our children and other beneficiaries only by following certain formal requirements. In most cases these requirements will be met by the execution of a will, prepared and signed in accordance with the law of the state in which you reside.

When one dies leaving a will, we say that person died testate. If one dies without a will, the person is said to have died intestate. Whether the deceased left a will or not, the distribution of most property in the state of Missouri, over certain minimum amounts as set forth in the statutes, will involve the appointment of a Personal Representative and the opening of an estate in a probate division of the circuit court usually in the county in which the deceased permanently resided at the time of death. The individuals who will share in that distribution are then determined either by referring to the deceased's will or by Missouri statutes if no will has been made.

If a deceased person's estate is below the statutory minimums, certain summary procedures may be followed which eliminate the necessity of full administration and the appointment of a personal representative.

TRANSFER OF PROPERTY AT DEATH

The probate division has been established primarily to protect the rights of one's heirs, beneficiaries under a will and creditors, and to assure the orderly transfer of property. However, if an individual disposes of all property prior to death, either by gift, living trust, joint accounts with right of survivorship, pay-on-death accounts, beneficiary accounts or other similar transfer-on-death provisions, then there may be no need to probate the estate, as the distribution of such property is not affected by the terms of a will or the laws of intestate succession. However, in the case of most individuals dying with property in Missouri, some involvement with the probate division will be necessary.

The assets of the deceased, except for any real estate passing to heirs or devisees under the will, are held and managed by the Personal Representative during the administration of the estate. The Personal Representative makes distribution of the estate when the administration is ended and the Personal Representative has reported all transactions to the probate division for approval.

The earliest that an estate may be closed and distribution made to the heirs or beneficiaries is approximately six (6) months after the opening of the estate. However, it is unusual for all administrative duties to be finalized within that period of time.

Establishing Title to Real Estate

The administration of an estate in the probate division also serves to establish clear title to any real estate which the deceased may have owned at the time of death. Real property passes directly to one's heirs, or to one's devisee if a will is admitted to probate; thus, it does not technically form a part of the probate estate unless it becomes necessary to sell the property to pay debts or for certain other reasons as set out in the statutes.

However, even though real property does not always form a part of the estate, if there is no probate administration it may be impossible for the heirs to pass clear title to the property for one year after death. This is due to the fact that, in Missouri, a will may be filed at any time within one year after the death of the individual executing the will and that will could possibly alter the ownership of the property.

Similarly, creditors may take actions to enforce claims which could force the sale of real property. However, if an estate is probated, the period of time in which the title to the real property can be so affected is reduced to approximately six months after the opening of the estate.