Probate Estates - The McCurdy Law Firm, LLC

Probate

What is Probate?

Probate is a legal process that oversees the distribution of a deceased person’s assets and settles their debts. This process ensures that the deceased person’s property is transferred to the rightful heirs or beneficiaries according to the law.

When is Probate Needed?

Probate is typically necessary when an individual passes away, leaving behind assets that need to be distributed and debts that need to be settled. However, not all assets go through probate, as some may pass directly to beneficiaries through mechanisms like joint tenancy, beneficiary designations, or living trusts.

What is a Probate Estate?

A probate estate consists of the assets owned by a deceased individual that are subject to probate. This includes real estate, bank accounts, personal belongings, and other valuable assets that were solely owned by the decedent.

What is the Difference Between Letters of Administration and Letters Testamentary?

Letters of Administration:
- Issued when a person dies without a will (intestate).
- Appoints an administrator to manage the estate.
Letters Testamentary:
- Issued when a person dies with a valid will.
- Appoints an executor to manage the estate.

Both letters grant legal authority to the appointed individual to act on behalf of the estate.

What is a Personal Representative?

A personal representative, whether an administrator or executor, is an individual appointed by the court to manage and settle the affairs of the deceased person’s estate. Their responsibilities include inventorying assets, paying debts, and distributing remaining assets to beneficiaries.

What is the Process for a Probate Estate?

Filing a Petition:
- A petition for probate is filed with the probate court.
Appointment of Personal Representative:
- The court appoints a personal representative, either through letters of administration or letters testamentary.
Notice to Creditors and Heirs:
- Notice is given to creditors and heirs, providing an opportunity for them to make claims or objections.
Inventory and Appraisal:
- The personal representative inventories and appraises the estate assets.
Payment of Debts and Taxes:
- Debts and taxes are paid from the estate assets.
Distribution of Assets:
- Remaining assets are distributed to beneficiaries according to the will or Missouri intestacy laws.

When Can a Probate Estate be Opened?

A probate estate can be opened shortly after the death of an individual. It is advisable to initiate the process promptly to ensure a smooth administration and timely distribution of assets.

How Long Does Probate Take?

The duration of probate varies based on factors such as the complexity of the estate, potential disputes, and court schedules. In Missouri, an uncontested probate process typically takes several months to a year.

What is a Small Estate Affidavit?

A small estate affidavit is a simplified probate process for estates with a total value below a certain threshold. It allows for the expedited transfer of assets without a full probate proceeding, saving time and costs.

What is a Creditor Refusal?

A creditor refusal is a process where a creditor who is owed money from the estate rejects the claim. This can be done within a specified timeframe, and if no objection is raised, the claim is considered refused.

What is a Spousal Refusal?

A spousal refusal is an option available to a surviving spouse to disclaim the deceased spouse’s assets. This may be used strategically for Medicaid planning or to redirect assets according to the deceased spouse’s wishes.

What is a Determination of Heirship?

A determination of heirship is a legal proceeding to establish the legal heirs of a deceased person when there is uncertainty or dispute. This process clarifies the rightful beneficiaries of the estate.

In conclusion, navigating the probate process in Missouri involves understanding the various aspects of estate administration, legal appointments, and potential alternatives. Seeking legal advice is essential to ensure compliance with state laws and to facilitate a smooth and efficient probate process.

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Meet Tim McCurdy

Tim grew up on a farm in Southwest Iowa. After obtaining his law degree from the University of Notre Dame, Tim moved to St. Louis to “watch a few Cardinals games” before returning to Iowa. Tim started a family instead and has called St. Louis home for more than twenty years.

Throughout Tim’s legal career, he has helped clients protect their rights in lawsuits throughout the country. After watching a loved one suffer from Alzheimer’s disease, Tim developed a passion for elder law. Tim’s practice now combines his more than twenty years of litigation experience with an in-depth knowledge of estate planning and probate.

Tim devotes his practice to helping families navigate disputes involving estate plans and probate administration. Tim’s trusts and estates litigation practice includes trust and will contests, the removal of fiduciaries, demands for accountings, and contested guardianships. Tim is also frequently appointed by probate judges to represent individuals facing guardianship petitions, and as a court-appointed fiduciary.