Losing a loved one is hard enough. But now someone (usually a bank or mortgage company) has told you a piece of their property must go through probate. What does that mean? This post is meant to give you a general overview of how the the Missouri probate system works. It’s important to understand what sorts of property become subject to probate, the various ways that we can deal with them in the probate system, and how we can avoid the need for probate entirely.

I. Probate vs. Non-probate Property

The first thing to understand about probate is what kinds of property need to be probated. If you die holding property in your name, one of two things can happen: the property can pass automatically to somebody else, or it will require probate court to transfer. Property is subject to probate if it is left in a person’s individual name when they die and has no other mechanism, by contract or law, to pass automatically to someone else. Okay, so when does property pass by contract or law?

1. Property Passing by Contract

For property to pass by contract, that property, such as a bank account or a brokerage account or a retirement account, can have a designated beneficiary to receive the property upon your passing. The terms of this transfer and who it goes to are defined by the contract terms that govern the administration of that account or plan. The 401(k) documents that your plan administrator uses to operate that plan are a contract, and your beneficiary designation form is another form of contract.

If a contract designates a beneficiary to receive property automatically when you die, Missouri law authorizes that property to transfer automatically immediately at the moment of death to the designated beneficiary. The beneficiary may need to provide a copy of the death certificate and Social Security number and fill out some paperwork in order to receive the property or have it transferred into their name, but their entitlement to the property vests at the moment of death.

It is worth noting that even real estate can be given a form of beneficiary designation to automatically transfer the property to an intended beneficiary at death. In Missouri, this is known as a “beneficiary deed”. In fact, Missouri’s non-probate transfer law is broad enough to allow a beneficiary designation on just about any kind of property you can think of.¹ This is a simple and powerful tool that should be kept in mind while planning your estate.

2. Property Passing by Operation of Law

The other way property can transfer automatically at death is if it occurs by operation of law to a co-owner. What do I mean by that? I mean that there isn’t any contract or beneficiary designation that dictates how the property transfers; instead, how the property transfers is just the legal rule. To help it make more sense, let’s start with the basics of property ownership.

a. Tenancy in Common

Property can be co-owned with another person in essentially one of three ways (four, if you count holding it through a business entity). The first type is called tenancy in common. For real estate, this is the default form of co-ownership in Missouri for any two or more people other than married couples.² If someone dies while holding property as a tenant in common, their interest in the property does not automatically pass to anyone else (without a beneficiary deed or it being held in trust). Instead, that interest falls to their probate estate to be distributed to their heirs at law or as defined in their last will and testament.³

b. Joint Tenancy with Right of Survivorship

The second way that you can co-own property is called joint tenancy with the right of survivorship (“JTWROS”). In this form of ownership, if a co-owner dies, their ownership rights immediately and automatically pass to the other surviving co-owners. The property does not fall to their estate, and as long as there is a remaining co-owner, it will not require probate. Joint tenancy is the default form of ownership for assets like cars (RSMo. 301.675), bank accounts (RSMo. 362.470), and brokerage accounts, and holding those assets as tenants in common requires a specific designation. In order for real estate to be held as joint tenants, it must explicitly state that on the deed. In that way, real estate and most other assets have opposite default co-ownership types.

c. Tenancy by the Entirety

The third form of co-ownership is called tenancy by the entirety. This type of ownership is only available to married couples in Missouri. Like JTWROS, tenancy by the entirety involves the right of survivorship. When one spouse dies, the surviving spouse automatically becomes the sole owner of the property, without the need for probate. Tenancy by the entirety also provides additional protections against creditors, as the property cannot be seized to satisfy the debts of only one spouse. Additionally, tenancy by the entirety is the default form of ownership when a married couple takes title to real estate together.⁴

So this is our first important conclusion: property subject to probate is in the individual name of a deceased person and is not set to not pass automatically by contract or by certain forms of co-ownership. For most of our clients, this means real estate left in the individual name of their loved one without a beneficiary deed or JTWROS ownership, bank accounts in their sole name with no beneficiary, brokerage accounts in their sole name with no beneficiary, and so on.

II. Probate Process in Missouri

Once the pieces of property subject to probate have been identified, one of the next steps is determining if the decedent left a last will and testament and, if so, whether it can be submitted to probate.

1. Admitting a Will to Probate

It is important to note that a last will and testament, in order to be affective as a will, must be presented to the probate court within one year of the death.⁵ This reality is peculiar to Missouri and harshly punitive to many Missouri families seeking to probate the estate of their loved one. There are virtually no exceptions to this rule in Missouri. As a consequence, if your loved one passes leaving a will, be sure to contact a Missouri attorney and have the will admitted to probate as soon as possible. Relatedly, the person having custody of a decedent’s will is legally required to deliver it to the probate division of the circuit court having jurisdiction over the estate, or to the probate division of the county where the will is found.⁶

In Missouri, a valid will requires that it be executed by a person (the “testator”) over the age of 18 (unless emancipated or in the military) who is of sound mind.⁷ It also requires that the will be (a) in writing, (b) signed by the testator, or by some person in his or her presence and at his or her direction, and (c) it must be attested by two or more competent witnesses who write their names on the will while in the presence of the testator.⁸ Generally speaking, any competent person is allowed to witness the signing of the will.⁹

However, there is one important limitation to be aware of: if a witness to a will is “interested” — meaning, they are named in the document as beneficiary — their share of the estate is limited to what they would have received had the testator died without a will. For example, if your two adult children are the witnesses to your will and it leaves 70% to your son and 30% to your daughter, the son’s share is capped at 50%. Because the distribution without a will would have left them each 50%, the additional 20% he was left above the “intestate” share (i.e., the amount he would have received had there been no will) is forfeited.

Whether a will can be admitted to probate without further proof depends on whether the will is “self-proving.” A will is self-proving — meaning, it can be admitted without witnesses swearing to its validity — if it contains a self-proving affidavit that is signed before a notary public.¹⁰ The affidavit must comply “substantially” with the statutory language:

I, the undersigned, an officer authorized to administer oaths, certify that ______, the testator, and the witnesses, whose names are signed to the attached or foregoing instrument, having appeared together before me and having been first duly sworn, each then declared to me that the testator signed and executed the instrument as his last will, and that he had willingly signed or willingly directed another to sign for him, and that he executed it as his free and voluntary act for the purposes therein expressed; and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of his knowledge the testator was at that time eighteen or more years of age, of sound mind, and under no constraint or undue influence.

In witness whereof I have hereunto subscribed my name and affixed my official seal this ______ day of ______, 20______.

RSMo. 474.337.1.

If the will is signed and notarized with this affidavit, the will can be admitted to probate without further proof.¹¹ If the will does not contain this self-proving affidavit, then the will must be proved by the testimony (or notarized affidavit, called a “commission”) of the subscribing witnesses.¹² Lastly, it should be noted that a interested person has 6 months from the date of the probate of the will (or 6 months of the date of first publication of the notice of the grant of letters) to file a petition contesting the will.¹³

Typically, then, an ideal will requires: (a) a writing that is signed by the an adult, mentally competent testator (or someone at his or her direction), (b) in the presence of two competent witnesses, (c) that is also notarized with a valid self-proving affidavit. Without these requirements, it becomes more difficult to have a will used as a will.

If it is admitted to probate and otherwise survives challenge, the will controls the disposition of estate property, no matter which type of Missouri probate is conducted thereafter.

2. Types of Missouri Probate

Once the property subject to probate has been identified and the will admitted to probate (if necessary), we need to figure out what kind of probate is appropriate under the circumstances of a given case. In Missouri, there are essentially four different kinds of probate application that carry with them four different sets of procedures for administering the probate estate. Within each category there are a few different variations as well. Those categories include (a) a full estate administration for estates larger than $40,000 within 1 year of death, (b) small estate administration for estates valued below $40,000, (c) a determination of heirship proceeding involving the estates of decedents who have passed away more than 1 year ago, and (d) applications for refusal of letters.

a. Full Estate Administration

A full estate administration typically involves estates that are comprised of property worth more than $40,000. In most cases, a full estate administration is commenced through the filing of an Application for Letters of Administration (where there is no will) or Letters Testamentary (where there is a will). Most people (including banks and other organizations) are surprised to learn that in Missouri, an Application for Letters–and consequently a full estate administration–may only be filed within one year of death.¹⁴ This carries with it important implications for creditors that we will discuss later.

i. Who may serve as personal representative?

The basic process of a full estate administration involves having a personal representative appointed to administer the affairs of the deceased person’s estate. The order of priority to serve as personal representative is as follows: (a) to the person named as representative in the person’s will (unless found to be incompetent or unsuitable), (b) the spouse, (c) to someone entitled to distribution of the estate, (d) if nobody is competent, then to “some other person” appointed by the court.¹⁵ In addition, the spouse and persons entitled to distribution may, if they are a mentally competent adult, nominate another qualified person to serve as representative, and in so doing they may renounce his or her right and file a separate nomination.¹⁶

ii. The requirement of a bond.

This representative needs to buy a bond in most cases, unless there is a will waiving that requirement.¹⁷ A bond is essentially an insurance policy that protects the estate, its beneficiaries, and its creditors against mismanagement by the personal representative (for example, running off with the estate’s money to Mexico before the conclusion of the case).

In order to get bonded, a personal representative will need to go through an underwriting process with the relevant bond compan(ies). In order to qualify, a bond applicant typically needs to have acceptable income, passable credit, and a relatively clean criminal background. However, we have seen bonds get issued to applicants who did not meet all of these requirements.

Although a judge may waive the requirement of the bond with good cause if it is not required to protect interest parties,¹⁸ in St. Louis County, bonds are virtually always required unless there is a will waiving the bond¹⁹ or the assets are very low in value. In St. Louis City, bonds are sometimes waived with the consent of all interested parties, but that is becoming less common.

Regrettably, for some clients, getting a family member bonded is one of the biggest barriers to having them appointed as personal representative of the estate of a deceased loved one. Typical bond costs range from $300-1800 or more, depending on the value of the estate, for a 1-year annual premium. Where required by the court, a bond is an absolute prerequisite to serving as representative.

Because a bond may be waived in a will, saving time and cost, and because the will may authorize independent administration (discussed next), we highly recommend that all of our clients put together, at the very least, a simple will as part of their estate plan prior to death.

iii. Independent vs. Supervised Administration

There are two different kinds of full estate administration: supervised and independent. A supervised administration requires that the court be consulted to enter an order authorizing many of the transactions a personal representative may seek to conduct, such as selling a house or other assets. For that reason, supervised administrations tend to be more costly and time consuming. However, sometimes a supervised administration is unavoidable, such as where less than all of the heirs consent to independent administration, or where there is no will authorizing independent administration.

Additionally, there can be good reasons to proceed under a supervised administration, such as where there is any concern about mismanagement or significant disputes over the handling of the estate among heirs or other potential interested parties. Nevertheless, supervised administration does often add significant irritation, cost, and delay to the full estate process, and therefore if it can be avoided, it is usually preferable to do so.

The other formal full probate administration is called independent administration.²⁰ This form of a state administration does not require court approval for virtually any actions of the personal representative. In most cases of independent administration, the estate is opened and the authority granted to the representative by statute (or the will), the representative waits out the six-month creditor claim period, and afterward the representative files what is called a “statement of account,” and the estate is quietly closed without any formal court approvals or orders.

iv. The filing of the Inventory

No matter which type of full administration is being conducted, the first requirement after the appointment of a personal representative is that within 30 days, the representative must compile a list of all known probate assets and prepare the estate inventory that is notarized and filed with the court.²¹ The inventory provides an accurate list of what the decedent owned so that the heirs can be kept apprised of what the estate contains and creditors can determine whether they should bother with the effort of filing a claim or not.

To complete the inventory, the assets need to be located, identified, and valued. For things like bank accounts and brokerage accounts, this means locating account numbers, approximate balances, and account owners. For real estate, it means obtaining the formal legal description from the deed as well as its value, which can often be based on the tax assessor’s appraised value found on the county tax assessor’s website. For cars, it typically means the VIN and Kelly Blue Book value. More specialized assets may need to be appraised professionally, such as collectibles, jewelry, or artwork. Other assets, such as a pending lawsuit, may not be capable of ready valuation.

If assets cannot be accessed, or could not be accessed prior to the appointment of a personal representative, they should now be accessible. Any resistant banks or organizations at this point are now subject to the service of a subpoena, which acts as a court order to produce any required documents. However, the need for sending subpoenas does often contribute to delays, so if documents such as bank statements are accessible through other means, they should be obtained that way instead.

While the inventory is being compiled, one of the other things that is often necessary is to open a new bank account in the name of the estate using a new tax ID number (EIN) obtained from the IRS. This will allow the representative to have a secure place to store all estate cash and keep track of income and expenses to the estate more easily.

Meanwhile, the personal representative should be prepared to set aside certain property for the benefit of a surviving spouse or minor children, as those individuals possess certain exemptions and allowances under Missouri law designed to prevent impoverishment. For example, a surviving spouse and minor children are entitled to a homestead exemption, an allowance of many items of personal property from the estate, and up to a 1-year support allowance based roughly on the income contributed to the family of the deceased spouse/parent.

v. The creditor claims period.

After appointment as personal representative, this is also at this time that creditors must be notified of the opening of the estate and given an opportunity to file their claims against the estate. This is done with a combination of notice by publication in the newspaper and sometimes by direct mail. Except for secured creditors (mortgage companies, vehicle lienholders, etc.), any creditors who fail to file a claim within the prescribed time (usually 6 months from the date of first publication of the notice of the granting of letters) will have their claim barred from recovery forever.²² This is why in Missouri full probate administration typically must last at least 6 months from the time that the estate is opened in order to ensure that no creditors will file a claim.

Whether or not the estate is opened for full administration, Missouri law imposes a 1-year time limit to filing claims on most creditors, and creditor claims cannot be filed unless this is done within an open full estate administration. This leads to a planning opportunity: if the distribution of assets will be the same whether the estate is probated within 1 year or not, sometimes it can be desirable to wait until 1 year has passed without an administration being commenced in order to file a determination of heirship (discussed below) and avoid any creditor claims. This strategy will not work if there is any urgent need to access the assets, such as to pay immediate expenses or make other payments necessary to avoid foreclosure or repossession of estate assets.

However, delaying to avoid creditors is often the only option if the decedent was a long-time Medicaid recipient. What many people do not know is that Medicaid / MoHealthnet (in Missouri) has a Estate Recovery Unit, which in many ways acts like the Grim Reaper’s clean-up crew. For low income recipients of Medicaid / MoHealthnet assistance (with some exemptions), the Missouri state government is permitted to assert a claim against the estate of a deceased recipient for the full value of the benefits paid over their lifetime, subject to some exceptions. RSMo. 473.398. It’d be a lot like if your insurance company, after paying $1M in cancer treatment, came to your family members and your estate and said “we’d like that back now.” And yet, that’s what happens to the families of Medicaid recipients every day, simply because the decedent was a little bit too poor to afford private market insurance premiums.

The most common exceptions to the recovery of a Medicaid / MoHealthNet claim are as follows:

• Where the cost of collection would exceed the amount of the claim (that is, where the Medicaid claim is small (RSMo. 473.398.3(1));
• Where the collection will harm the needs of the surviving spouse or dependents to reasonable care and support from the estate (in other words, where it would damage their spousal exemption and allowance rights–(RSMo. 473.398.3(2));
• Where the decedent left a surviving spouse (42 USC 1396p(b)(2));
• Where the decedent left a surviving child under the age of 21, or who is blind or permanently and totally disabled (42 USC 1396p(b)(2)(A));

There are others that should be addressed on a case-by-case basis, but these will point readers in the right direction in evaluating their own cases and Medicaid claims.

Many of our clients prior to talking with us make the mistake of paying the debts of their deceased love one. In Missouri, a creditor’s entitlement to be paid requires that they jump through all of the procedural hoops to properly file a claim in probate court. In most cases, that means hiring a lawyer, filing a claim that is properly structured and supported with competent evidence and documentation, and showing up in court to defend their claim in front of the judge.²³ Many creditors fail to do this, and their claims can be thrown out.

As a result, we tell our clients never to pay the debts of a deceased loved one without talking to us first. With that being said, there can be reasons to pay certain kinds of claims to preserve certain kinds of property. For example, you may want to continue paying a mortgage on a decedent’s house to avoid foreclosure, or you may wish to pay real estate or personal property taxes to avoid a tax auction of real estate or repossession of a car. It often also makes sense to pay for certain utilities, such as heating and electrical, in order to prevent pipes from bursting in the winter.

vi. Timeline for a full estate administration.

At a minimum, a full estate administration will take about 7-9 months to complete. Often, the true time frame is longer. Complications with beneficiaries, contested claims, complicated assets, delays by the court, the client, or counsel, or simply due to the complexity of a given circumstance or case can all add to the time involved. Once the creditor time frame has elapsed, it is usually safe to begin preparing the final closing paperwork for the estate, completing any final tax returns, and making distributions of estate assets to the beneficiaries of the estate.

vii. Cost of a full estate administration

The attorney’s fees associated with a full estate administration in Missouri are set by statute, RSMo. 473.153. In essence, the formula is: the greater of (a) the statutory fee computation, OR (b) the value of “reasonable compensation,” which may be higher than the percentage (for example, in the case of estates that are lower in value but require the same amount of work). Incidentally, this fee is also the same fee that the personal representative him or herself is entitled to for doing the job of serving as representative. The statutory computation is based on the value of the personal property and the proceeds of all real property sold under order of the probate court, as follows:

On the first	$5,000	5%
On the next	$20,000	4%
On the next	$75,000	3%
On the next	$300,000	2.75%
On the next	$600,000	2.5%
On all over	$1,000,000	2%

Importantly, the law is clear that “[n]o personal representative, other than one who is an attorney, may appear in court except by attorney[.]” RSMo. 473.153.7 (the general fee statute); 473.823 (applying the general fee statute to independent administration); 473.787 (requiring the independent personal representative to hire a lawyer). As a result, if a full administration is required, you should expect and budget for legal fees. It is due to the time and cost discussed above that most people prefer to engage in estate planning to avoid probate entirely.

b. Small Estate Affidavit / Small Estate Administration

If the value of the estate subject to probate is below $40,000, Missouri authorizes an expedited short form administration through the use of a small estate affidavit.²⁴  This is usually done with a two or three page document (sometimes on a court-approved PDF form) that lists the heirs of the estate and all known property subject to probate. The debts of the decedent, including mortgages on real estate, can be used to offset the value of the estate and bring it below $40,000. The assets and values must be listed on the affidavit in much the same way that they would be on the inventory for a full estate administration. The affidavit can typically be made by the personal representative named in the will or by anyone who would be entitled to distribution of the estate.²⁵ Additionally, a bond is often still required unless the value of the estate is below a very small amount. If the value of the assets is over $15,000, publication of notice in the newspaper is required.

The affidavit must swear that the affiant (the person making the affidavit) will pay the debts of the decedent.²⁶ However, Missouri case law has made it clear that the proper remedy for failure of an affiant to pay a creditor is to open a full estate and file a claim within the 1-year time limitation for doing so.²⁷

Assuming in normal small estate process, this form of probate administration can take as little as 3-6 weeks to complete, depending on the county and how readily available and compliant the heirs are and how much investigation needs to be done regarding the assets. St. Louis County tends to take a little longer, while St. Louis City, St. Charles County, and Jefferson County tend to be much faster. This simple affidavit is filed with the court and reviewed by the clerk and probate commissioner (the judge). They will often ask for additional information or clarifying paperwork before issuing what is called the “certificate of clerk.” That document authorizes the small estate affiant to gather up the property of the deceased person, sell it as needed, pay debts and creditors, and distribute to the beneficiaries (the heirs at law if there is no will, or to the beneficiaries of the will if it was admitted to probate within 1 year).

A small estate affidavit may be filed at any time, including after the one-year deadline for opening formal estates. Lastly, although the statutes do not explicitly require an attorney, most counties (including St. Louis County and St. Louis City) will almost universally require an attorney for a small estate proceeding. Some more rural counties throughout Missouri will allow a small estate affidavit to proceed without an attorney. Check with your local probate court clerk.

c. Determination of Heirship

If the decedent has been deceased more than one year, it is also possible to proceed under what is called a “determination of heirship” proceeding.²⁸ This process is also fairly short and requires a listing of the heirs and the property of the deceased person on the application. This type of petition is only available where no administration has been commenced on the estate and where no written will has been presented for probate within the 1-year timeline. A hearing must be held in court (often virtually over WebEx, if requested by the parties), and notice of the hearing is published in the newspaper. Any interested people must appear before the court in order to speak any objection to the final order of heirship.

This order determines who is entitled to the assets of the deceased. If real estate is involved, the final order is recorded with the recorder of deeds office to show the transfer of title. A determination of heirship proceeding can be used no matter how large estate is, as long as it has been longer than one year since the death of the decedent.

However, one commonly used shortcut to avoid the need for a determination of heirship is known as an “heirs deed,” or an heirship affidavit. It relies on the same legal concepts as a determination of heirship and can only be used after 1 year of death (when all creditor claims are barred if no administration has been commenced). If you read footnote 3, below, you may remember that property, including real estate, passes automatically at death subject to the control of the personal representative for the payment of claims. Since an estate cannot be opened after 1 year of death, and since claims cannot be filed unless there is an open estate, there are no longer any impediments to the ownership of the real estate vesting directly in the heirs.

As a result, rather than a formal court process, a simple affidavit can be signed to explain the lineage, the heirship, and verify who is entitled to the real estate. Unfortunately, this type of affidavit will not usually work for bank accounts or other assets, but it is typically sufficient to satisfy a title company to allow the heirs to sell real estate.

The affidavit itself is a 1-2 page document that contains a sworn, notarized statement from someone familiar with the family lineage of the deceased. It swears to the heirship of the decedent and can satisfy many title companies as valid evidence of a title transfer when recorded with the recorder of deeds office. This option will not result in a court order, however, and therefore does carry some risk if an unknown heir seeks to challenge the title. Where the heirs are certain and disputes unlikely, this method can allow for the transfer of real estate that would otherwise require probate in an extremely cost-effective, fast, and efficient manner.

Determination of heirship proceedings are held before the court in an open hearing and always require a lawyer.

d. Refusal of Letters – Minors, Spouses, and Creditors

The last option for proceeding in probate is called a “refusal of letters” application. This application can be made by minor children, a surviving spouse, or a creditor of the estate. As long as the value of the estate is smaller than the statutory exemptions and allowances afforded to minors and spouses, or is smaller than the creditor’s claim, these individuals can make an application for refusal of letters. In essence, the applicant is asking the court to forego full estate administration and enter an order allowing the applicant to collect up the estate property without any creditors or other parties taking a cut.

Normally, the filing of a refusal of letters application is only for very small estates, with some exceptions for spouses and minors claiming a large family support allowance (however, these will need to be documented). A refusal letters application is often one of the fastest ways through probate, when it can be used. This type of application is particularly useful in cases where, for example, a family member has paid a funeral bill (a creditor’s claim) and is trying to collect a small asset, such as a stray bank account or old vehicle.

Refusal of Letters applications are the one type of probate application that some counties will not require an attorney. In such cases, the court clerks will often guide you through what needs to be filed. Again, check with your local county probate clerk.

III. Avoiding Probate Entirely

After all of these complicated rules and jargon, you might be asking yourself: “is there a way I can just avoid all of this headache for my family entirely?” Of course, the answer is “yes.” Avoiding probate is one of the many goals of the Estate Planning process, and fortunately it is very simple with a little foresight. If all you want to do is ensure that your assets avoid probate, the simplest way to do that is through simple transfer on death or payable on death designations on your various bank and brokerage accounts, beneficiary designations on your retirement plans, and a beneficiary deed on any real estate you may own. As you may recall, all of these options create automatic transfers that remove assets from the scope of being “probate property,” and therefore remove them from the probate system (under normal circumstances).

In addition to these simple “non-probate” transfers, individuals planning their estates can use tools like trusts and business entities to both avoid probate and secure additional protections. Many of our clients come to us with a probate horror story and want to make sure their kids do not have to go through that process. While we agree that avoiding probate is a valuable goal of estate planning, many clients at first overlook so many other important elements of estate planning, such as:

• What if a child passes before me and my grandchild(ren) is set to inherit property at too young an age? How can I be sure they will be protected?
• What if one of my beneficiaries ends up on means-based government assistance and can’t own property? How can I be sure they are able to enjoy the benefit of the property without disqualifying themselves from aid?
• What if I end up on government assistance, or need to qualify for it for purposes of long term care assistance? How can I structure my assets in a way that allows me to qualify for benefits without needing to deplete the product of my entire life’s work?
• What if a beneficiary has special needs, is on drugs, or is otherwise incapable or irresponsible with money? How can I make sure they are able to remain cared for financially but are unable to waste their inheritance?
• What if a beneficiary gets divorced, has to file bankruptcy, or is subject to a creditor attack from a lawsuit? How can an inheritance be structured to prevent depletion or loss of the assets to outside parties?
• What if I die and my spouse wants to get remarried? How can I be sure our property will pass back to our children?
• What if I have kids from a previous marriage? How can I be sure that when I die my children will inherit after my spouse is also gone?

The list goes on. Proper estate planning can allow individuals and families to avoid probate. However, through tools like trusts, estate planning can also allow them to address these and many other scenarios that are very real for many families while ensuring that their wishes are honored after they are gone.

IV. Conclusion

Hopefully this guide was helpful in framing the general outline of how the probate process works in Missouri, as well as a little bit about how to avoid it. If you think you may have a probate problem, don’t hesitate to give us a call so that we can better address how to handle your unique circumstances.

Resources

1. St. Louis County Probate Forms
2. St. Louis City Probate Forms
3. St. Charles County Probate Forms

Footnotes

1. RSMo. 461.000 et seq.
2. RSMo. 442.450.
3. Technically, even probate property, including real estate, descends to the heirs automatically at the moment of death. RSMo. 474.010. However, that right in the estate is subject to the control of the personal representative for the payment of claims. Indeed, a supervised personal representative actually has no authority to manage or sell real estate belonging to the decedent without an order to take charge of the property and, often, a separate order to sell. An independent personal representative has much broader control of real property under RSMo. 473.803 and 473.810. Nevertheless, a title company will always require evidence of the change in ownership. They will typically consider valid evidence to include a representative’s deed (for independently administered real estate), a court’s order of distribution (for a supervised administration), or other probate order. However, the fact that rights in real estate descends automatically is the reason that an Affidavit of Heirship, discussed below, works to establish evidence of title ownership in a property after 1 year has elapsed since death.
4. It should be noted that this form of ownership does not come into existence when a third person, such as an adult child, is placed on the deed. A TBE interest can only be formed if the “5 unities” are present: (1) the unity of interest, (2) the unity of title, (3) the unity of time, (4) the unity of possession, and (5) the unity of marriage. Since a third party is not united with the couple by marriage, a TBE interest cannot form.
5. RSMo. 473.050. See also RSMo. 473.087 (specifying that a will is not effectual to prove title to real or personal property until the will is admitted to probate). The fact that a will must be submitted to probate within 1 year to be effective as a will (in most cases) is one of the many reasons we encourage many of our estate planning clients to consider the use of a Revocable Living Trust as part of their estate plan.
6. Refusal to produce the will can result in your arrest and forcible presentment before the court. RSMo. 473.043.3. The requirement to produce a will includes depository institutions like banks holding the will in a safe deposit box. RSMo. 473.043.1-2. If you know your loved one had a safe deposit box but you are unsure if there may be a will inside, there is a simple petition that can be filed with the probate court to request that the bank holding the safe deposit box perform a will search.
7. RSMo. 474.310.
8. RSMo. 474.320.
9. RSMo. 474.330.1.
10. RSMo. 474.337.1.
11. RSMo. 473.065.1.
12. RSMo. 473.053 (relating to the requirement of witness testimony); RSMo. 473.057 (authorizing witness commissions); RSMo. 473.060 (giving evidentiary effect to the notarized affirmation);
13. RSMo. 473.083.1.
14. RSMo. 473.020.2.
15. RSMo. 473.110.1-2.
16. RSMo. 473.110.2(4).
17. RSMo. 473.157 et seq.
18. RSMo. 473.160.4.
19. RSMo. 473.160.1.
20. RSMo. 473.780 et seq.
21. RSMo. 473.233 et seq. (in supervised estates); RSMo. 473.220 et seq (relating to partnership estates); RSMo. 473.793 et seq (in independently administered estates).
22. RSMo. 473.360 (setting setting a 6-month nonclaim period in an open estate); 473.444 (setting a 1-year statute of limitations on filing claims, whether or not administration was commenced).
23. RSMo. 473.380. Indeed, if the creditor is a collections agency (which is extremely common if the debt is from a credit card or medical debt, etc.), Missouri authority has held that the collections agency is obligated to prove by testimony or competent evidence every step in the chain of title after taking an assignment of the debt in order to establish competent evidence of the claim. Cach LLC v. Askew, 358 S.W.2nd 58 (Mo. 2012).
24. RSMo. 473.097 et seq.
25. RSMo. 473.097.2.
26. RSMo. 473.097.2(2).
27. State of Missouri, Department of Social Services, Division of Medical Services v. Brundage, 85 S.W.3d 43 (Mo. App. W.D. 2002). This case was in the context of a MoHealthnet claim that was filed in probate, but no formal administration had been opened within 1 year. Because no administration had been opened to adjudicate the claim, MoHealthnet was barred from recovery against the affiant. The court found that the small estate statute did not create a cause of action against the affiant, nor was MoHealthnet able to assert a claim for promissory estoppel. It is unclear if there may be other theories that could have worked in this context. Note that this case is distinguishable from In re Cahill, 131 S.W.3d 859 (Mo. App. W.D. 2004), because in that case, a formal administration had been opened within 1 year, and the court simply held that the normal 1-year filing deadline did not apply to MoHealthnet as a taxing authority under RSMo. 473.444.1.
28. RSMo. 473.663.