Probate is a court-supervised process of transferring legal title from a person who has died (the “decedent”) to the person’s distributees. Probate is necessary to protect the rights to the probate estate of a decedent’s heirs, devisees, and creditors. An orderly transfer of property is done aft estate property and debts are administered.

The decedent’s property is held and managed by the personal representative during the administration of the estate. The personal representative makes distribution of the estate to pay claims and expenses and submits a final accounting and proposed distribution schedule to the court for approval.

The earliest that an estate may be closed and distribution made to the heirs or beneficiaries is
approximately six months and 10 days after the date of first publication. However, it often takes a year or more after an individual’s death to finish the administration.

The following are steps in probate administration:

• Hire a lawyer to represent you.
• Apply for Letters Testamentary if there is a will admitted (or apply for Letters of Administration without a will.)
• Publish notice to creditors. The date of first publication starts a six-month period for claimants to submit their claims to the court and the personal representative.
• Inventory and appraise assets.
• Administer the estate and sell property if funds are needed to pay bills.
• Pay debts, claims, taxes, and expenses.

• Claim – a debt or liability owed by the decedent at the time of death, the funeral expenses, and the
  costs and expenses of administering the probate estate.
• Claimant – a creditor who fi les a claim against a probate estate.
• Devisee – a distributee that is named in a will to receive certain property. A devisee may be a person or an entity such as a charity.
• Distributee – person or entity to receive a distribution through probate.
• Heir – a distributee, as determined by the Missouri statute of intestate succession, to receive real or personal property of an intestate.
• Intestate – a decedent who has died without having made a valid will.
• Letters of administration – document from the probate court appointing the personal
  representative of an intestate’s estate (i.e., no will).
• Letters of testamentary – document from the court appointing the personal representative of a testate’s estate (i.e., with a will).
• Personal representative – a person appointed by the court to oversee a decedent’s probate estate. A personal representative is also called an executor or administrator.
• Probate estate – real estate and personal property owned by the decedent and subject to administration supervised by the probate court, including any income after death.
• Publication – notice published in a newspaper in the county where the decedent resided.
• Testate – a decedent who has died leaving a will.

Yes, probate is necessary unless, at death, the decedent did not have any property to be transferred through probate. A person may take steps to avoid probate while alive, such as the following:

• Giving away property;
• Putting property in a trust;
• Setting up joint accounts with right of survivorship;
• Creating pay-on-death (POD) or transfer-on-death (TOD or beneficiary deeds) designations;
• Naming beneficiaries of life insurance or retirement accounts (IRAs); and
• Assigning an interest in a business, personal property, or digital asset.

The probate court serves as a forum through which creditors of the deceased can protect their claims and seek payment. Also, the personal representative can collect payment of any debts owed to the decedent, as well as seek the recovery of property owned by the deceased in the possession of others.

Claims and family allowances against an estate shall be paid by the personal representative before the heirs and devisees can receive their distributions. If there are not sufficient assets to pay all claims and allowances, they are paid in proportion by certain priority classifications (for example, the funeral bill must be paid before general claims).

An important function of probate is to assure payment of any tax liability. A probate estate must have a federal taxpayer identification number (TIN). A fiduciary income tax return may have to be filed for the estate. The fiscal year for tax purposes can start with the decedent’s date of death.

The administration of the estate normally may not be closed until taxes (state and federal) have been paid, including the death transfer taxes, the decedent’s final income taxes, estate income taxes, and real estate and personal property taxes.

Estate taxes must be paid on probate assets and other assets transferred at death over a minimum amount. That amount is subject to change by Congress each year.

The administration of any probate estate involves the payment of certain expenses. The expenses usually encountered in the average estate fall into four main categories.

1. Bond premiums: The probate estate may have to pay for a bond for the personal representative to guarantee the proper handling of the estate. All distributees of the estate or the decedent in the will may waive the necessity of a bond if allowed by the court.
2. Publication costs: A notice to creditors must be published announcing that the estate has been opened. A Notice of Intention to File a Final Settlement or Statement of Account must be published before the estate can be closed unless it is waived in writing by the distributees.
3. Court costs: Every estate must pay costs based on the size of the estate being administered and the
   services the court is called upon to provide.
4. Personal representative’s commission and attorney’s fees: Missouri statutes provide for a minimum fee schedule for each. Compensation more than this scheduled fee may be paid upon an order of the court or upon consent of all distributees. The minimum scheduled fees are based on a percentage of the amount of money and personal property administered in the estate. This percentage is based upon a graduated scale as follows: 5% of the first $5,000; 4% of the next $20,000; 3% of the next $75,000; 2.75% of the next $300,000; 2.5% of the next $600,000; and 2% of everything more than $1 million.
   For example, an estate in which $110,000 is administered would generate a personal representative or minimum attorney fee of $3,575 each (6.5% of estate for both fees).

The administration of a decedent’s probate estate 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.

In cases of supervised administration, a personal representative will have to obtain a court order to take possession of or sell the real estate unless the will gives the personal representative that authority. It does not technically form a part of the probate estate unless it is necessary to sell the property to pay debts or for other reasons as set out in Missouri law.

It is impossible for the heirs or devisees to sell or receive clear title to the property subject to probate for one year after death unless it goes through probate. In Missouri, probate may be opened and administered and a will may be filed within one year after the decedent’s death.

Similarly, creditors may take actions to enforce claims which could force the sale of real property within a year of the date of death. However, if an estate is probated, the period in which the title to the real property can be so affected is reduced to approximately six months after the first publication of letters.

Two types of probate administration are permitted by Missouri probate law – “supervised” or “independent.”

A supervised administration is closely monitored by the probate court. The court must approve many actions of the personal representative, who must also file annual settlements that are fully reviewed and audited by the probate division.

Independent administration is more informal and eliminates the need for supervision by the probate division and annual settlements. An estate may be “independently” administered if so designated in the deceased’s will or if all the distributees agree.

If a decedent’s estate is valued at less than $40,000, a small estate certificate may be obtained 30 days after the decedent’s death by a distributee without going through the full probate process. The distributee, called an “affiant,” must file an affidavit promising to use the decedent’s assets to pay debts and distribute the property according to law. Publication is required unless the estate is valued at less than $15,000.

Surviving spouses and the decedent’s minor children can file what are called “refusals of letters” to have their statutory allowances paid from a decedent’s estate if the estate is valued at a lesser amount than the allowances. Creditors can also reach certain assets, such as bank accounts, to pay their bills by filing creditor refusals of letters if the estate value does not exceed $15,000.

Determination of heirship can be accomplished if, within a year of the date of death, no probate estate was opened and no will presented for probate. A petition may be filed to obtain a judgment determining heirship. Another alternative is an affidavit of heirship if acceptable to a title company insuring the title.

Yes, when a regular decedent’s probate is undertaken. A lawyer is required to represent the personal representative in both supervised and independent administrations in Missouri. A lawyer can assure that all deadlines are met and avoid mistakes and delays. A lawyer can sometimes help explain the process to family members to prevent disagreements over various issues.

Some people may file small estate affidavits and letters of refusal for spouses, minor children, or creditors without lawyers. But using a lawyer can avoid costly mistakes, especially if real estate is involved.