If you have come to this page because of a recent loss, please accept our condolences. The loss of a loved one is never easy.
We have put this page together to help you navigate the legal steps after a loved one passes. Please see our estate planning terminology page if you are unsure what a term means.
Probate is the legal process of a court overseeing the administration of a decedent’s estate. The probate process ensures all final bills and expenses are paid and remaining assets are properly distributed to the beneficiaries (or heirs) named in the will. If there is no will, or one cannot be found, distributions to beneficiaries are controlled by state law. This is known as “intestate” or “intestacy.”
In any case, there are some important steps the responsible party, if known, should take soon after the decedent’s death. You can learn more about these steps here.
The following steps are a general overview of the probate process and do not constitute every step the personal representative will need to take.
You should notify the court of the decedent’s death and request the court to appoint someone as the legal representative of the estate. If the decedent left a will, this person is typically nominated in the document under the provision for “executor” or “personal representative.” If the decedent did not leave a will, someone will need to ask the court to be appointed to this role. Most commonly the person seeking this role is a close relative such as a surviving spouse, child, or sibling.
After the court approves someone to be in charge of the estate, that person will be responsible for the remainder of the probate case. One of the first duties they will undertake is to complete an inventory of the estate. This is the process of gathering a list of all the assets and debts of the decedent. After completed, the personal representative files this document with the court.
After all the assets are collected and all the debts are paid, the personal representative will seek permission to close the probate estate. To close the estate, the personal representative will submit a final accounting of the estate and ask the court to accept the plan of distribution. If the court accepts this final request, the personal representative transfers gifts to the beneficiaries, closes the legal process, and follows up with any administrative tasks (such as filing taxes when due).
Most probate estates will close approximately 8-11 months after the estate is opened; however, it can take much longer when beneficiaries fight or assets are hard to locate, sell, or transfer.
There are certain expenses the administrator can expect (which are payable by the estate). Court filing fees, publication of the decedent’s death in a newspaper, and legal fees. Lawyers may charge the estate by the hour, or they may default to the Missouri schedule of fees for probate estates. The following table outlines the statutory fees. Note, unless the will states otherwise, personal representatives may take an amount equal to the attorney’s fee.
Size of the Estate: Minimum Statutory Fee:
Less than $5,000 5%
$5,001 – $25,000 $250 + 4% of amount over $5,000
$25,001 – $100,000 $1,050 + 3% of amount over $25,000
$100,001 – $400,000 $3,300 + 2.75% of amount over $100,000
$400,001 – $1,000,000 $11,550 + 2.5% of amount over $400,000
Over $1,000,000 $26,550 + 2% of amount over $1,000,000
Keep in mind, not all of the decedent’s assets have to go through the probate process and therefore may not be subject to this fee structure. Assets with beneficiary designations, transfer on death or pay on death designations, may avoid probate completely.
Many estates with a total value under $40,000.00 will qualify for small estate processing. This process, if there are no disputes, is relatively quick. Although not always required; many families elect to hire an attorney to supervise and guide these small estates through the process. Some attorneys will offer a reasonable fixed fee to handle the small estate process. Welch Law typically provides this service for a flat fee of $750.00.
Estate administration is the process by which the trustee settles the decedent’s estate. Many of the administrative actions will be similar to those in the probate process. For example, the trustee will still be required to collect assets, pay debts, keep beneficiaries informed of his or her actions., and distribute the assets.
However, unlike probate, estate administration of a trust is a private process. So long as no disputes arise, or other legal actions ensue, the trustee is free to administer the trust at his or her pace (within reason). As an additional benefit, estate administration is typically completed at a lower cost than probate. The trustee does have a fiduciary responsibility to the beneficiaries, so care should be taken to ensure proper administration of the trusts assets and the assistance of a lawyer is highly encouraged.
Caution, even if the decedent left a trust, there may still exist a need to probate some assets. It is common for clients to create trusts and over time forget to properly title assets into the trust. When this occurs, those assets not owned by the trust, or transferred to the trust after death, go through the probate process. Trust owners should pay careful attention to their trust’s assets and how the assets are titled and/or to be transferred upon death to avoid this problem.
Want to learn more?
Contact Welch Law to see how we can help.