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 process ensures that all final bills and expenses are paid and that the 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.
Once the executor or personal representative is identified, certain legal actions should be initiated.
The court is notified of the decedent's death and someone is asked to be the administrator of the estate. If the decedent left a will this person, or persons, is typically named in the will. They are typically referred to as the "executor" or "personal representative" in the will. 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. This list needs to be filed with the probate court.
Assuming all the assets have been collected, all the debts have been paid, and there are no disgruntled beneficiaries or other liabilities, the administrator will submit an accounting to the probate court. If accepted, this closes the probate case and distributions can be made to the beneficiaries.
If everything goes smoothly, the process typically takes 7-12 months to complete once the probate matter is opened. However, it is not uncommon for difficult probate cases to take 2+ years to complete.
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.
Under Missouri law, some estates are entitled to a simplified "probate" process. 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. Depending on the decedent's county of residence, an attorney may not be required. Regardless, many families still 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 a small estate.
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). Additionally, 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.
Want to learn more?
Contact Welch Law to see how we can help.