Welch Law, probate lawyer, helps guide families and loved ones in the legal areas of Probate, Estate Administration, Trust Administration, and Intestate Administration. While similar, each of these areas of law has its own unique challenges and concerns.
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. We hope this guide helps you during this difficult time.
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Probate is the legal process of a court overseeing the administration of a decedent's estate. You may, or may not, need a probate attorney for this process. 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."
The responsible party, sometimes called the "executor" or "personal representative", will begin to take actions soon after the decedent's death. You can learn more about these, here.
Notify the Court:
If the decedent left a Will, then the executor will present the Will to the court. If the decedent did not have a Will, then an interested party (usually a surviving spouse, child, sibling, or close family friend) will notify the court.
During this process of notifying the court, the person will normally also seek the court's approval to become the Administrator of the estate (a.k.a. executor or personal representative).
The Administrator will commonly hire a probate attorney to assist in this process.
Administering the Probate Estate:
Upon the court's approval of the Administrator, the named Administrator will begin handling the assets of the decedent's estate. This process starts with the submission of an inventory of all the estate's assets and debts. During the next several months, the Administrator will be responsible for collecting assets, managing assets, paying debts, and more depending on the nature of the estate's assets.
This person will typically work closely with several other advisors such as: a probate attorney, an accountant, and sometimes financial managers.
Finalizing the Probate Estate:
After all the assets have been collected, all the debts have been paid, and assuming there are no disgruntled beneficiaries or other liabilities, the administrator will submit an accounting to the probate court. Upon acceptance, this closes the probate case and distributions can be made to the beneficiaries.
When things go smoothly, the process typically takes 7-12 months to complete. However, it is not uncommon for difficult probate cases to take 2+ years to complete.
The Cost of Probate:
There are certain expenses the administrator, and beneficiaries, can expect. These include: court filing fees, publication of the decedent's death in a newspaper, and legal and other fees charged by professionals. The following fee schedule is outlined in Missouri's Probate Code.
The following table outlines the statutory fees awarded to both the estate administrator and the probate attorney, as of March 1, 2019:
Size of the Estate: 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. Some probate attorney's may have a separate fee schedule to help clients with these assets, so it is important to ask what other fees may be involved.
Missouri Small Estates
Estates with a total value less than $40,000.00 will qualify for small estate processing. This is a simplified process and typically takes significantly less time to complete. You may not even need a probate attorney for this process in some counties.
Even where not required, many families will choose to hire a probate attorney to guide them through the small estate process.
There are several other ways to collect decedent's assets if they are lower in value and certain conditions exist.
For example: Spousal or Minor Refusal of Letters, or Creditors Refusal of Letters, may be used to collect estate assets if they are less than $15,000.00 (in most counties). Special circumstances must exist in order to use these tools, and not all cases will qualify.
Trust administration is the process by which a trustee manages a Trust. 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, or other legal actions, arise, the trustee is free to administer the trust privately.
Additionally, trust administration may be less expensive, may take less time, and is substantially more private than probate administration. 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.