If you have recently lost a loved one in Missouri, the process of administering his or her estate will, in many cases, involve some element of probate. Probate is the formal legal process for executing the terms of a decedent’s will or determining what to do with the decedent’s estate if he or she did not leave a will. Even if your loved one established a trust or used other types of non-probate transfers in his or her estate plan, it will still be necessary to resolve certain matters through the probate court. While some people choose to handle probate on their own, it is generally best to work with knowledgeable Springfield probate lawyers who can guide you through the process if, for some reason, you are unable to avoid the probate process altogether.
Many questions need to be answered during probate, and there are many steps involved in the probate process. The information below is intended to be a resource for family members who have been named as personal representatives, devisees, beneficiaries and guardians, as well as for those who have not been specifically named in their loved ones’ estate plans.
Who is Responsible for Administering Probate?
In Missouri, the individual who is responsible for administering a decedent’s probate estate is referred to as his or her “personal representative.” The personal representative can be selected in one of two ways: (i) by designation in the decedent’s will, or (ii) by appointment of the court.
If the Decedent’s Will Names a Personal Representative
If the decedent left a will, the will most likely includes provisions for the appointment of a personal representative. If this is the case, then the decedent’s choice of personal representatives will be controlling – provided that the will is valid and enforceable. The decedent’s personal representative will need to file the necessary documents with the appropriate court, and this will formally initiate the probate process. Typically, this is the stage at which the designated personal representative will seek assistance from skilled Springfield probate lawyers.
If the Decedent Did Not Leave a Will (or the Will is Silent)
If the decedent did not leave a will (or if his or her will does not name a personal representative), then a personal representative will need to be appointed by the court. Any individual seeking to be appointed as the decedent’s personal representative must file a petition, with the decedent’s spouse being given first priority. If the spouse is unable or unwilling to serve, then the decedent’s heirs have the option to select a personal representative by majority vote. If the heirs cannot make a selection, then the court will hold a hearing to appoint a personal representative.
If the Chosen Personal Representative is Unable or Unwilling to Serve in the Role
What if the decedent appointed a personal representative in his or her will, but the chosen personal representative is unable or unwilling to serve? This could be the case, for example, if the chosen personal representative has died, or if he or she is uncomfortable assuming responsibility for administering the decedent’s estate.
If the decedent’s will includes provisions for the appointment of a “contingent” (or “backup”) personal representative, then this individual will be entitled to serve in the role. If not (or if the contingent personal representative is unavailable), then a personal representative will need to be appointed pursuant to the process discussed above.
What Does it Mean to Be Named as Someone’s Personal Representative?
A personal representative is responsible for administering the decedent’s final affairs. But, what does this mean, exactly? In Missouri (and in other states), personal representatives have both legal duties and legal rights.
Personal Representatives’ Duties in Missouri
The most fundamental of the personal representative’s duties is the “fiduciary duty.” As a fiduciary of the decedent’s estate, the personal representative is obligated to act in the best interests of the estate in all matters pertaining to probate. Acting in this fiduciary capacity, the personal representative must administer the estate according to the terms of the decedent’s will (if any) and in compliance with Missouri law. Some examples of the personal representative’s more-specific duties include:
- Notifying the Social Security Administration and Veteran’s Administration (if applicable);
- Identifying, gathering and safeguarding the decedent’s assets;
- Filing life insurance claims (if applicable);
- Filing income and estate tax returns; and,
- Maintaining records of all transactions involving estate assets.
We provide a more in-depth discussion of the personal representative’s role below in the section titled, “5 Basic Steps in the Probate Process.”
Personal Representatives’ Rights in Missouri
Once formally appointed by the court, the personal representative has the right and authority to act on behalf of the estate in all probate-related matters. This means that the personal representative has the right to take actions such as:
- Obtaining appraisals of estate assets;
- Paying relevant expenses out of estate assets;
- Determining when estate assets can be distributed to devisees and heirs;
- Interacting with the probate court and taking formal legal action on the estate’s behalf; and,
- Engaging legal counsel to assist with administering the estate.
5 Basic Steps in the Probate Process
While the time, cost and complexity of administering probate will depend on various factors related to the decedent’s estate (as well as any disputes among the decedent’s family members), the probate process can be boiled down to five basic steps:
1. Opening the Estate
The first step is referred to as “opening the estate,” which essentially means initiating probate proceedings by submitting a petition with the appropriate court. Although a personal representative has not yet been formally appointed at this stage, if the decedent’s will names a personal representative or if the heirs are in agreement regarding who the personal representative should be, then this individual will typically open the estate with the assistance of our Springfield probate lawyers.
2. Providing Notice to Creditors
Once the estate has been opened, the personal representative’s next major step is to provide notice to the estate’s creditors. If the decedent had any debts at the time of his or her death (such as a mortgage, car loan or credit card balance), then these debts generally remain obligations of the estate. However, creditors cannot seek payment indefinitely, and providing legally-compliant notice starts the clock for creditors to assert claims against the estate.
3. Paying Creditors, Prepare and File Tax Returns
Once the notice process is over, the personal representative’s next major step is to pay any valid creditor claims. Creditors that timely submit valid claims are entitled to payment before estate assets get distributed to devisees and heirs. Additionally, prior to any distributions, the deceased individual’s estate must be finalized by filing his or her final personal tax returns, as well as any applicable estate tax returns.
4. Distributing Assets to Devisees and Heirs
After paying the estate’s creditors, the personal representative must then ask the court for permission to distribute the estate’s remaining assets to the decedent’s devisees and heirs. If the decedent left a will with clear instructions, then this could be a fairly straightforward process. On the other hand, if there are ambiguities in the will, then the personal representative may have various issues to resolve prior to distributing assets from the estate.
5. Close the Estate
Finally, once the personal representative has fully discharged his or her duties, then the estate can be “closed.” This is the end of the probate process.
Let our Springfield Probate Lawyers Help You Today
If you have questions or concerns about the probate process, or if you would like to know how you can avoid the probate process completely, do not hesitate to contact any one of our well-versed Springfield probate lawyers as soon as possible. Contact us online or call us toll-free at 877-376-5291.