Probate. This singular word stirs negative thoughts in the minds of many individuals. For many, the possibility of probate is something to be avoided like a natural disaster or a physical illness.
When a person dies, sometimes probate cannot be avoided. It becomes necessary to settle a decedent’s affairs under court supervision. For this article, probate means a judicial procedure to administer a deceased person’s assets. Under Missouri law, a probate case can incur significant costs of administration and move at a slow and unfamiliar pace for interested and often anxious persons. It is not unusual for probate cases to last ten (10) months and sometimes more than a year. It is little wonder why the thought of probate often generates negative reactions.
There are, however, certain probate procedures under Missouri’s Probate Code that take a shorter period of time to complete. If the right circumstance exists for a short-term probate procedure, a probate case can be settled more quickly. Some short-term probate procedures recognized under Missouri law are a refusal of letters to a surviving spouse or unmarried minor children, refusal of letters to a creditor, a small estate affidavit procedure where the estate is less than $40,000 in value and a petition for determination of heirship. Administration of nonresident decedent estates also can use short-term probate procedures in Missouri for assets located in Missouri. A brief description of each short-term probate procedure is mentioned below.
Application for Refusal of Letters for a Surviving Spouse or Unmarried Minor Children
A Court can refuse to grant letters. Refusing to grant letters means that the Court will not issue letters testamentary if a will is admitted to probate or letters of administration if the
decedent died without a will. Issuance of letters either testamentary or of administration appoints a personal representative to start a probate case.
The estate of the decedent in a refusal of letters situation can be for that property allowed by law as exempt property under §474.250, RSMo. and the allowance granted to a surviving spouse and minor children under §474.260, RSMo. There is no dollar limit on the value of assets that can be included in a refusal of letters to the surviving spouse and unmarried minor children as long as the assets are exempt property items mentioned under §474.250, RSMo. and would meet the allowance granted to a surviving spouse and minor children under §474.260, RSMo. After the application for refusal of letters is filed, it should be ruled upon by the court in 60 days if not sooner.
Application for Refusal of Letters to a Creditor
If the personal estate of the decedent does not exceed $15,000 and there is no widower, widow or unmarried minor children, any creditor of the decedent may apply for refusal of letters. The creditor will sell the assets of the decedent, pay the debts of the decedent in order of their preference and distribute the balance, if any, to the persons entitled to such balance under the law. After the application for refusal of letters to the creditor is filed, it should be ruled upon by the court in 60 days if not sooner.
Affidavit to Establish Title Where Total Estate is Less Than $40,000
The net value of the probate estate must not exceed $40,000. Thirty days must pass from the decedent’s death before the small estate affidavit can be filed. If the net value of the estate is greater than $15,000 plus less than $40,000, two publications in a local newspaper are required. A probate estate with a net value of less than $15,000 does not have a publication requirement.
Often the small estate affidavit procedure is used by members of the decedent’s family other than the spouse or unmarried minor children. A bond could be required by the court but often it is waived. The affidavit must represent that all debts, claims, demands and estate taxes have been or will be paid. The liability of the person signing the affidavit is limited to the value of the property received. A small estate affidavit can be usually processed by the court anywhere from two to six weeks.
Petition for Determination of Heirship
A petition for determination of heirs can only be pursued when no administration of the decedent’s estate has commenced and no will has been presented in Missouri within one year of the decedent’s death. A court hearing is required. Evidence must be produced. Notice must be given to interested parties. Notice must be published in the paper. At the hearing, the court is directed to enter a decree determining who the heirs are and their respective interests in the decedent’s property. The case can usually be resolved within 90 days of its filing with the court.
Nonresident Decedents Can Dispense With Administration
Nonresidents can pursue short-term probate procedures in Missouri. If a nonresident decedent owned property in Missouri, a short-term probate procedure can be used. The proceeding in Missouri is an original proceeding conducted under the laws of Missouri and is independent of and not ancillary to the proceedings in any other state. The timing involved in a short-term probate proceeding for the nonresident decedent should be the same as for a resident of Missouri.
If probate administration must be pursued in Missouri, pause to consider if any of the short-term probate procedures could be used. Ask our probate attorneys for help in determining whether the probate experience in Missouri can be shorter.