In Missouri, the term probate refers to the transfer of property after a person dies. The person who passed, the decedent, typically transfers their property through a last will and testament, through the establishment of one or more trusts, or without a will in accordance with the laws of intestate succession in the state of Missouri.
Probate is not mandatory if the deceased person distributed their assets through a trust, such as a living trust prior to death, or did not have any property when they died. Probate is mandatory if the decedent died with a valid will or without a valid will, but did not establish a trust.
Fees for Probate Administration in Missouri
Fees for an estate to go through the probate process vary by county, even within the same judicial circuit. For example, in Cass County, the fees are:
- Intestate estate and letters of administration: $133.50.
- Testate estate and to admit the will with letters testamentary: $168.50.
- Admit the will to probate: $53.50.
In Boone County, the fees are:
- Intestate estate and letters of administration: $150.50.
- Testate estate and to admit the will with letters testamentary: $185.50.
- Admit the will to probate: $35.
The court may charge additional mandatory fees, including:
- Clerk fee.
- Court automation fund.
- Juvenile justice preservation fund.
- Basic civil legal services fund.
- Law library surcharge.
- Decedent’s annual fee.
- Additional clerk fee.
The additional clerk fee should be assessed and collected from the estate when the final inventory is filed with the court. The fee amount is based on the final inventory value of the estate, past a certain amount. In Boone County, that amount is $50,000.
Probate Process Thresholds
A decedent's estate should be worth over $40,000 to go through the traditional probate process under Missouri probate laws. Prior to their death, a person can help their successors avoid probate by setting up a trust or distributing property in a manner such that the estate is worth $40,000 or less at the time of their death.
If the person owns real estate and does not put the property in trust, it may be difficult to engage in estate planning to avoid probate.
Steps of the Probate Process
During the probate process, the decedent’s property is held and managed by the executor, also known as the personal representative. The two terms are synonymous under Missouri state law. The executor follows the probate court’s rules and procedures to ensure that the estate assets are distributed properly. The steps of probate are:
- Executor hires an attorney to represent them.
- Executor applies for letters testamentary if there is a will admitted, or letters of administration without a will. Letters testamentary are documents issued by the court to authorize the executor to take control of the estate when there is a valid will. Letters of administration are documents issued by the court that authorize the executor to take control of the estate when there is no will or the will is invalid.
- Publish notice to creditors. The date of first publication of the decedent’s death initiates a six-month period for creditors to submit their claims to the court and the executor.
- Sell property if money is needed to pay bills.
- Pay debts, claims, taxes and expenses, then distribute the remaining property. If assets are insufficient to pay all claims, the claims are paid in priority by certain classifications. For example, the funeral bill is paid before a general claim.
- Create a document that shows income and disbursements.
- Get the court’s approval for final distribution and to close the estate.
Typically, the earliest an estate may be closed is within six months and 10 days after the date of first publication. It usually takes over a year to complete an administration, the management of the estate.
Rights of the Surviving Spouse
If the decedent dies with a valid will, the spouse takes whatever the will provides. If the decedent dies without a will, the surviving spouse may receive one half of the estate of the decedent. If the decedent has surviving children and the spouse is a parent of those children, the spouse may receive an additional $20,000.
The spousal share is one-half of the estate if the couple did not have children or one-third of the estate if the couple had children or grandchildren. If the decedent left the surviving spouse less than this amount in the will, the spouse can elect to take against the will.
This means that the surviving spouse takes their spousal share instead of the amount in the will. The decedent cannot provide nothing for the surviving spouse, unless the spouses made a prenuptial or post-nuptial agreement before the decedent passed. The probate court must notify the surviving spouse of the right of election after the will is probated.
Taking Title to Real Estate
A beneficiary cannot receive clear title to real property subject to probate for one year after death unless the property goes through probate. A creditor can enforce a claim to force a sale of real property within a year of the date of death. If the estate is probated, a beneficiary may be able to receive clear title to property approximately six months after the first publication of letters.
Supervised or Independent Administration
The probate court closely oversees a supervised administration. In a supervised administration, the court approves many of the executor’s actions. The executor must file an annual settlement with the probate court to show how they handled financial matters. The probate court engages in a full review and audit of these settlements.
The probate court does not keep as close a watch over an independent administration, which is more informal. There is not a need to file and have a review of annual settlements with an informal administration. The estate may be independently administered if the decedent’s will asks for this or if the distributees, the people named to receive property under the will, all agree.
Small Estate Affidavit
A successor can file a small estate affidavit in Missouri if the estate is valued at $40,000 or less. Filing this affidavit allows the successor to avoid the process of probate. The applicant for a small estate must be named in the will as the executor or be an heir of the estate. The applicant must wait to file this affidavit until 30 days after the decedent passed.
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.