When writing a will, a person living in the state of Missouri will leave real and personal property to beneficiaries they name in the document. After the completion of the probate process, which includes paying the deceased person's debts, the named beneficiaries receive their inheritance if it was not sold to cover those debts.
A will is not the only way heirs and beneficiaries can inherit a decedent's property. They can receive it through other means including a living trust, transfer-on-death deeds, retirement accounts or insurance policies. If the decedent did not leave a valid will, the state will distribute the person's assets under its laws of intestate succession.
Missouri Law on Wills
A will is a legal document in which an individual, the testator, states how they want their assets distributed after death. A will typically names an executor, or personal representative, who will settle the decedent's estate and distribute the property in the estate to the decedent's beneficiaries.
To create a valid will, the testator must be at least 18 years old, an emancipated minor, a married minor or on active military duty. They must also be of sound mind, meaning they have not been deemed incompetent in a legal proceeding before writing the will.
After writing their will, the testator must sign it for it to be valid. Two witnesses must also sign it in the testator's presence. If a testator cannot physically sign their name, they can direct another person to sign for them, but it cannot be one of the witnesses.
Creating a Living Trust
As an alternative to a will, an individual creates a "living," or "inter vivos," trust when they are alive and names beneficiaries who will receive their assets when they die.
A living trust can save beneficiaries the time, money and hassle of probate. A probate court can tie up property left through a will for months or even years – the property from a trust can be distributed fairly immediately, and sometimes even without the need for an attorney's involvement.
Revocable or Irrevocable Trusts
A living trust can be revocable or irrevocable – an irrevocable living trust cannot be revoked or modified after signing. When estate planning, however, some individuals create a revocable living trust, which they can modify or revoke at any time.
The person creating the trust usually names themselves as the trustee of the trust, which means as long as they are alive they retain control of the trust and property. They also name a successor trustee to manage the trust and distribute the property upon their death.
Having a Will and a Living Trust
While the point of a living trust is to avoid probate, a person may still want a will, even though they may not use it. For example, if they have minor children, a will designates a guardian for those children – a trust does not.
Furthermore, a will accounts for the property that an individual did not transfer into their trust. It's common for people to create a trust and then forget to transfer property into it, or they may buy or inherit property after setting up a trust and don't know how to take ownership of it as a trustee.
In these instances, there will be no distribution of the decedent's property, according to a trust's terms. However, a will dictates the distribution of assets not covered by the trust.
Missouri Probate Administration Process
Probate is a court-supervised proceeding that authenticates a decedent's will and allows for approval of the executor. The executor manages the estate, pays all its debts and taxes, then distributes the remaining property to the beneficiaries.
Under Missouri state law, estates valued over $40,000 must go through the standard probate process. A decedent's will must be filed with the Probate Division of the Circuit Court within a year of their death.
Probate can occur in one of the three ways:
- Informal probate occurs when the decedent's heirs get along and the distribution of assets is smooth.
- Formal probate allows the court to settle various disputes, including those between beneficiaries over asset distribution, the will's meaning, or the decedent's debts;
- Supervised formal probate is court supervision throughout the process.
Small Estate Probate and Distribution of Assets
Missouri has a simplified probate process for estates valued, less liens and encumbrances, at $40,000 or less. In this instance, an inheritor or estate representative files a written request with the probate court to use this procedure. There is a 30-day waiting period for filing a small estate probate.
The inheritor or personal representative filing the will must get an insurance policy protecting the estate (or a bond) equal to the value of the decedent's property.
The person filing for small estate probate is responsible for paying debts owed to Missouri and for giving the beneficiaries what they are entitled to, but the estate must pay for the decedent's funeral and burial expenses before distribution of any assets occurs.
Small Estate Affidavit
The person filing a small estate affidavit must include these statements:
- That a will was presented for probate within a year of the testator's death if there was no notice published, or there wasn't a will.
- That all claims, unpaid debts and taxes have been or will be paid.
- List and valuation of the decedent's property.
- List of names and contact information of people or businesses who possess the property.
- List of names and contact information of people entitled to the decedent's assets and their relationship.
Assets That Transfer Without Probate
Not all of a decedent's assets are subject to probate – some will transfer automatically to others when an individual dies. For example, when a joint tenant dies, the surviving joint tenant becomes the owner of the entire asset. In a tenancy by the entirety, the survivor owns the whole property when the other tenant dies, but this is only available to married couples.
Retirement accounts and life insurance policies already have beneficiary designations. When an individual who holds these accounts or policies passes away, the beneficiaries are automatically entitled to the accounts assets or policy proceeds.
Transfer on Death (TOD) or Payable on Death (POD) bank accounts may also have designated beneficiaries. The account owner typically fills out forms to determine who should receive the account's assets after their death.
Children and Real Estate Inheritance
A person under 18 cannot inherit real property in Missouri in their own name; an adult must manage their inherited property until they become of age. A minor can inherit property in several ways, for example, when an individual dies and leaves a will or trust and names a minor as the beneficiary, a trustee named in the will or living trust will manage the minor's property according to that document's terms.
If a person makes a gift to a minor in Missouri under the Uniform Transfers to Minors Act, the gift is placed in a custodial account until they reach 21. If the decedent leaves money to a minor directly or names them as a beneficiary, the court will appoint a property guardian to manage their inheritance until they reach 18.
Missouri Intestacy Rules if No Will
When someone in Missouri dies without a will, or intestate, their estate is distributed to their heirs according to state intestate succession laws. If a person dies intestate, their entire estate will typically pass through probate.
Missouri does not recognize common-law marriages. Spouses in the state are entitled to the entirety of an estate if a couple has no surviving children. If they do have children, a spouse receives the first $20,000 of the estate's value, plus 50 percent of the estate's balance, and the couple's children receive the remainder. Also, under intestate succession:
- If a decedent has a spouse and descendants from someone other than their current spouse, the current spouse gets 1/2 of the property, and their descendants inherit the remainder.
- If a decedent has parents and siblings, but no descendants or spouse, the parents and siblings inherit the property in equal shares.
- If a decedent has parents but no other family, the parents inherit everything.
- If a decedent has siblings but no other family, their siblings inherit everything.
Spouses and Disinheritance
Missouri does not allow spouses to disinherit each other unless they have a valid prenuptial or post-nuptial agreement.
When a person dies, and their surviving spouse gets less than the statutory elective share (one-half of the decedent's property if they had no descendants, or one-third if they did have descendants) the survivor can elect against the will within a specific amount of time and receive the decedent's exempt property, instead of the adhering to the provisions detailed in the will. This can include, but is not limited to:
- Household appliances kitchen furniture, utensils and implements.
- One motor vehicle.
- Support allowance of one year, per the court's approval.
Calculating an Elective Share
The total money and property of an estate owned by the decedent when they passed are used in calculating a spouse's elective share.
This includes assets that the decedent transferred to someone else or to a trust for someone else before they died (but only if the asset transfer was not in "fraud of marital rights," meaning made during the marriage with the purpose or intention of defeating the surviving spouse’s marital rights). The amount is then:
- Reduced by administration and funeral expenses, enforceable claims, exempt property and family allowance.
- Increased by property and money that the surviving spouse obtains from the deceased without full consideration by means other than family allowance, testate or intestate succession, and exempt property.
Estate and Inheritance Tax
An estate tax, also known as a death tax, applies to the decedent's estate and is levied before the estate assets are passed onto their heirs. The estate tax applies to estates with a specific threshold, which the government levying the tax determines. An inheritance tax is levied on assets after they go to a decedent's heirs.
Missouri has neither an inheritance tax nor an estate tax. However, a state resident may owe inheritance taxes to another state if someone lived in a state that does have an inheritance tax and leaves the Missourian property or assets.
While Missouri does not have an estate tax, the federal government does. It has an exemption for estates up to $12.06 million. This estate tax has portability, which means a married couple has an exemption for an estate valued up to $24.12 million. Estates exceeding the exemption are subject to progressive estate tax, which has a rate of 40 percent.
- Smart Asset: A Guide to the Federal Estate Tax for 2022
- NOLO: Intestate Succession in Missouri
- Smart Asset: Missouri Inheritance Laws: What You Should Know
- Greensfelder: Wills: Missouri
- Legal Consumer: Missouri Inheritance Law FAQ
- NOLO: Make a Living Trust in Missouri
- NOLO: Probate Shortcuts in Missouri
- NOLO: Irrevocable Living Trusts
- Revisor of Missouri: Section 473.097 Small Estate — Distribution of Assets Without Letters, When — Affidavit — Procedure — Fee.
- Missouri.gov: Title XXXI Trusts and Estates of Decedents and Persons Under Disability Chapter 473
Michelle Nati is an associate editor and writer who has reported on legal, criminal and government news for PasadenaNow.com and Complex Media. She holds a B.A. in Communications and English from Niagara University.