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  Probate Questions and Answers

Many people plan their estates by creating a document called Last Will and Testament.  The will is a legal document that tells how you want your assets distributed at death.  Joint tenancy property and life insurance proceeds pass without a will.  A will does not become effective until you die, and then it goes into probate.  A revocable living trust is a method of control for your estate while you are alive, incapacitated, or dead.  No probate costs or time costs.  You name the trustee for each situation.  This is just one example of why we need to establish our family of professionals for advise and planning early in life to last past the end.  Setting up a trust, creating your durable power of attorney all need the proper professional to assist.


What is probate?

Answer : It is the court process whereby certain assets titled in the name of the deceased are transferred to his or her beneficiaries. This process takes place in the Probate Division of the Circuit Court – usually in the county in which the deceased permanently resided at the time of death. The Probate Division has been established primarily to protect the rights of one’s heirs, beneficiaries under a will and creditors, and to assure the orderly transfer of property.

What is meant by the term “intestate” ?

Answer : When one dies leaving a will, we say that the person died testate. If one dies without a will, the person is said to have died intestate. In the situation involving no will, the beneficiaries are the individuals named under Section 474.010 of the Missouri Probate Code.

Is there a time limit when I should get the will on file with the Probate Division?

Answer : Yes, you need to file the will or if the deceased was intestate, to get an estate opened within one year from the date of death. If more than one year has elapsed, then you need an attorney to file a Petition to Determine Heirs.

Once an estate is opened in the Probate Division, how long does the probate take?

Answer : The earliest that an estate may be closed and the assets distributed to the heirs or beneficiaries is approximately 6 months after the opening of the estate. However, it is unusual for all administrative duties to be finalized within that period of time. A good estimate for most probate estates is 7 to 10 months from the beginning to the closing date.

What are the expenses incurred in the administration of a probate estate?

Answer : The expenses usually encountered in the average estate fall into four main categories: (a) bond premiums for an indemnity bond to be purchased by the Personal Representative (also commonly referred to as executor) unless waived by the will, by all the beneficiaries or sometimes, by the Probate Division; (b) publication costs for two notices during the administration of each estate; ) court costs and (d) fees to the Personal Representative and Attorney.

How much are the Personal Representative and the attorney’s fees?

Answer :
The fees paid are based upon the size of the estate and the amount of work performed. Section 473.153 sets forth a minimum fee schedule for the Personal Representative and the attorney. These fees are based upon a percentage of the value of the personal property administered and of the proceeds of all real estate sold under order of the probate court. This percentage is based upon a graduated scale as follows: 5% of the first $5,000; 4% of the next $20,000; 3% of the next $75,000; 2.75% of the next $300,000; 2.5% of the next $600,000 and 2% of everything over $1,000,000. Frequently, family members appointed to serve as Personal Representative will waive their claim to fees.

In smaller estates, the statutory minimum fee will not be enough to compensate the lawyer for the work involved. The lawyer may suggest an alternative, such as payment for work done on an hourly rate or perhaps a higher percentage than that provided by the statute.

If the deceased did not leave detailed records regarding his or her assets, how can the Personal Representative find out about the assets?

Answer : Once appointed by the Probate Division, the Personal Representative has a specified period of time to file an Inventory listing those assets owned by the deceased and subject to the jurisdiction of the Probate Division. However, if the Personal Representative believes that someone may be hiding assets or may have improperly disposed of them, the Personal Representative can file a Petition to Discover Assets against those individuals who may be holding/hiding the assets. Keep in mind that banks and brokerage houses are generally very cooperative in providing information to a Personal Representative so a Petition to Discover Assets would rarely be filed against a bank or brokerage house.

Are records in the Probate Division open to the public?

Answer :
Yes. This is one of the reasons that individuals with substantial assets will frequently dispose of their assets through a revocable living trust.

What is the difference between “supervised” probate administration and “independent” probate administration?

Answer : Supervised administration is closely monitored: the Probate Division reviews and approves many actions of the Personal Representative and audits the annual accountings (also called settlements). Independent administration is more informal and eliminates the need for supervision by the Probate Division. An estate may be “independently” administered if so provided in the deceased’s will or if the beneficiaries consent.

When faced with handling the family’s probate properties there are quite a number of thoughts that come into play.  From just getting rid of it, all the way to the need to maximize return on the property.  The logistical difference between being local or cross country from the property makes a difference.

 If family is in a position to clean up and handle the personal items, household items, furniture, years of accumulation, and furnishings you are off to a great start.  If not I can refer you to auction services that you can drop off boxes of items.  It is also common to have an auctioneer come in and auction auto, house, and contents.  A charitable institution can give you a receipt for tax purposes.  There are also services to refer for cleaning, handyman repairs, painting, etc.  In some situations deep cleaning and fix up can be avoided by my listing the property “as is”.  The price representing current condition and room for an owner occupant’s sweat equity.  An investor would offer much less.  Many times there is years of deferred maintenance and or what some call being dated.  When the situation is such that you really need to get more out of the property even though there is no margin for the cost of staging I have a few tools to enhance the perceived value of the listing without dropping the list price.  Some of the ideas are for broadening the market to more buyers.   Leasing, lease purchase, installment purchase, and rent to own are a few.  Often this becomes more practical due to having an in house property management division.

Houses really do sell in any market.  To launch a sale we need a solid platform supported by the three legs of marketing, staging and pricing.  When two out of three legs are marginal the house will be on the market for an extended time.  Sometimes a listing that languishes in inventory will have a negative stigma that will need to be adjusted by freshening the listing.  There are times when a listing has been listed for too long and all the tools have been used that it is better to take it off the market for 60 days to reset the clock to zero and totally remarket it several months later.

Principal Realty Group does Short Sales, in house.  This is for those situations where monthly payments can not be made, and there is not enough equity in the property to refinance. 


Normally it is a matter of providing whatever level of service that best serves the client and the property.


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