Why Do People Hope to Avoid Probate?

By: Brittany E. O’Brien and Heather Rooney McBride

When a person dies, the first question one should ask, when determining how to divide the decedent’s estate, is whether there is a will. If there is a will, that will should state who the executor is and how the decedent wanted his or her estate to be distributed. If a person dies without leaving a will, the person is said to have died intestate. In this situation, the beneficiaries are determined by Missouri law, specifically Section 474.010 RSMo. There are many possible scenarios that can occur as to who is left when you die and who will inherit what, but here are some basics:

If a person dies intestate, the beneficiaries cannot contest the Court’s distribution of the estate under Missouri law. Even if the decedent had been clear about having different wishes, it doesn’t matter if there was no will. To be valid, a will must be in writing, signed by the testator/testatrix (person making the will) and two witnesses. The testator also must have been eighteen (18) years or older and have been of sound mind when making and signing the will. The witnesses need to sign in the presence of the testator and ideally they need to be disinterested (not named as beneficiaries of the will). Having witnesses that are not disinterested does not invalidate the will, but it could affect their ability to inherit and makes it more likely that there will be a will contest or dispute.

Once it is determined that an estate needs to be opened in probate, the proper paperwork and pleadings need to be prepared by an attorney and filed with the probate clerk. All probate estates are public record. This is one of the main reasons that people do not want to have to administer their estate in probate. Another disadvantage is time. Once an estate is filed in probate, creditors have six (6) months to file a claim on the estate. Until that time runs and all creditor claims have been determined to be valid or invalid, none of the assets of the estate can be distributed. This means that the beneficiaries will need to wait about a year before any assets will be distributed to them. This can be a big burden to a spouse that has not been working or a child that needs to pay for college.

There are ways to avoid having your assets go through a probate. First, have transfer on death or TOD designations on your vehicles. Second, designate beneficiaries on all your bank and other accounts. Third, speak to an attorney who can prepare beneficiary deeds for your real estate. These actions will keep some, and potentially all, of your assets from having to go through probate, depending on the size and nature of your estate.

However, the most complete way to make sure all assets are kept out of the probate process is to form a trust and transfer all of your assets to the trust. Trusts are fairly complex documents and are drafted to fit the unique circumstances of the individual. If the trust is revocable, the person making it can change it at any time. The best way to know what you can do to provide for your loved ones and make sure your estate is distributed according to your wishes is to speak with an attorney who specializes in estate planning.