ALTERNATIVE PROBATE PROCEDURES IN MISSOURI
January 25th, 2017
ALTERNATIVE PROBATE PROCEDURES IN MISSOURI
BY: Brittany E. O’Brien and Heather Rooney McBride
When a person dies, sometimes probate cannot be avoided if it becomes necessary to settle a decedent’s affairs under court supervision. Pursuant to Missouri law, a probate case can incur significant costs of administration and can progress at a slow and unfamiliar pace for interested and often anxious persons. It is not unusual for probate cases to last a year or more. It is little wonder then 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 circumstances exist for a short-term probate procedure, a probate case can be settled much more quickly. The following is a brief description of several alternative short-term probate procedures.
Application for Refusal of Letters for a Surviving Spouse or Unmarried Minor Children
A Court can refuse to grant letters, which means that the Court will not issue testamentary letters, if a will or letters of administration are admitted to probate. Issuing letters either testamentary or of administration results in a personal representative being appointed.
A refusal of letters can be used so that the surviving spouse or child can get that property allowed by law as exempt property under §474.250, RSMo. or the property 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 under §474.250, RSMo. and would meet the allowance granted to a surviving spouse and minor children under §474.260, RSMo. After an application for refusal of letters is filed, it should be ruled upon by the Court within 60 days.
Application for Refusal of Letters to a Creditor
If the personal estate of the decedent does not exceed $15,000, and there is no widow(er) or unmarried minor children, then 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 priority, and distribute the balance, if any, to the persons entitled to such balance under applicable law. After the application for refusal of letters to the creditor is filed, it should be ruled upon by the Court within 60 days.
When the net value of the probate estate is less than $40,000, the heirs can file what is called an Affidavit for Collection of Small Estate. 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 but less than $40,000, then 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 usually be processed by the Court in 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 usually required, because evidence must be presented. Notice must be given to interested parties and published in a newspaper. At the hearing, the Court is asked 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
If a nonresident decedent owned property in Missouri, a short-term probate procedure can be utilized. The proceeding in Missouri is an original proceeding conducted under the laws of the State 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 is the same as for a resident of Missouri.
If you have a friend or loved one who passed away in Missouri, the attorneys at Rooney McBride and Smith, LLC can help you determine if a probate action needs to be filed and if it is possible to minimize the time involved by using an alternative probate procedure.