Question: What is probate?
Answer: Probate is the process whereby assets of a decedent are transferred to his or her beneficiaries. The probate process usually takes place in the county in which the deceased permanently resided at the time of death. Creditors of the estate are given an opportunity to file claims against the estate and receive payment of those claims. After all expenses are paid the remaning assets of the estate are distributed to the beneficiaries.
Question: What is meant by the term "testate"?
Answer: When a decedent passes leaving a will that person has died testate.
Question: What is meant by the term "intestate"?
Answer: If a decedentt passes without a will it is called intestate. Under the Missouri Probate Code, if one dies without a will, the beneficiaries are the ones named under RSMO 474.010.
Question: How long do I have to open an estate?
Answer: If someone died intestate you must file the will within one year from the date of death. If more than one year has elapsed you will need to file a Petition to Determine Heirship.
Question: Are there assets that can be transferred without oversight of the probate courts?
Answer: Yes. Non-probate assets include life insurance policies, an IRA account, a 401(k) account or any other taxed deferred retirement account with a named beneficiary.
Question: How can the personal representative (or executor) find out what assets the deceased held?
Answer: The personal representative, once appointed by the court, has a specified time to file an initial inventory with the court. If someone is hiding assets or if they were improperly disposed of, the personal representative can file a Petition to Discover Assets against those individuals holding or hiding those assets.
Question: Are probate court records open to the public?
Answer: Yes. To keep records private individuals with substantial assets will dispose of assets through a revocable living trust.
Question: What is a revocable living trust?
Answer: This is a type of trust that takes effect during the testator's lifetime and can be changed or terminated at any time. The testator can retain control over the property during his or her lifetime by naming themselves as the trustee, and they can name a successor trustee to take over the trust administration at the testator's death. The property in the trust is not considered property of the testator at his or her death, thereby allowing the property to bypass probate.
Question: What is supervised probate administration?
Answer: Supervised probate administration is a more formal probate process whereby the Probate Division reviews and approves many actions of the personal representative and audits the annual accountings.
Question: What is independent probate administration?
Answer: Independent administration is a more informal method of navigating through the probate process. An estate may be independently administered if provided in the deceased's will or if the beneficiaries consent.
Question: How do I get access to the deceased's safe deposit box?
Answer: You can get access to the deceased's safe deposit box in order to do a will search. If a will is found, the bank or trust company will send the will to the Probate Division or give it to the family to file with the Probate Division.
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If you need help navigating through the probate process or avoiding probate entirely, Contact Us at the Law Offices of Stephen J. Hoffmann.