“Discovery of assets” is a confusing name, but it is an extremely important concept in trust, will and estate law in Missouri. It is authorized by Section 473.340, RSMo, and provides that “[a]ny personal representative, administrator, creditor, beneficiary or other person who claims an interest in property which is claimed to be an asset of an estate or which should be an asset of an estate” may file a lawsuit determining title or right to the property. In essence, it is a court determination regarding whether assets should belong to a probate estate, though it can also be filed to say that property does not belong to an estate and instead belongs to someone else. In the Estate of Lambur, 397 S.W.3d 54, 62 (Mo. Ct. App. 2013).
Generally, the Court’s role in a discovery of assets trial is to determine whether specific property has been adversely withheld from the estate. Id. The Court is to determine the persons who have an interest in the relevant property together with the nature and extent of any such interest. If the court determines that the property belongs to the estate (e.g., arising out of a theft or misappropriation), it should order the transfer of the title and/or possession to the estate.
Unlike with most claims regarding ownership of specific property, discovery of assets proceedings may be tried to a jury. As such, from a practitioner’s perspective, there is much more uncertainty in gauging the potential outcome of a jury verdict as opposed to a judge’s decision. Aggravating this problem is that many discovery of asset proceedings can involve very complicated legal and factual questions: ownership to real property, undue influence, lack of testamentary capacity, fraud, forgery, etc.
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