Probate gets a bad rap. Most of the disgust with the Probate system in Missouri stems from the fact that those involved in probate are rarely involved with the legal system and don’t know what to expect. Moreover, it is often the case that a loved one has passed away, so emotions are obviously in play.
Probate has many different aspects. See my previous posts on different facets of the probate process: Letters Testamentary and Letters of Administration, Revocable Living Trusts, Beneficiary Deeds, Life Insurance Trusts, Missouri Will Contests, Durable Powers of Attorney, Will Requirements, Funding Trusts, Probate: Intestacy, etc.
The first step in a potential probate estate occurs not long after an individual has passed away. That person’s heirs should first look to see if there is a will, trust, or non-probate arrangements in place. It could be the case that the estate, in whole or in part, may not need to go through a probate proceeding.
For our purposes, let’s assume that an uncle dies without a will, trust, or other testamentary arrangement. The first step would be to get a grasp of all of the property that person owned and open up a probate proceeding. After this, publications and notices are usually sent out to warn potential creditors and interested parties.
From here, a personal representative(s) will apply for letters testamentary to administer the estate. It is probably a good idea for the personal representative to have an attorney to advise him/her what is or is not required. It is here that I get the most questions about the probate process. How much does an attorney and/or personal representative charge to handle a probate proceeding?
Missouri statutes provide guidance here. RSMo 473.153 states in pertinent part that personal representatives and/or attorneys are entitled to the following compensation from a probate estate:
On the first $ 5,000, 5 percent;
On the next 20,000, 4 percent;
On the next 75,000, 3 percent;
On the next 300,000, 2 3/4 percent;
On the next 600,000, 2 1/2 percent;
On all over 1,000,000, 2 percent.
Accordingly, the attorneys and personal representative take a percentage of the probate estate. While it may seem disagreeable for heirs to see that attorneys can take a percentage of a probate estate, it often is better than billing heirs hourly or with a flat fee.
In addition to these fees, the probate court will require a fee to handle a case, the size of which depends on the size of the estate. Also, in certain situations, a personal administrator may be required to post bond to ensure to the Court that he or she will execute the job faithfully.
These costs highlight two things. One, it is important to have an estate plan in place (trust, will, non-probate, etc.) to avoid potential inheritances from being depleted by probate expenses. Two, the probate process is long, convoluted and can prove costly.