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Probate Assets: Discovery

In a Missouri probate proceeding, one of the personal representative’s main jobs is to account for a decedent’s property. Unfortunately, it is sometimes the case, as a client told me recently, that before an estate can be administered in probate a family member will literally ransack the decedent’s home and take property. Fortunately, however, there is a specific cause of action for this in Missouri.

Proceedings to discover assets are adversarial proceedings within the probate court’s jurisdiction under 472.140(2), RSMo. Therefore, the typical adversarial requirements in a civil case — petition, service of process, answer, Discovery, etc. — are required. In the case of assets that are believed to have been wrongfully taken from a decedent’s estate, a petition needs to be filed by someone who has standing (typically, this is the personal representative via letters testamentary or letters of administration).

In the petition, there needs to be as thorough of a (1) description of the missing property as possible (if known), (2) the nature of the Petitioner’s interest in the property (e.g., an heir or it falls within the authority of the personal representative to distribute the property), (3) allegations that title or possession of the property is being adversely withheld/claimed.

Element (1) is easy. Simply state property that you know the decedent owned or possessed and plead it sufficiently in the petition. Element (2) is easily met because almost 100% of the time the personal representative has standing to file the petition and thus has an interest in the property to administer the estate. Finally, Element (3) should simply how the person’s taking of the property was unlawful.

Lastly, there must be a request for relief via a specific legal cause of action. Depending on the circumstances, anything from conversion, to replevin, to even the imposition of a constructive trust may or may not be the best course of action.

Based on the foregoing, the law has certainly contemplated situations when individuals raid a decedent’s estate just after death to take property. There is recourse.

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