Probate refers to the type of courts which primarily handle the estates of those that have died (“decedents”). The probate courts are designed to as “efficiently” (some clients would say I use that term loosely) to handle claims against a decedent’s estate by creditors and then transition assets out of the decedent’s estate to his/her heirs (if any).
Probate proceedings must be opened within one (1) year after a decedent passes away. The most common way to open up a probate proceeding is for an individual or entity to apply for letters of administration or letters testamentary in the appropriate probate court (i.e., the probate court in the county of the decedent’s domicile). The existence and stipulations of a will (if any) will determine what type of letters should be issued. The court will review an applicant’s qualifications to ensure that he/she is duly qualified to serve as personal representative of the estate. Once appointed, the personal representative will act as a fiduciary toward the estate to wind up the affairs.
There is no doubting that the probate process is expensive. The personal representative is entitled to reasonable compensation for serving as personal representative. A decedent’s assets are often used to pay for court costs and maintaining property. And, under Missouri statutes, attorneys are entitled to a percentage of a probate estate as a minimum.
It is often the case, then, that people try to desperately avoid probate. The two easiest way to do this are to co-title assets by creating contractual POD/TOD arrangements or creating trusts (revocable or irrevocable living trusts). Before taking such steps though, it’s important to thoroughly consider the ramifications. Co-titling is often a blunt instrument that can lead to unintended consequences and trusts are an extremely specialized testamentary instrument.
Also note that the power of the probate court is not limited to managing decedents’ assets. Trust modifications and legal disputes involving minors are often delegated to probate courts.
If you have concerns or questions with respect to either avoiding the probate process or handling a probate proceeding, please don’t hesitate to contact us for a free consultation.