101 South Hanley, Suite 1280 Clayton, MO 63105
314.283.8930; henry@elsterlaw.com

Original Wills, Duplicate Wills

When requesting that a last will and testament be probated, the original will must be presented to the Court. The reason for this is that under Missouri law “a will is presumed destroyed by the testator [i.e., will-maker] with intent to revoke if the will was last seen in possession of the testator prior to […]

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Will Contests: Grounds, Necessary Parties

A last will and testament may be contested on numerous grounds, the most common of which include challenges for lack of capacity, fraud, duress, and/or undue influence. There are strict, specific deadlines for challenging a will. While the deadline varies, a will contest is usually pursued after a will is admitted to probate. An order […]

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Special Fiduciary, Trust Litigation, Breach of Trust

In breach of trust litigation, the plaintiff can request a variety of remedies against the trustee. The remedies include, among other things, damages, removal and/or suspension. In more contentious situations, a probate court does have the authority to appoint a “special fiduciary” to administer the trust, in whole or in part, while the suit is […]

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Will Contest, Multiple Wills, Res Judicata

If a will contest is successful, then the legal effect is that the will is invalid and void. Section 473.083.7 (A will contest determines “intestacy or testacy or which writing or writings constitute the decedent’s will.”). Accordingly, assuming there is no prior will, the Court finds that the person died intestate/without a will in the […]

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Joint Ownership, Probate, Non-Probate Transfer

Typically, only assets that a deceased individual solely owns without a beneficiary designation must pass through probate. Because of this, trusts are often implemented to circumvent probate. Other than trusts, co-ownership arrangements or non-probate transfers are frequently utilized to avoid probate. A non-probate transfer (e.g., transfer on death, payable on death) operates to where the […]

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Additions to Trust, Funding, Lapse

A trust is really only efficacious to the extent assets are titled and owned by the trust. To transfer assets to a trust, there must be a formal conveyance to the trust or trustee of the trust. Certain assets will have to be transferred and re-titled in different ways. With real estate, for instance, there […]

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Time Limit and Deadline to Challenge Will

A last will and testament in Missouri (and other states) may be challenged and voided. The most common grounds for a contest are lack of testamentary capacity, undue influence, fraud and/or duress.  One of the goals in the estate administration process in Missouri is to have a quick, efficient manner of winding down one’s affairs. […]

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Estate Litigation; Time Limit to Appoint Personal Representative/Executor

Missouri’s probate code has two principal goals: (1) provide a speedy method for administering a decedent’s estate and (2) establish a time after which claims are forever barred against an estate. North v. Hawkinson, 324 S.W.2d 733, 736 (Mo. 1959). In furtherance of these objectives, Missouri rigidly applies a general one (1) year limitation period for […]

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Spousal Abandonment, Probate Inheritance

Sometimes very unexpected developments can occur in probate litigation. This is largely because there are very unique probate laws in Missouri. For example, a spouse who “abandons” a deceased spouse waives any inheritance interest he or she may have in the deceased spouse’s estate. Specifically, Section 474.140, RSMo provides that:    If any married person […]

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Incapacity in Litigation, Mental Examination

When a party is adjudged legally incapacitated, a guardian or conservator typically represents the incapacitated individual’s interests in legal disputes. In certain circumstances, however, a party is for all intents and purposes incapacitated but a guardianship proceeding has never been commenced and there has not been a judgment of incapacity. And because individuals are generally presumed to […]

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