Probate As It Affects People That Have Died (End of Life FAQ)

The information contained on this site does not constitute legal advice and you should not believe that you have entered into an attorney- client relationship with an attorney because you have viewed this page. This information applies only to the laws of the State of Missouri  and Illinois in the United States of America.

What is a will?


A will or “Last Will and Testament” is the way that a person expresses their wishes (or their “will”) as to how their financial affairs should be concluded after their death. Most importantly, it indicates who the testator (the person whose will it is) wishes to receive their assets. But this is not all that a will does; it also can set the parameters for how administration proceeds, including who should be the personal representative (once known as “executor”) and how carefully the court should oversee their actions. In particular, a will can make probate go more quickly and easily so that there are much lower attorney fees during the administration of the estate. Parents of young children might also use a will to designate whom they wish to be guardian of their minor children.

The mechanics of drafting a will are still largely governed by the “Statute of Wills” first passed by the English Parliament in 1540! More often than not, the wills that people try to draft themselves or that they draft based on forms in an office supply store or software package, are not effective and end up costing their estate more money than they save them. If you are interested in drafting a will, I hope that you will contact my office or the office of another attorney.


What if I die without a will?


In the State of Missouri, if you die without a will your assets will be distributed pursuant to the Missouri laws of intestacy. These laws set up what the state legislature believes is the default ways that most people want their property distributed. Usually, first to their spouse and children. If you are unhappy with the way these statutes work, you may write a will to override them and distribute your money in, essentially, any way you wish. The generation of a will does not avoid probate; however, it will direct how probate operates. In addition to changing how the money is spent, it can also make probate operate more easily and with fewer attorney fees. If you are interested in drafting a will, I hope that you will contact my office or the office of another attorney. More often than not, the wills that people try to draft themselves or that they draft based on forms in an office supply store or software package, are not effective and end up costing their estate more money than they save them. A will can also be useful if you have children under the age of eighteen and wish to designate a guardian for the children in the event of a tragedy to both parents.

What do I need to prepare to be able to write a will?


Normally, an attorney will give you very a very specific list of things that you should 
bring when you visit their office to write a will. This
normally includes a list of all of your assets, deeds to any property you own or have owned recently, any documents that may effect your marital status, such as recent divorces, a copy of your birth certificate, names, addresses, birth dates, and social security numbers for all people you wish to leave property to, as well as such information about yourself, detailed information about your assets and where they are located and in what form they are in. Once this information is reviewed, an attorney can draw up a very personalized will. Needless to say, the form wills that you can buy in an office supply store or generate through a software package do not nearly go through all of this information in the way that an experienced, trained attorney can. I would always recommend that you consult with the attorney, with whom you are working, to find out exactly what materials they wish you to bring when you meet with them.

What is probate?

Probate is the process by which a decedent’s assets and liabilities are finally resolved so that their assets can be distributed to those that are entitled to them. In this process, a “personal representative” is appointed to act on behalf of the decedent. (In the past personal representatives were sometimes known as “executors”) This personal representative then collects all of the assets of the decedent, attempts to account for all of the liabilities owed by the decedent, pays off those liabilities, and distributes the remaining property either pursuant to Missouri Statutes or pursuant to a will left by the decedent. In Missouri, this process can take a minimum of six months, unless a shortcut proceeding is used or with no open-ended timeframe if there are complexities to the estate, like an on-going business.


What is a trust?

A trust is one of the most loosely defined characteristics in our entire legal system. Roughly, because this is such a flexible legal area there can be as many types of trusts as there have been attorneys to draft them since the early days of our legal system when it began in England hundreds of years ago. Essentially, a trust is when one person, the “trustee,” is given the authority to manage an asset or assets on behalf of someone else that benefits from this money, the “beneficiary”. Normally, the “settler” or “grantor” of the trust, in other words the person who creates the trust, grants this power to the trustee. In many cases, one ore more of these rolls can be filled by multiple people, such that the grantor of the trust may also act as the initial trustee and even be the initial beneficiary. There might be multiple beneficiaries to the trust so that there are alternate or residual beneficiaries. A trust can useful in a great variety of circumstances to accomplish what you could otherwise not be able to accomplish. These circumstances vary greatly from such diverse areas as the investment of funds in real estate to efforts to legally avoid taxation from the government to management of assets on behalf of a minor or someone else not able to manage their money properly. Most often when people talk about trusts in the context of probate, they are talking about an inter vivos trust created to avoid probate completely, by using the trust to pass assets to the people they wish these assets pass to, without any probate proceedings at all. If you are interested in drafting this sort of trust or any sort of trust, I hope you will contact my office.

What is joint-tenancy?

Joint tenancy is a means by which many people attempt to avoid probate. It is a relatively simple mans, because it is easy to designate various bank accounts as “joint tenants with right of survivorship” or “JTWROS,” such that is then legally owned by two people and automatically becomes the property of which ever one of those people survives the other. Joint tenancy, of course, has many uses besides the avoidance of probate in terms of control of an account by spouses or other people who are jointly entitled to the same property. Joint tenancy is frequently used as a means to avoid probate, but there are many potential disadvantages to this. For example, joint owners are immediately permitted full access to any asset which they own, regardless of whether their joint tenant is alive or not, such that on a joint bank account, normally either joint tenant can completely exhaust the bank account at any time without consulting the other joint tenant. Moreover, the creditors of either joint tenant also could potentially have rights to that bank account, regardless of who deposited the money in that account initially. Of course, it goes without saying, that a surviving joint tenant is viewed as a sole and only owner of that property and any understandings about how they might distribute that property do not have the enforceability that a will does. Moreover, if joint tenancy is used to distribute extensive property, pursuant to informal agreements upon the death of a joint owner, it may result in gift tax consequences, which would not otherwise have occurred.


Do I need a will?


There is no possible way that this question can be answered for any given person without thorough consultation with an attorney. However, this said, I can think of very few circumstances where people would not be better off with a will than without one. Even people, who have done extensive trust planning, always include a will as a back up to such trust plans. Younger people, who are relatively low risk of passing away, frequently wish to have a will to provide their wishes regarding guardianship of their children. Young people who do not have children, but who are over eighteen, might wish to have a will because the intestacy statutes are less likely to distribute their property in the ways that they agree with. In short, I can think of very very few circumstances in which I would not recommend to somebody, that they draft a will.


How do I contest a will?


Will contest is one of the most complex legal proceedings around. It is extremely unusual, even when compared to other sorts of lawsuits. Whenever you wish to contest the ways in which a will distributes property, I would always recommend that you consult an
attorney first, before taking any other action. Moreover, I would recommend that you make this consultation as quickly as possible as there are very short deadlines for contesting a will after it has been filed with the probate court.

A will can be invalidated for a number of reasons, but very rarely is. The most frequent reason why it is invalidated is that it is a product of undue influence. That is, somebody with access to the decedent caused them to distribute their property to them by using undue influence upon them. A will might also be invalidated because the testator was not competent to make the will at the time it was drafted. There are also a number of technical reasons why a will may be invalidated. The most frequent and common of these reasons is, of course, if the testator has invalidated it, presumably by the drafting of a subsequent will. Wills might also be frequently invalidated because they have not been properly executed in terms of the number of witnesses or the formalities with which the testator signed it. It is for these reasons that I will always recommend that an attorney be consulted in drafting and executing a will. I should also note here, that a will contest is not necessarily the only way to challenge the distribution of an estate. A will contest is only a means for actually challenging the validity of a will. There are a number of factors that can effect the distribution of an estate that may be challenged in court in substantially simple proceedings that may well have a better chance of effecting the distribution of the outcome of an estate.


How do I stop someone else from taking money or property that should go to me?


The first step you should always make if you believe an estate is being distributed improperly, is to contact an attorney.

How do I change the title on bank accounts, cars, or land?

This question, of course, depends upon how the asset is originally titled. For example, a jointly titled asset can frequently be changed to the name of a surviving owner simply by presenting a death certificate to the Title Company, bank, or Department of Revenue, in the case of an automobile. Assets can be changed with similar ease, if they are denoted transfer on death (“TOD”) or pay on death (“POD”). If an asset is not titled jointly, but is titled in some other way, for example, the name of the decedent alone, it can be more complex to change the title on that asset. Indeed, if an asset is owned strictly by someone who has passed away, it is likely that that asset cannot be transferred without the consultation of an attorney, who will, in turn, file matters in a probate court. This is not necessarily mean that these matter will be extremely costly, complex, or time consuming, but probably require the consultation of an attorney.

How do I file a claim against someone who has died?

In Missouri courts, there is a very simple form that can be filled out to assert a claim against an estate of someone who has died. It must
be filed in the probate court where the estate is being probated. This is normally the court of the county in which they were living at the time of their death. There is an extremely short time limitation, in most cases, for filing claims against a decedent. The mere filing of this claim does not assure that it will be paid, depending upon the type of procedure being used to distribute this probate estate. Often, additional vigilance is required to assure that this claim is not only filed, but also actually paid by the personal representative. Most attorneys are equipped to file the claim in the best possible way to assure that it is not only properly filed in the correct time periods, but also paid by the personal representative, if such payment is appropriate. I would recommend that if you have a claim against someone who has died, you consult me or another Missouri attorney, to assure that your claim is properly filed in terms of both its form and its timeliness. If you attempt to make a claim against the assets of a decedent whose estate is not currently being probated, this can become much more complicated because you may, in fact, be forced to open the probate proceedings necessary to distribute their assets. Once again, this is probably best accomplished with the advice of a competent Missouri attorney.

How do I collect money that someone owed me?

This is normally what is called a claim. Many people use the word claim against a probate estate to mean a number of other concepts, like money they believe that they should inherit from the estate. However, a claim is actually money owed by a decedent to someone else for services they performed either before or after their death, in some cases. Yet, if someone owes you money, the time period which they are given to pay it back, that is the statute of limitations, by which time you must file your claim in order for it to be legally enforceable, is greatly shortened by a person’s death. For this reason, it is important if anyone owes you money and passes way, that you take immediate action to assure that the money that they owe you is paid or your claim is filed against their estate.

The information contained on this site does not constitute legal advice and you should not believe that you have entered into an attorney- client relationship with an attorney because you have viewed this page. This information applies only to the laws of the State of Missouri in the United States of America.







Comments