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What is Probate?

What is Probate?

Many times, when talking with clients, they will inform me that their primary goal is to avoid probate.  While I largely agree that this is a goal of proper estate planning, many times my clients really don’t know what probate is, or why they want to avoid it so badly.

Probate Court is the place to determine who a person’s lawful heirs to property are after their death.  It is also the place to determine who should be responsible for an individual if they become incapacitated or if a minor acquires property that requires management.  For an incapacitated or minor individual, they can not legally make decisions regarding their own affairs, so the Court oversees someone (usually a family member) who will be responsible to take care of the affairs of the individual who can’t do so for themselves.

Most of the cases in Probate Court deal with deceased individuals.  Usually the family or friends of the deceased are unaware at the death of the individual that things are going to have to go through probate.  They find out when they go to sell that person’s car, or get money out of their bank account, and are told that they have no authority to access the funds or sell the car, etc.

They are usually told that they need letters from the Court.  This is referring to Letters Testamentary or Letters of Administration.  This is the official paperwork that the Court issues that “deputizes” an individual to be in charge of the probate estate.  This person is usually nominated in the will (if there is one), or is agreed upon by the family members (if there is no will).  This person will be required to report back to the Court all of the assets being administered through the Probate Court, and will have to make a full report of all transactions that occurred, as well as get permission to distribute the funds out to the heirs before closing the estate.  Next time, I will go more into the activities that occur during the administration.

Why do I have to go to Probate if my mom/dad had a will that said I get it all?

This is another question that I get all the time, and it stems from a fundamental misunderstanding of what the purpose of a will really is.  A will is instructions to the Probate Court, telling them how they should deal with any assets that they have jurisdiction over.   So, if everything avoids probate (like by having all of the assets in a trust), then the will serves no practical purpose because nothing is going to have to go through probate.  The bank, broker, etc. has no ability to determine if any will is actually the Last Will and Testament, if it meets all the technical requirements for a will, and they don’t want to have the liability associated with those determinations.  So, that’s why they tell the family that they need to go to Probate so that those steps can be completed in the correct legal procedure.

What makes something go through probate?

Typically, an asset (whether that is a house, bank account, car, etc.) will have to go through probate if it is just in the person who passed away (the decedent)’s name alone. Assets that are joint tenancy with someone else (like a spouse) become the sole property of the surviving joint tenant.  Assets that have a beneficiary designation on them can also avoid probate, and assets that are titled in the name of a trust will avoid probate because the trust doesn’t die, it just has a different set of instructions on what to do when the creator of the trust dies, but that is up to the Trustee (trust manager) to follow, and they don’t need to get approval from a Court to implement those instructions.  The trust is generally the most flexible and comprehensive way to plan an estate in Missouri, and this is why I recommend it for most of my clients.

If you have any questions on the probate process, or if you need help with a loved one’s estate (or trust) administration, please contact the office and we can discuss your issues in depth.