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What is probate?
Probate is the court supervised process that takes place after someone dies to settle his or her estate. The two main functions of probate are 1) transferring title of certain assets (known as probate property) from the decedent to the appropriate beneficiaries; and 2) ensuring that the decedent's debts are paid. Probate generally occurs in the state where the decedent lived at the time of death, even if he or she has only lived there a short time. One exception is for real estate, which is always probated in the state in which it is located.
If someone dies without a will, what happens?
When a person dies without a will, it is called "dying intestate." The distribution of property is governed by Missouri law, under which the decedent's next of kin usually inherit the property. The major pitfalls of dying without a will are: 1) the decedent's personal wishes regarding who receives particular property may not be fulfilled, and 2) the decedent did not take maximum advantage of tax-saving mechanisms.
The same results can apply when someone has left an invalid will.
In order to probate the estate of a relative who died intestate, you must generally obtain authority from the Probate Court to distribute the decedent's property, depending on the type of property left in the estate.
Do all assets go through probate?
No. Certain property is held in a way that the very terms of ownership control where the property will go after you die. Such property is called non-probate property. An example of non-probate property is a life insurance policy; you specifically state in the policy who will be paid after your death, so it is not controlled by your will. Other assets, such as bank accounts which contain POD or "pay on death" designations, also avoid probate.
What assets are subject to the probate process?
Property that is subject to the probate process is called probate property. Probate property includes assets that the deceased owned individually at death and that have no expressly named beneficiaries.
What assets are not subject to the probate process?
Property that is not subject to the probate process is called non-probate property. Non-probate property includes assets that are held in a way that the very terms of ownership dictates where the property will go after you die. In other words, the document that establishes ownership includes a provision that designates who will receive the property after the owner's death. Examples include:
- Life insurance policies
- Retirement accounts
- Assets held in joint tenancy with survivorship rights
- Assets with transfer on death (TOD) designations
- Assets with payment on death (POD) designations
- Interests in trusts
Who is responsible for probating an estate?
If there is a will, the personal representative named by the decedent in the will is responsible for probating the estate. If there is no will, or the will fails to name an executor, the probate court will appoint someone to handle the process. The personal representative is usually a close adult relative or surviving spouse.
What do I do if I'm named as an executor in someone's will?
If you are named as a personal representative, it is your choice to serve or decline to serve. If you decline to serve and there is no alternative personal representatives named in the will, the court will appoint someone else.
If you choose to serve, you should contact an attorney, who can help you file the appropriate petition papers in Probate Court. You will then have to wait until you are approved by the Probate Court before you can officially act as personal representative.
What assets are subject to creditors' claims against the decedent?
Generally, assets the decedent owned individually at death are subject to creditors' claims. However, even non-probate transfers may be subject, on a pro-rata basis, to claims of creditors.
On what grounds can a will be challenged?
There are five grounds that a will can be held invalid on:
- Undue influence - this ground asserts that a third party coerced the testator into creating the challenged will;
- Mental Incapacity - this ground asserts that the testator was mentally incapable of understanding the significance of creating the challenged will;
- Will formalities were not followed - this ground asserts that the challenged will was not executed in compliance with the law, perhaps due to the fact there were no witnesses, or that the testator did not actually sign the will;
- Subsequent Revocation - this ground asserts that the challenged will was revoked, either by a more recent will or by operation of law (for instance: a subsequent marriage makes any prior will null and void);
- Fraud or Mistake - this ground asserts that the testator was deceived by a third party by a misrepresentation, and the challenged will would never have been created but for that misrepresentation.
Can I challenge a will if I think it is invalid?
If you think someone's will is invalid, you may have the right to challenge the will. In order to challenge a will, you must have "standing." To have standing, you must have a legal interest in the will being probated; individuals such as spouses, parents, children and other family members have standing in a person's will.
If you have standing, you should seek out the advice of an attorney with litigation experience to help you assert your rights.
How can I defend a will that someone else thinks is invalid if I think it is valid?
If someone challenges a will being probated, you may have the right to defend the will. In order to defend a will, you must have "standing." To have standing, you must have a legal interest in the will being probated.
If you have standing, you should seek out the advice of an attorney with litigation experience to help you assert your rights.
What is a breach of a fiduciary duty?
A fiduciary duty refers to the obligation of individuals in certain capacities to treat others equitably and honestly, and to act in their best interest. Such a duty is imposed on individuals such as: trustees, personal representatives of an estate, and guardians.
A number of different acts can be considered a breach a fiduciary duty, including: negligence, fraud, commingling of assets, or failure to perform.
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