- April 15, 2025
- Kelvin Birk
- Estate Planning
Probate is a court-supervised legal process that includes validating a will, appointing an executor or administrator of the estate, distributing a deceased individual’s property, and allowing creditors to state their claim to assets. Going through probate can be stressful, time-consuming, and expensive, but there are many techniques you can use to allow ownership of your property to pass directly to your desired beneficiaries while avoiding probate.
Missouri law states that probate is necessary for estates valued at more than $40,000, and there is a simplified form of probate for estates less than this amount. However, only those assets that are held individually have to go through probate. You can avoid probate if your assets fall into one of three categories. These are:
- Assets that have a named beneficiary
- Jointly-owned assets that pass to a surviving spouse or co-owner
- Assets that are in a trust.
With this in mind, ways to avoid probate include:
- Working with a professional to create a living trust
- Establishing joint ownership of real estate and other property
- Creating “payable on death” or “transferable on death” designations that name a beneficiary to receive your assets.
Be aware that Missouri probate laws are complicated, everyone’s situation is different, and making mistakes can be costly. To ensure your beneficiaries receive what you want them to, with a minimum of delays and problems, it is important to plan your estate now, while you are of sound mind and able to do so; a skilled probate attorney can show you how.
Examining How to Avoid Probate in Missouri
When people die, their taxable estate includes all the assets in which they have an interest at the time of death, but only those assets that are held individually have to go through probate. There are several ways that assets can be passed on to beneficiaries without going through probate. By planning ahead and utilizing properly created and filed documents, you can avoid probate in Missouri.
You should start by creating a will. A will is the basic document that every individual should have; it sets down in writing your wishes for the distribution of your assets after death, allows you to name a guardian for minor children, and appoints an executor or personal representative in charge of carrying out your wishes. However, just having a will alone does not prevent your estate from going through probate — you will also need other types of estate planning documents. Based on your individual situation, you may utilize combinations of the following options:
Set up a Living Trust
All of the assets placed in a revocable (living) trust will avoid probate, shield your wealth from taxes, and provide privacy. Setting up a living trust allows you to transfer real estate, vehicles and many types of property into the trust, which then holds the property.
When you set up a trust, you, the trustor, create a trust document that designates a person, called a trustee, to hold property for your beneficiaries. If you are setting up a revocable living trust, you can make yourself the trustee and still control all property held in the trust while you are alive. You also designate a successor trustee, often a spouse or a child, to handle how your property will be managed and distributed to the trust beneficiaries after you die. Assets such as real estate, bank accounts, vehicles, and collections that are placed in the trust will be transferred after your death to your designated beneficiaries without having to go through probate.
In some situations (such as protecting assets from taxes or a nursing home), you may wish to set up an irrevocable living trust. However, you no longer control the assets put in an irrevocable trust.
Set up Pay-on-Death Financial Accounts
Assets such as insurance policies, IRAs, pensions, certificates of deposit, and bank accounts can, in most cases, transfer directly to named beneficiaries when you die, without going through probate — if you make payable-on-death designations. The beneficiary has no rights to these assets until your death. You should update your beneficiary information periodically, especially if you are adding more children, grandchildren or heirs as beneficiaries or if your beneficiaries pass away before you do.
Use Transfer-on-Death Securities
Stocks and other securities can transfer to your named beneficiaries without going through probate in most cases. To do this, make sure all securities have named beneficiaries and, when possible, back-up beneficiaries.
Set up Joint Ownership of Real Estate and Property
If you and your husband/wife, business partner, or other individual co-own real estate or other types of property, then your stake in these assets automatically transfers to the co-owner upon your death. They do not have to go through probate. This is called joint tenancy with “right of survivorship.” Be aware that there is another form of joint ownership, tenants in common, that will not result in transfer to the surviving owner.
Use Transfer-on-Death Deeds for Real Estate
Missouri allows individuals to pass on real estate to heirs through “transfer-on-death deeds,” which are called beneficiary deeds. You sign and record the deed now, but the real estate does not transfer to your heir until you die. This does not prevent you from selling the property or revoking the deed if you want to, according to Mo. Rev. Stat. § 461.025.
Use Transfer-on-Death Registration of Vehicles
Missouri allows you to transfer ownership of your vehicle to a beneficiary upon your death, and this enables you to avoid probate. You simply name the beneficiary when you register your vehicle.
Create Beneficiary Bill of Sale / Beneficiary Transfer Documents
These estate-planning papers designate beneficiaries for your physical and personal possessions such as household items, furniture, and clothing to be distributed after your death. These documents are generally for tangible, untitled personal belongings, not for titled assets such as vehicles.
Shortcut to Probate: Missouri Small Estates Affidavit
When someone dies in Missouri without a will, a revocable trust, or named beneficiaries, the estate generally must go through probate. However, Missouri has a simplified probate process known as the Small Estate Affidavit. This procedure can ease the burden on surviving family by simplifying the probate process and saving money, time and hassle.
Missouri’s simplified small estate process can be used if the value of the estate is $40,000 or less, after debts such as funeral bills are paid.
In addition:
- There is a waiting period of 30 days after the death to file.
- There must be no pending application for the appointment of a personal representative.
- The estate must first pay funeral costs, burial costs and any debts to the state of Missouri.
- Assets that go directly to heirs must be distributed.
- A bond for the value of the personal property, approved by the judge or clerk of the probate division, is filed to protect the estate.
To start the small estate process, an heir or representative of the estate must file a written request with the local probate court asking to use the simplified process. Your written request must include:
- A statement saying that no will exists or that the will was presented for probate within one year of the person’s death (if no notice was published)
- Valuation and inventory of the deceased person’s property
- Verification that taxes, unpaid debts, and legal claims against the deceased person have been paid or will be paid
- Names and addresses of the people or businesses who have the deceased person’s property
- The names, addresses, and relationship of the individuals who are entitled to inherit these assets
- The name of the person who will receive the property after paying the deceased person’s debts and claims.
Under this simplified process, the court clerk must publish a notice in a local newspaper if the value of the personal property is more than $15,000. This is meant to notify creditors to file their claims against the estate with the court within a year of the date of publication. Mo. Rev. Stat. § 473.097.
The Small Estate Affidavit allows heirs to bypass the full probate process, allowing assets to typically be accessed within weeks, and saving money.
Get Help from a Missouri Probate Lawyer
If you are wondering how to avoid probate with your own estate or that of a loved one, then finding out the legal facts is the first step.
Don’t just assume you can create a will through a website in a few minutes and avoid probate court. In addition to a will, you need to make sure you have a trust or proper beneficiary designations set up for your assets. You should also have other essential estate-planning documents, such as durable powers of attorney and advance healthcare directives to ensure you and your family will be protected.
The experienced probate attorneys at Birk Law Firm can help with everything needed to put your affairs in order, giving you and your family peace of mind. We have decades of experience guiding clients through the probate process and proactively creating customized estate plans that avoid risks inherent with joint ownership, as well as avoiding probate altogether. We can help you, too.
We provide answers to your questions and provide the peace of mind of knowing that everything is done correctly according to Missouri law and your loved ones are protected.
Call us today for a free initial consultation at 573-332-8585.
Attorney Kelvin Birk
Kelvin Birk is a lawyer as well as a certified public accountant, with more than 30 years of experience in accounting and tax and business consulting, and more than 20 years of experience in numerous legal matters. This combined expertise allows our law firm to provide a level of service above that of other firms. Whatever your legal situation, your attorney at Birk Law Firm can counsel you as to the tax implications. We have experience in providing myriad legal representation services to residents of southeast Missouri and other areas.. [ Attorney Bio ]
