- September 28, 2021
- Kelvin Birk
- Estate Planning
Going through probate can be time consuming and expensive, so it’s a good idea to do everything you can to avoid probate or to streamline the probate process. With a little planning, avoiding probate in Missouri is possible, and our skilled probate attorney can show you how.
The most obvious things to do to avoid probate include:
- Work with a professional to create a living trust
- Make your financial accounts “payable on death”
- Make your securities “transferable on death”
- Establish joint ownership of real estate and other property
- Create transfer-on-death deeds for real estate
- Create transfer-on-death registration of vehicles
Generally, the assets excluded from probate 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
If you are concerned about avoiding probate, that is understandable. Our skilled probate attorney at Birk Law Firm would be happy to answer your questions and explain your options for minimizing probate’s effect on your estate. To find out more about how we can help, call us for a free initial consultation at 573-332-8585.
A Closer Look: How to Avoid Probate in Missouri
There are several documents in the estate planning toolkit that can simplify the process after you pass away. These documents, when properly created and filed, will help your loved ones avoid probate in Missouri. Planning ahead can be one of the biggest gifts you ever give your family.
Understanding How a Will Works in Missouri
A will is a basic document that every individual should have. A person doesn’t need to be rich or even have a spouse and children to benefit from creating a will. A will simply sets down in writing your wishes for the distribution of your assets after death. These can involve assets like the house you live in, your grandmother’s furniture, or even direction about the future care for your pets. You can also leave any detailed information about the location of keys, post office boxes, life insurance policies, and checking/savings accounts as a companion document with your will. Keeping all this information in one place is a good idea.
However, it’s important to understand that simply having a will does not mean that your beneficiaries will avoid going through probate court upon your death. In fact, having a will alone — with no other planning documents — means going through probate is almost a certainty. At the very least, the court will need to assess the will to ensure that it is valid. From there, the entire estate could end up going through probate when the estate only has a will.
However, this does not mean that you should not have a will. Just the opposite: you should. A will gives your beneficiaries the information they need for handling your affairs. But you will also need other types of estate planning documents if you want to avoid your estate going through probate court. Here are important planning documents that can help you avoid probate, starting with the extremely important revocable living trust.
This is by far the best option to avoid probate in Missouri in most circumstances. All of the assets in a revocable (living) trust will avoid probate. Having a trust also can help you avoid some of the problems occasionally encountered with joint ownership and beneficiary designations. Many families can benefit from a trust. A trust is nothing more than a legal tool that greatly expands your options and enables you to manage your assets in multiple ways. It can shield your wealth from taxes so you can pass it on to future generations.
In a living trust, a person transfers real estate, vehicles and many types of property into a trust, which then holds the property. A trustee manages the trust. The trustee is typically the trust maker when it’s a living trust, otherwise known as a revocable trust. This means the trustee can change it at any time. (If the person who created the trust gives up the power to terminate or change the trust, then the trust is called irrevocable.) When you create a living trust, you can name a “successor trustee” who takes over when you die or become incapacitated. This successor trustee can then distribute the assets directly to your heirs, thereby avoiding probate court.
Pay-on-Death Financial Accounts
Assets such as insurance policies, IRAs, pensions, and bank accounts can, in most cases, transfer directly to named beneficiaries when you die, without going through probate. You want to update your beneficiary information periodically, especially if you are adding more children, grandchildren or heirs, or if your beneficiaries pass away before you do.
Stocks and other securities can transfer to your named beneficiaries when you die without going through probate in most cases. You’ll want to make sure all securities have named beneficiaries and, when possible, back-up beneficiaries.
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.” However, another form of joint ownership, tenants in common, will not result in transfer to the surviving owner.
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. A person would sign and record the deed now, but there is a delay and 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.
Transfer-on-Death Registration of Vehicles
Missouri allows you to transfer ownership of your vehicle upon death to a beneficiary, and this enables you to avoid probate. You simply name the beneficiary when you register your vehicle.
Can You Avoid Probate in Missouri Without a Will or Any Other Planning Documents?
Shortcut to Probate: Small Estates
When someone dies in Missouri without a will or other legal documents, such as a revocable trust, the estate generally must go through probate. However, there are shortcuts to probate in Missouri if you meet certain guidelines. Avoiding or simplifying the probate process can save you money, time and hassle.
You can use Missouri’s simplified small estate process if the value of your estate, minus encumbrances and liens, is $40,000 or less. You will have to wait a 30-day period before starting, and you may have to get a bond in the amount of the value of the personal property. This provides an insurance policy to protect the estate. The estate must pay funeral costs, burial costs and any debts to the state of Missouri before you receive your inheritance. You must also distribute to other heirs the assets they are entitled to.
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 no will exists or 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.
Contact a Missouri Probate Lawyer Today
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. When you contact an experienced probate attorney at Birk Law Firm, we provide answers to your questions.
Don’t just assume you can create a will through a website in a few minutes and avoid probate court. Yes, you should have a will, but you also need other important documents, like a revocable trust, to avoid probate. We can help with all of the items 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 help them avoid probate altogether, avoiding the risks inherent with joint ownership and other techniques. We can help you, too. Call us for a free 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 ]