- February 9, 2021
- Kelvin Birk
- Estate Planning
Losing a loved one or family member is a terrible time, filled with grief and loss. Not only are you hurting inside, but you also have to deal with funeral details and other legal matters. This is especially true if the person died without a valid will and their estate must go through probate.
If you’re wondering whether you have to do probate when someone dies, the answer is “sometimes.” In Missouri, if a person’s estate is very small, then the law will allow you to skip probate in favor of a simplified process. Otherwise, you’ll go through probate, though this is significantly easier and quicker when the deceased person has a valid will or estate plan with clear directions about how their assets are to be distributed. Without a valid will, probate can be lengthy and expensive. That’s one of the reasons a will is so important – it saves time and money during probate. If there is no will, a probate judge in county circuit court will decide how assets are divided among heirs and beneficiaries based on state probate laws, which may or may not reflect the deceased person’s wishes.
However even without a will, there are some assets that are exempt from going through probate, such as living trusts, jointly owned property with right of survivorship, and accounts whose beneficiaries are named, such as life insurance policies. Bank accounts with Payable on Death (POD) or Transfer on Death (TOD) are also exempt from probate.
The types of assets that do go through probate include things like land or a home owned solely by the deceased person, bonds and stocks in the deceased person’s name, bank accounts with no named beneficiaries, and personal possessions like cars and household furniture belonging solely to the decedent. If this sounds complicated, it can be. That’s where a probate attorney can help.
A skilled Cape Girardeau probate lawyer can explain what happens in probate and answer any questions you may have. At Birk Law Firm, our legal team has years of experience helping clients create estate plans and navigate the probate process. We also handle probate litigation arising from wills or trusts where a beneficiary feels like they’re being treated unfairly. To find out more about how we can help, call us for a free consultation at 573-332-8585.
Do you have to do probate when your spouse dies?
The easiest way to avoid a lengthy probate process when your spouse dies is to create a living trust beforehand and put all of your large assets in it. When you do this, especially when a spouse is given right of survivorship, these assets do not have to go through probate. The assets are retained by the living spouse in the trust.
However, if your spouse dies without a will or trust and owned assets in his or her name alone, then you may be required to go through probate. Missouri allows very small estates, where there are few assets, to skip probate, but larger estates typically require probate.
One of the best reasons for a married couple to create an estate plan, especially if they have children, is to clarify and put in writing their wishes about how assets are to be distributed among heirs and beneficiaries. This way, things are not left up to a probate judge who has no emotional attachment to your family. This can avoid hurt feelings, disputes among family members, and unintended inheritances after one or both spouses die.
The skilled and experienced estate planning attorneys at Birk Law Firm can help you create a customized estate plan that is unique to your situation. One size does not fit all where estate plans are concerned. It’s important to have one that fits your lifestyle, budget and future plans. An estate plan can also reduce your tax liability.
The good news is that since 2005, Missouri does not have its own death or estate tax. However, the IRS may collect federal estate taxes upon death, depending on your situation. You can read more about probate laws in Missouri Revised Statutes Chapters 472, 473 and 474.
How long do you have to do probate after a death?
It takes at least six months to complete probate in Missouri, although it can take much longer, depending on the circumstances and complexity of your situation. The reason it takes at least six months is because that’s how long creditors and other interested parties have to respond to the required public notice. Creditors generally have one year after the date of death to make a claim against the estate for payment of outstanding debts. It’s also important to remember that no probate is finished until federal estate taxes are paid to the IRS.
Other matters can also cause probate to be drawn out for weeks and months. These can include missing or vague estate documents, a will that is contested in court, or an inability to locate certain assets.
Contact a Skilled Probate Attorney Today
Death and dying are stressful and sad under the best conditions. These can be made even worse if there is confusion and chaos around who inherits which assets and how a deceased person’s property is to be disposed of. The best way to avoid bitter family disputes or a tedious and expensive probate process is to create a will and estate plan while you’re still living and in good health. This gives you time to reflect on your wishes and take control of the process. A skilled estate planning attorney can help you create a simple or complex customized plan, depending on your assets and situation.
If you unfortunately find yourself in a probate situation through no fault of your own, then a probate attorney can explain your legal rights, outline the process, and represent your interests if there are legal disputes. Sometimes, just finding out more information can put your mind at ease and help you know which steps to take next. At Birk Law Firm, we would be glad to answer your questions. To find out more about how we can help, call us for a complimentary 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 ]