After a loved one passes away, you may have a lot to deal with, including issues a probate lawyer can help you with. Our Cape Girardeau probate attorney can lighten your burdens and provide important legal services to help you with your loss. Kelvin Birk assists many families through this difficult period. He listens to clients, answers their questions, and gets the process moving in the right direction.
Kelvin Birk can also help you create an estate plan. It may make the probate process go smoothly, making your death easier on your loved ones. Every adult should consider having an estate plan, especially if you are married, have children, own real property or expensive personal property, have a retirement account, or want to leave money to a charity.
If you recently lost a family member, contact a probate lawyer at the Birk Law Firm for a consultation to help you through your loved one’s probate process. Call us today for help at 573-332-8585.
Our Cape Girardeau Probate Attorney Can Make the Probate Process Easier
You can make the probate process more manageable if you create an estate plan. Regardless of your age, you should start thinking about estate planning as soon as you leave your parents’ home. You will most likely own some property, even if it is only a vehicle. Eventually, you may buy property, have a family, and want to support a church or nonprofit organization.
Most people do not think of dying at an early age. However, illness or an accident can take your life or leave you incapacitated at any age. Should you suffer from a personal injury or become severely ill, estate plans protect you by ensuring that your personal and financial affairs are taken care of prior to your death.
The estate plan could consist of several documents, including:
- Medical Power of Attorney: This document lets your doctors and family know how to make certain decisions on your behalf. You also nominate someone to make decisions for you in case you can’t make them yourself. Normally a physician will turn to your next of kin, but if that’s not who you want to have making healthcare decisions for you, a medical power of attorney can help.
- Financial Power of Attorney: Even if you’re the victim of a serious car accident or medical condition, your bills don’t stop coming. If you’re unable to manage your affairs long enough, you could have tax problems, your car may be repossessed, you might be evicted from your apartment or lose your house to foreclosure. This document allows someone you trust (your agent) to handle your financial affairs should you become incapacitated or no longer want the responsibility. You can assign your agent as little or as much responsibility as you choose. Financial and medical powers of attorney could prevent a guardianship process where someone asks the probate court to make decisions for you because you’re incapacitated.
- Will: In most cases, the will tells the probate court your final wishes, including those regarding the disbursement of your assets and who should care for your children. You can provide support to non-family members and charities through a will, which won’t happen if you pass away without one. If there’s no will, after your debts and taxes are paid, remaining assets will go to your next of kin. If they’re not who you want to benefit from your lifetime of work, you need a will.
- Trusts: A trust sets aside assets so they’ll benefit you, other people, or a charitable organization. There are several types, which can be funded during your life or with assets from your estate after you pass away. You may be able to change the trust, or not, depending on your goals. In most cases, if an asset is in a trust, it doesn’t have to go through the probate process. You can also use trusts for managing taxes and to maintain some privacy since trusts can be kept confidential, while probated wills are public documents.
Cape Girardeau Probate Lawyers Navigate The Probate Process
Whether your loved one died with or without a will, you must take certain steps to go through the probate process. This process may be simpler if your loved one had a will or a complete estate plan.
A person dying without a will dies “intestate.” The court divides the decedent’s assets based on Missouri probate law. You might not want your assets going to certain relatives, but you will not have a choice if you do not have will or an estate plan. Your will or estate plan names someone you trust to oversee your estate – an administrator – and directs the administrator to distribute your assets according to your wishes.
When you have a will, you name the administrator. The will must still go through the probate process, but because you made your wishes clear, the process is usually faster.
After a person dies, your estate must pay your debts and taxes. Once the estate pays the debts, the administrator can distribute your assets as directed by your will or estate plan. In most cases, these actions go through probate court, but there are exceptions to the full probate process for some estates. The administrator can ask for a small estate certificate if a decedent’s estate has a value of less than $40,000.
Your First Step in the Probate Process is to Locate the Will or Estate Plan
If you believe your loved one left a will or an estate plan, locate the estate documents. Once you locate the documents, even if another attorney is holding them, contact your probate attorney at (573) 332-8585 to schedule an appointment to start the probate process. You – or your attorney – must file your loved one’s will with the probate court.
If you do not believe your loved one left a will or other estate documents, including a trust, you should also contact a probate lawyer at Birk Law Firm to help you through the probate process.
When a Loved One Dies With a Will
While the existence of a will clarifies the wishes of the person who has died, there are many steps involved with the process of settling the estate. When you work with our Cape Girardeau probate attorney, you can rely on our knowledge and experience to guide you at every step. There is a specific process to follow. The will should name an executor or administrator, called a Personal Representative in Missouri. This person is in charge of the estate. The court must then appoint an executor. In most cases, it is the person named in the will, or, if provided for, an alternate person named in the will.
Once the court names the executor, it issues Letters Testamentary, which allow the executor to manage the decedent’s estate, including organizing the estate’s assets and liabilities. Once the executor locates and identifies the decedent’s assets and liabilities, he or she must file an inventory with the court.
Creditors file claims with the probate court if the decedent owes them money. The executor uses cash and may sell estate assets to cover debts and taxes. After the executor pays the decedent’s bills, he or she can then disburse any property left. Once the executor disburses the assets to listed beneficiaries, the probate court closes the case.
The process is generally the same when there is no will, though the personal representative is chosen by the judge, not named as an executor in the will. Instead of distributing assets to beneficiaries in the will, they would go to next of kin as described in Missouri law. If you want to understand what’s involved with settling an estate, talk to our probate lawyer for help.
Our Probate Lawyer Explains the Two Types of Estate Administration
This estate administration process carried out by the court-appointed administrator (the Personal Representative) can be supervised or independent. The court decides which method is appropriate for your loved one’s estate. Each has unique elements.
- Supervised estate administration: In this case, the court approves most executor actions. This is the more common option. This option provides more protections for the executor if there are disagreements among heirs or beneficiaries or if the will or assets are unclear or controversial in some way.
- Independent estate administration: This method is faster, simpler, and less expensive. The executor handles most issues without court permission. Then, he or she reports to the court after the process is complete. When the executor operates independently, usually all heirs must consent to this method.
Common Questions Asked of Our Probate Attorney
No, all estates do not go through the probate process. Those that don’t are usually those of a person with little or no assets or where estate planning was done to make the process unnecessary. If the decedent left a trust, the assets in the trust usually skip the probate process. However, if the deceased had a will, it must go through the probate process to determine its validity. Probate may not be something you need to avoid. Structuring your assets to avoid probate may result in costs and hassles that aren’t worth the benefit, so talk to us about whether this would be right for you.
An estate plan could consist of a will, one or more trusts, living will, powers of attorney for financial and/or medical actions, and other estate documents. At Birk Law Firm, each person’s estate plan is customized and created solely for that person’s circumstances and wishes.
You should have estate planning that’s tailored to you and your family’s needs. It can be very simple because you don’t have many assets and you want to name the person making medical decisions for you if you cannot. Or you could own businesses, have many types of assets, and several children, in which case your estate plan should be much more comprehensive. After speaking with an attorney, you decide what’s right for you.
That person might bring a lawsuit against the estate in probate court. If a will is well-written, it helps to prevent this. However, a relative who believes he or she was jilted could still bring a lawsuit against the estate.
Missouri requires specific actions when creating a will. One of those is that the maker must be of sound mind. If the court determines that the decedent did not properly sign the will or invalidates it for any other reason, the probate court handles the decedent’s estate as if he or she died intestate.
You should create a will as soon as you become an adult. Even if you do not have any assets, you can use a will to let your loved ones know how to handle your funeral and burial. As you purchase real and personal property, you can add the assets to your will.
Missouri requires that you be of sound mind when you create a will. You must also sign the will in front of two witnesses. You must also be at least 18 years of age or emancipated.
While Missouri law states that anyone can witness your signature on your will, it is better to have two people who are not related and do not have an interest in the will. When you use an attorney to help you create an estate plan, your attorney’s staff can witness your signature.
The best way to revoke a will is to create a new will to take its place.
Many of the questions clients ask our probate lawyer relate to documents involved with the estate, so it is important you understand the role of each document in the probate process. Planning ahead makes it smoother, and working with a probate attorney makes it easier.
Our Probate Lawyer May Keep You and the Estate Out of Trouble
An executor should retain a probate lawyer to protect the estate and himself or herself. There are rules to paying bills and distributing funds for an estate, so it’s not handled like a household. You can’t spend money and pay for things as you please. There are stringent rules on what an executor can and cannot do. Violating those rules could cause you problems.
Experienced probate attorneys in Cape Girardeau at Birk Law Firm know the potential legal minefield of handling an estate. Heirs and beneficiaries might accuse you of wrongdoing. If a judge agrees with them, the probate court can hold you financially responsible. A probate lawyer can represent the estate in case there are legal disputes involving family members or creditors.
Probate disputes could include:
- An heir can challenge a will’s validity. If the heir is successful, the court could disregard the will and treat the estate as if the decedent died intestate.
- Family members might have copies of other wills. The court will have to determine which will is the newest will and whether that will is valid.
- The executor might decide the estate is not required to pay a bill submitted by a creditor. The creditor could challenge that decision in hopes of securing payment.
Probate Litigation May Be Needed to Resolve a Dispute
Although you should avoid litigation during probate, sometimes it’s your best option. If you’re a personal representative of an estate, you may be sued, so you need to defend yourself and the estate. If you’re involved in a probate dispute, the other party may be so unreasonable that settlement isn’t possible. The Birk Law firm represents all parties involved in the probate process who have valid legal claims or need a defense in probate litigation.
Any type of estate planning document or its administration could be subject to legal action. Family members may “take the gloves off” and get into heated disputes over assets and property after elderly or chronically ill parents die.
The dispute could be over inheritances, money, real estate, or items that may have little financial value but have sentimental value to family members. Different treatment in wills or trusts could result in lawsuits filed in probate court.
Some of the litigation our probate attorney handles includes challenging and disputing wills and trusts. Parties may disagree over how a will should be interpreted or whether it’s valid. A party may claim that the person who created the will was unduly influenced by another or wasn’t competent enough for the will to be valid. Multiple wills may be found, and the court will decide which, if any, should be probated. A will that doesn’t provide for a spouse or children could be challenged.
Creditors may also challenge an administrator’s decisions over which debts and obligations should be paid and how much. A large estate that’s deeply in debt could have several parties fighting over unpaid debts.
Similar issues can arise with trusts, but they also have their own disputes. A trustee may be accused of wasting resources or spending assets on themselves. A beneficiary may claim the trustee isn’t providing them with what they’re entitled to get under a trust. A lawsuit could also seek the removal of a trustee. An overly complex trust that creates multiple strings attached to spending on beneficiaries could be challenged.
Guardianships are also decided in probate court. A concerned family member may want a guardian (a court-appointed person to supervise the person’s affairs) for an older or disabled person. The guardian would make the decisions the person (or ward) cannot. The court would decide whether the person is incapacitated and, if so, by how much. The degree of help that’s needed would also be decided.
The person subject to the process could disagree with the claims that they’re incapacitated or could assert that they only need limited help in handling their financial affairs. More than one person may want to be a guardian, so a dispute over who should get the job could also arise.
Rather than face a potential legal minefield on your own, talk to our probate lawyer as soon as you see issues arise. An even better approach is to work with an attorney from the start to ensure you have strong legal guidance to anticipate and prevent probate problems.
An Experienced Negotiator for Your Probate Needs
Most probate disputes are decided without going to trial. Usually differences are worked out through negotiation before lawsuits are filed. Sometimes it takes the cost of litigation in time, money, and energy to bring the parties to an agreement. A probate attorney in Cape Girardeau who is knowledgeable about the law and is an experienced negotiator may get far better results than if you tried to do this alone.
Whether you need help with a smaller estate or you’re dealing with a complex estate with many parties arguing about what should happen next, your Cape Girardeau probate lawyer at Birk Law Firm can counsel and represent you. Call our office today at 573-332-8585 to schedule a consultation.
Work with a Probate Attorney in Cape Girardeau You Can Trust
Not only is Kelvin Birk a probate attorney, but he is also a certified public accountant. He has more than 30 years of experience in accounting and business consulting and more than 20 years of experience representing clients in numerous legal matters. Call our office today at 573-332-8585 to schedule a consultation.
ALL YOUR LEGAL NEEDS
Why Choose Birk Law?
Birk Law Firm is a small firm by choice that is big on client services. Attorney Kelvin Birk and his team are responsive to their clients’ needs. When we sign on as your law firm, you can count on us for strong legal counsel, from negotiations to settlement to trial.
Our clients benefit from the intertwining of Kelvin Birk’s legal and CPA background and experience. We provide well-rounded advice to solve both legal and financial issues and to come up with creative solutions. We use modern technology to deliver legal services in a more efficient and client-focused manner than was previously possible.
We provide personalized and compassionate service. We believe that each client’s matter is the most important matter in the world to them, and we strive to treat it that way.
