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THE ELDER CARE LAW PRACTICE, LLC
MELISSA Q. LEAVY, ATTORNEY
Contact: (314) 932-5573
Probate is necessary for all property that does not pass by other non-probate transfers after a person’s death. The two most common means to eliminate the need for probate of property include adding beneficiary designations to property and establishing a trust. But, if you are reading this page, you may already be in the circumstance of handling a loved one’s estate who did not do any planning, or where your loved one did some planning but perhaps missed a step or two along the way. And, as a result, you now have “probate assets.”
In cases where there are probate assets, a “personal representative” or “executor” must file a petition with the Probate Court in the county where the person who has probate property died. The difficulty of the case depends on whether or not the person who died had a Last Will & Testament, the type of asset, the number of assets, the value of the assets, and sometimes can be complicated by the heirs or beneficiaries of the estate, for example, where a named person under a Last Will & Testament is difficult to locate.
The personal representative has responsibilities to collect the assets, identify creditors, report the assets and creditors to the Probate Court, pay creditors and taxes, and make distributions to the beneficiaries or heirs.
The Missouri Bar has published the Probate Law Resource Guide that explains many of these situations in detail.
FOR MORE INFORMATION ON PROBATE LAW, CALL OUR OFFICE TO SET UP AN APPOINTMENT: (314) 932-5573
Winding Up and Administering a Trust
As mentioned above, assets that are owned by a trust do not need to be administered through the Probate Court. In fact, this is one of the chief reasons to create and fund a trust during your lifetime. But, after a person who created and funded a trust dies, the trust must still be reviewed to determine the next steps to take and to ensure that the trust is administered correctly according to the Missouri Uniform Trust law. In many cases, this is a simple process where, generally, the trustee notifies the beneficiaries of their rights under the trust, inventories all of the assets, and divides and distributes the assets according to the trust terms. In some cases, there may be a trust or subtrust within the main trust that must be administered for a longer period of time, such as a special needs trust for the benefit of a disabled person, or a general needs trust, where a beneficiary may have creditor issues.
In most cases, this process is much easier to administer and takes less time to wrap up than an estate administered through the Probate Court. But, if you are the trustee of a trust, you may need legal assistance to ensure proper administration of a trust. As the fiduciary of the trust, you have a duty to the beneficiaries of the trust to act in a manner consistent with the law and the terms of the trust.
FOR MORE INFORMATION ON PROBATE LAW, CALL OUR OFFICE FOR AN APPOINTMENT: (314) 932-5573