Is Probate for Me?
Updated: Apr 22
In my last post, I talked about some basics of probate--such as what it is, how long it takes, and how much it can cost. But today, we’ll take it one step further to cover what property goes through probate and how you can decide if it’s a good fit for you and your family.
A quick review:
The probate court handles probate cases, such as handling the estate of someone that dies with or without a will.
Though there are exceptions for super small estates (less than $40,000 in Missouri), most probate cases will take six to eighteen months.
The minimum fees are calculated as a percentage of the total estate, and this number doesn't include court costs and other third party fees.
Got it? Great! You've got the basics. Let's dig a little deeper.
What actually passes through probate?
Surprisingly, only some of your property passes through probate after you die. It’s a lot easier to explain this by listing what doesn’t go through probate:
Any policies that get paid directly to a beneficiary, such as a life insurance policy or a retirement plan
Any property that has another person on the title, such as a joint bank account or a property owned jointly by two spouses
Any property that has a “transfer on death” (TOD) or “payable on death” (POD) designation on the title (sometimes people will do this with a bank account or a car)
So aside from these three exceptions, ANY and ALL other property that is left has to pass through the probate process in order to legally become the property of your beneficiaries.
What else does the probate process entail?
First, it’s important to note that the probate process is entirely public. How much property you owned, what property you owned, who your beneficiaries are, how much you gave each of them, etc. All of it. Public. Your crazy ex? Your nosy neighbor? The sister you're disinheriting? They can all see ev-er-y-thing . . .
Second, as I mentioned briefly last time, creditors have six months to file a claim against the estate for any money they are owed. So any debts that you have when you die? Those creditors can (and often will) file a claim against the estate to collect the debt. This will reduce the amount of assets remaining for your beneficiaries.
While it’s true that there are many drawbacks to probate, there can be situations where it may make sense. For example, if there are complex creditor issues, probate may be a good way to sort through all that mess.
Are there ways to avoid probate, or at least simplify it?
Yes, and yes.
Having an estate plan will certainly simplify the process. Without a valid will, your property will be distributed according to Missouri law--the law specifies both who and how much. This process requires significant court supervision, which obviously means more time and more expense as well.
With a valid will, though, the distribution of property occurs according to your wishes. While it’s true that a will must be probated, a carefully drafted will by an estate planning attorney can significantly reduce time, expenses, and complications in the probate process.
For many folks, there may be an even better option: a revocable living trust.
Although less well-known than your traditional “last will and testament,” a revocable living trust allows you to determine who gets your property, how much, when they get it, and any other terms you determine. There is no court supervision, no public filings, no drawn out proceedings or expenses. A trustee (selected by you) handles the distribution of your assets using the terms you’ve included in the trust.
You may find yourself asking, “What’s right for me?”
Let’s figure that out together.
Every family is going to have different assets, circumstances, goals, and priorities. I’m happy to sit down with you to review your situation in detail and learn what’s most important to you. Then, I can provide you with a tailored recommendation and help you decide on your next steps based on what you know is best for your family.
No matter what you decide, Emerald Law is here to help.
Until next time!