For
additional information, please contact our office at (314)725-1880.
Probate
"Probate
is a court procedure by which a Will is proved to be valid or invalid."
- Black's Law Dictionary
The Probate
Court is the branch of the Circuit Court that deals with the assets
of the Deceased as well as those persons suffering from disabilities
which render them incompetent to handle their own affairs.
 In
its most common usage, Probate is the procedure by which the assets
of deceased persons are transferred to the heirs and legatees of
the deceased. A will is typically presented to the Court with an
application for probate of the will and letters testamentary. Upon
satisfactory proof of the Will, the court will issue Letters Testamentary
to the Personal Representative, allowing the personal representative
to collect the assets of the deceased person, pay the claims against
the deceased person, and distribute the net estate to the persons
named as beneficiaries in the Will.
If the deceased
person left no will, the procedure is similar, with the exception
that the beneficiaries are determined by law, rather than by the
instructions contained in a Will. This is known as an intestate
estate. An intestate estate is typically more difficult, and costly,
to administer than one where there is a Will.
A probate proceeding
should not be handled by an amateur. It is always advisable to retain
the services of an attorney  experienced
in probate proceedings. Attorney's fees are generally paid from
the estate with no money, other than court and administrative costs,
up front. For additional information, please contact our office
at (314)725-1880.
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Wills, Trusts and Estate Planning
A comprehensive
estate plan can ease the burden on your family and loved ones in
the event of your death. It can also provide for your care and maintenance
in the event that you become disabled and unable to handle your
own affairs.
Amazingly, although
death and/or disabling illness are inevitable, most Americans have
no estate plan whatsoever! The following material provides a brief
overview of the basic estate planning documents: Wills, Durable
Powers of Attorney and The Revocable Living Trust. For more information
regarding these services, please contact our office at (314)725-1880.
A basic estate plan should include the
following components:
- a
Will
- a
Durable Power of Attorney
- a
Durable Power of Attorney for Health Care
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Wills
If you die without
a Will or other estate planning device, the State will determine
who receives your property. Generally, your next of kin, (usually
your children and spouse), will receive all your property. Without
a Will or estate planning device, you,  obviously,
have no way to designate the proportions, to appoint a guardian
for your children, or to provide for any persons or charities beyond
your heirs as determined by state law.
A Will should
provide directions for payment of your burial expenses and remaining
bills, designate who will receive your property, appoint a guardian
for your minor children and a trustee to administer their inheritance
until they are adults, and appoint personal representative (sometimes
known as the executor) who may be permitted to serve without bond.
In Missouri your will may provide for Independent Administration,
allowing your personal representative to pay bills and make distributions
without obtaining a court order to authorize each transaction. The
Will generally provides a road map for the orderly distribution
of your property according to your instructions. For more information
about wills and estate planning, contact our office today at (314)725-1880.
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Durable
Power of Attorney
A Durable Power
of Attorney benefits you while you are still alive by allowing you
to designate a person known as the "Attorney-in-Fact"
who is given the authority to administer your property and handle
all your financial affairs in the event of your disability. The
person selected as your Attorney in Fact should be a trusted individual.
A Durable Power of Attorney is typically limited in use to those
periods of time in which you are incapable of handling your own
affairs as determined by one or more competent physicians. In the
event that you regain your faculties, the powers of the Attorney
in Fact are relinquished, since you are now again competent and
able to handle your own affairs.
WARNING: Many people fail to execute a Durable Power of Attorney
and later become incapacitated due to a stroke, automobile accident
or serious illness. Without the Durable Power of Attorney your spouse
or relative will need to file for a Conservatorship over your assets
the in the Probate Court. THIS CAN COST
THOUSANDS OF DOLLARS IN ATTORNEY'S FEES AND COURT COSTS EACH YEAR!!
Whoever is appointed
as your Conservator (often your spouse) will be required to purchase
a Bond at a substantial cost for each year that you remain alive.
Your conservator will be required to obtain a Court order to authorize
any expenditures made on your behalf and to provide a complete accounting
(to the penny!) for each and every expenditure and all receipts
of income on your behalf. If discrepancies or mistakes occur in
the accounting, your Conservator may be removed by court order and
subjected to civil and/or criminal penalties!! These problems can
be avoided by executing a Durable Power of Attorney while you are
capable and in control of your faculties.
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 Durable
Power of Attorney for Health Care
In a manner
similar to your Durable Power of Attorney, the Durable Power of
Attorney for Health Care allows you to appoint a person as your
"Attorney-In-Fact" to make decisions regarding your health
and medical care in the event that you are unable to do so as the
result of incapacity, coma, of other debilitating condition which
renders you unable to make your own decisions.
Much attention
has be given in recent years to the issue of persons living in a
"persistent vegetative state" and whether or not certain
life sustaining procedures should be removed. The Durable Power
of Attorney allows you to set forth which life sustaining procedures
you desire to be administered (or withdrawn) in the event that you
would be determined to be in a "persistent vegetative state."
Hospitals and health care professionals are required to follow the
directives set forth in your Durable Power of Attorney for Healthcare.
Again, your written instructions reduce the burden on your loved
ones in making these determinations during a time of crisis.
AVOID PROBATE WITH A LIVING TRUST (THE
REVOCABLE INTER-VIVOS TRUST)
Over the years,
many clients have come to my office with the expressed desire to
"AVOID PROBATE." Although a Will is part of any good estate
plan, it is explicitly designed to be probated. In other words,
a Will is generally of no effect or value unless
the estate is administered through the Probate Court. This means
that court costs and substantial attorney's fees will be paid from
the assets of the estate before your heirs receive their distribution.
In addition, your heirs will typically have to wait a year (or more)
before they receive their distribution.
 One
of the most effective ways to avoid probate is the establishment
of a Revocable Living Trust.
A Revocable
Living Trust is an agreement that provides for the management of
your property during your lifetime and for distribution of your
property upon death, without the necessity of court action. In simple
terms, when you create a living trust you set up a legal entity,
separate from yourself, (but controlled by you), that will hold
and manage all property transferred into the trust.
In the typical
Living Trust, the person who creates the trust and provides for
the funding is known as the Grantor or Settlor. The person who manages
the trust property, according to the terms of the trust, is known
as the Trustee. The person who will receive the income and assets
of the Trust is known as the Beneficiary or Grantee.
Typically, the
Grantor (the original owner of the property to be administered)
established the Trust for his or her own benefit during his or her
lifetime. The Grantor will also be the Trustee and manage the assets
until such time as he or she becomes disabled or dies.
The Trust should
provide for a person to be the Successor Trustee and manage the
trust property in the event that the Grantor dies or becomes incapable
of managing his or her own affairs Most living trusts provide that
the Successor Trustee will manage the property and spend or distribute
the income and property of the Trust for the benefit of the Grantor
during his or lifetime, and distribute the property to the designated
Beneficiaries upon the death of the Grantor.
To
avoid probate and protect your estate for your loved ones, please
contact our office at (314)725-1880.
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DISCLAIMER:
THE PRECEDING INFORMATION WAS OF A GENERAL NATURE AND NOT MEANT
TO CONSTITUTE LEGAL ADVICE OR TO BE USED IN, OR APPLIED TO, ANY
INDIVIDUAL SITUATION. THIS GENERAL INFORMATION IS APPLICABLE TO
THE STATE OF MISSOURI AND MAY NOT BE VALID UNDER THE LAWS OF OTHER
STATES. IF THE READER HAS SPECIFIC LEGAL QUESTIONS, HE OR SHE SHOULD
CONTACT AN ATTORNEY.
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