Steve Scott

Attorney at Law

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Vanessa Reynolds

Legal Assistant

 Probate Process

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In Missouri, the Probate Division of the Circuit Court supervises administration of the estates of deceased persons ("decedents"). It also supervises guardianships and conservatorships, which are covered on the "Guardian/Conservator" page. This page focuses on the estates of deceased persons.

The main purposes of probate are to ensure that:

The property of a decedent is distributed to the rightful heirs at law and/or beneficiaries under a will.
The decedent’s debts are paid.
Disputes arising out of the process are resolved.

In general, probate proceedings must be filed within one year after the decedent’s death.

Topics covered on this page are:

Full administration
Other probate procedures
Petition to determine heirship
Statutory fees
Other probate expenses

Full administration

There are various mechanisms for avoiding the probate of a decedent’s estate (in particular, see the "Trusts" and "Other Techniques" pages). However, if those mechanisms have not been used, or for some reason are not effective, and a decedent leaves property and/or money worth more than $40,000, the decedent’s estate will be subject to what is known as "full administration" in the Probate Division. This process typically requires a minimum of 13 months from the date of death. In general, a full administration involves the following steps:

Filing initial paperwork in the Probate Division
Appointment of a personal representative (formerly known as an "executor"), whose responsibility is to administer the estate under court supervision
Publication of a legal notice of the opening of the estate and the appointment of the personal representative (the notice gives creditors a deadline to file claims against the estate)
Collection of the decedent’s assets
Filing an inventory of the decedent’s assets with the court
Dealing with claims against the estate – debts owed by the decedent (if a claim is disputed, the Probate Division will conduct a hearing to determine if the debt is owed, and, if so, what amount should be paid)
Filing a final report with the Probate Division showing assets, claims and other expenses paid, and proposed distribution of the remainder to heirs and/or designated beneficiaries
Distributing the remainder of the estate to the heirs and/or designated beneficiaries, obtaining receipts from them, and filing the receipts with the court

A full administration can be simpler and less costly if the personal representative is authorized to act as an "independent personal representative." This is permitted if authorized by the decedent's will or if all beneficiaries agree. The differences are:

In a supervised administration, the Probate Division must approve many actions of the personal representative, who must also file annual accountings which are fully reviewed and audited by the Probate Division.
An independent administration is more informal and eliminates the need for most supervision by the Probate Division as well as annual accountings.

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Other probate procedures

If the value of the decedent’s property subject to probate does not exceed $40,000, a simpler, less expensive and quicker procedure which does not require the appointment of a personal representative is available. The main steps in this process are:

A beneficiary of the estate files an affidavit in the Probate Division. The affidavit must describe the decedent’s property, set out the names and addresses of the persons entitled to receive the property, and state that all unpaid debts of the decedent have been or will be paid.
If there are no complications, approximately seven months after the filing of the affidavit, the Probate Division clerk will enter a certificate on the affidavit authorizing distribution of the decedent's property to the heirs and/or beneficiaries.

Some even quicker and more summary probate proceedings are available in some small estates.

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Petition to determine heirship

If a probate proceeding has not been filed within one year after the decedent’s death, and it is later discovered that the decedent owned property to which heirs are entitled, the statutes permit filing a "petition to determine heirship."

After a hearing on the petition, the Probate Division will issue a judgment determining ownership of the decedent’s property and ordering its distribution to the appropriate person or persons.

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Statutory fees

Only attorneys are authorized by law to represent a personal representative in a decedent’s estate. The probate statutes set out a fee schedule for the personal representative and the attorney. Sometimes the personal representative is also an attorney, in which case only one statutory fee is allowed. The statutory fees are based on the value of personal property, including cash, inventoried in the estate. The fee schedule is:

On the first $5,000 in the estate – 5%
On the next $20,000 – 4%
On the next $75,000 – 3%
On the next $300,000 – 2.75%
On the next $600,000 – 2.5%
On all over $1 million – 2%

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Other probate expenses

In addition to the personal representative’s and attorney’s fees, a decedent’s estate subject to full administration will typically incur the following additional types of expenses:

Bond premiums: The personal representative may be required to provide a bond to the Probate Division to guarantee faithful performance of duties. However, bond can be waived by the will of the deceased person, and in some cases, a bond can be waived if the court and/or all beneficiaries agree. The cost of the bond, which is obtained from an insurance agent, is paid out of the estate and varies according to the value of property inventoried in the estate.
Publication costs: In general, at least two notices must be published during administration of an estate to protect the rights of all persons who may have an interest in the estate. The first notice informs potential heirs and the public that the estate has been opened and also notifies creditors to submit claims against the estate by a specified deadline. The second notice is published at the end of the process before an estate is closed and is called a "Notice of Intention to File Final Settlement" or "Notice of Intention to File Statement of Account." The cost of publishing these notices varies depending on the length of the notices and the charges made by particular newspapers.
Court costs: The Probate Division, although a part of state government, is not entirely supported by tax revenues. Therefore, every estate is required to pay a share of the expenses of running the Probate Division. These costs are generally based on the value of the estate.
Appraisal fees: If appraisals are necessary to determine the value of property in the estate, appraisers' fees must be paid by the estate.

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