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The death of a loved one is an emotional challenge. Many questions arise as to how the decedent's affairs will be handled and what the exact role of the surviving family may be. We understand the pressures that come with taking care of an estate. At Markell Estate Planning & Elder Law, we will guide you through the often tedious and complex probate process and grant you peace of mind that the matter is being handled correctly and efficiently.

Our office will be with you every step of the way: from the initial filing of the petition to appoint a personal representative, to locating estate property, distributing such property to heirs, and providing the court with final accounts. If you're in O'Fallon, Wentzville, St. Louis, or St. Peters, Missouri, please contact our office today for more information about the probate system and how we may assist your needs.

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What is Probate?

If you live in O'Fallon, Wentzville, St. Louis, or St. Peters, Missouri and you die without an estate plan, your estate will go through the probate court. From there, the court will order that your debts be paid and that your assets be distributed in a way that has been determined by the state of Missouri. You have no control over this process and cannot dictate how your money is allocated after your death.

The probate process usually takes about 12 months, but can sometimes take several years, and will cost about 6% of the gross value of your estate. This figure includes fees for the court itself, as well as attorney's fees, accountant's fees, and appraiser's fees. This is money your children and other beneficiaries will not see.

This process affords no privacy for you or your beneficiaries; records of probate proceedings are entirely public. Additionally, if you have minor children and die without electing a guardian in your will, it will be up to the court to determine what happens to your children.

Do I Need an Attorney for Probate?

Yes. Though all states have different laws, Missouri law dictates that every estate shall be represented by an attorney throughout the probate process.

I only Have a Will. Does My Estate Still Pass Through Probate?

Despite the misconception, the answer is yes. The probate process determines whether a Will is valid. Often times, a decedent's taxes must be paid and certain property distributions must be administered. In this scenario, a Will does not avoid the probate process. When the decedent of the estate (the property owner) passes away, the court will verify Will's validity and order distribution accordingly or in the event of non-valid Will, adhere to the probate code's guidelines for property administration.

How Do I Avoid Probate?

At death, a decedent's property must have a legal owner. The probate process decides owners of the decedent's property for the decedent, however, this can all be avoided with a proper estate plan. One way to avoid probate is to have a trust in place. A trust allows for someone to protect their property and create a specific plan for asset distribution after death. Other valuable methods consist of transfer-on-death or payable-on-death instruments and establishing joint ownership in property.

The goal of any good estate plan is to minimize taxes, probate costs, and other liabilities and to preserve the value of your assets for future generations.

Probate vs. Non-Probate Property

All property must have a legal owner. By definition, probate property is any property that is distributed to a decedent's heirs by the court, while non-probate property passes directly to beneficiaries without such intervention and thus avoids probate court.

Probate property consists of property that is solely owned by the decedent. Examples of such may consist of real estate titled solely in the decedent's name or as a tenant in common, bank accounts solely in the decedent's name, personal property such as vehicles, jewelry, or furniture, and life insurance policies or brokerage accounts which list the decedent or decedent's estate as beneficiary.

Non-probate property may encompass property that is held in joint tenancy or as tenants by the entirety, bank or brokerage accounts held in joint tenancy or with payable on death (POD) or transfer on death (TOD) beneficiaries, property held in a trust, life insurance or brokerage accounts that list someone other than the decedent as the beneficiary, and retirement accounts.

Cost of Probate

Oftentimes, people will avoid creating an estate plan because they are concerned that doing so will be too costly. They think that estate planning is only for very high net worth individuals and that they do not have enough assets to be concerned with. However, statistics show a different result. Without an estate plan, probate will cost the estate more money. The chart below exemplifies the costs of probate versus an estate plan for an estate worth $500,000. While an estate plan would have cost roughly $4,500, probate costs (court fees, attorneys, and taxes) total approximately $25,000. You need not pay an attorney up front, as often fees are filed for in court and paid directly from the estate's assets.