Peggy S. Hedrick, Attorney at Law

Probate
Questions related to planning for death or disability, and caring for those who rely on your presence

Probate


 

A family member died last night! Do we need to go to our lawyer TODAY???


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There is usually no hurry to go see a lawyer immediately when a family member dies.

BUT DO see a lawyer before you:

1)  pay bills, sign your own name for the person's debts, or cancel direct deposit checks; or
2)  distribute (give away) the property belonging to the person who died.

All of those things really can wait until the family adjusts to the loss. But if you are convinced something cannot wait -- DO talk to a lawyer!

Information and ideas related to options you may find on this page:

Who inherits if you die without a Will? Table of Consanguinity (close blood relationships)
 
The USUAL, and ordinary ways to make your own choices about what happens if you die or become incompetent: Wills, Durable Powers, Living Wills
 
Giving other people power to act for you: Questions regarding Durable Powers of Attorney (needed while you are alive, but ill, or disabled -- they no longer work after you die).
 
More complicated estate planning tools: Trusts, Revocable and not...
 
Less complicated estate planning tools: Beneficiary Deeds, transfers on death, life estates, joint ownership, gifts
 
What to watch out for -- Red Flags!
 
A question everybody asks: Will my plan avoid probate?
 
How much does probate cost?
 

horizontal rule

table of consanguinity
If, for instance, you died and your parents were still living, and you had one child, your parents and your child might share your inheritance (they both are numbered "1" and therefore share equally).   4 Great great grandparents If you die without a will in Missouri, depending on whether your parents and children survive you, your spouse may have a right to everything, or the first $20,000, and a portion of what remains. The

"table of consanguinity"
(blood relationships)

to your left, shows who will share your property if you die without a will in Missouri.

The NUMBERS show the ORDER in which relatives inherit from you. The relatives with the same number share equally in your estate. If, for instance, all of those relatives numbered "1"and "2" have died before you, then those numbered "3" inherit from you.

3 Great grandparents 5 Great grand uncles and aunts
If your parents and children had already died, your grandparents, brothers and sisters, and grandchildren would share equally (all of those with #2 share) 2 Grandparents 4 Great uncles and aunts 6 First Cousins twice removed
PERSON WHO DIES
("decedent")
1 Parents

3 Uncles and Aunts

5 First Cousins once removed 7 Second Cousins once removed
2 Brothers and sisters 4 First Cousins 6 Second Cousins 8 Third Cousins
1 Children 3 Nephews and nieces 5 First Cousins once removed 7 Second Cousins once removed 9 Third Cousins once removed
2 Grandchildren 4 Grand nephews and nieces 6 First Cousins twice removed 8 Second Cousins twice removed 10 Third Cousins twice removed
3 Great grandchildren 5 Great grand nephews and nieces 7 First Cousins thrice removed 9 Second Cousins thrice removed 11 Third Cousins thrice removed

Wills, Durable Powers of Attorney, and Living Wills These are the ordinary, or usual, estate plans. They can be and should be used in combination with other options, below, after considering the "red flags."

Trusts are advertised as the solution to estate planning. They can be either revocable, or non-revocable, depending on the purposes of setting up the trust. They are supposed to "save money" and "make things easy," but those statements are misleading. They are one tool that may work in some situations.

Consider trusts if:

1) you have a lot of property, and your heirs need the benefit of tax avoidance;

2) you need to plan for your own long term disability,

3) you have family members or other heirs who will fight about their inheritances; and/or

4) you need to provide for the education and/or medical care of your loved ones.

Trusts are especially good if you do not have close family members who cannot or will not handle things if you become unable to care for yourself.

Problem: Administration of a trust can be more expensive than probate, because it takes a lawyer to understand how they work (and don't work).

Beneficiary deeds and transfers on death: one of the most useful tools for estate planning, because the beneficiary does not have any ownership rights during your life. Beneficiary deeds are not permitted in all states, but they are used often in Missouri.

Problem: can lead to unequal distribution, if you divide up property during your lifetime in a manner you consider fair, and something is sold or given away before you die -- leaving one person with an unequal share -- or nothing!

Gift to loved one now, preserving Life Estate for yourself (for example, you keep the right to live in a house as long as you live, but on your death, it goes to your child). The difference from a beneficiary deed is that your child may own an "expectancy" NOW -- and with a beneficiary deed they do not own anything until you die. Can work very well, in some circumstances.

Joint ownership of property with your loved one. Can work well, if there are no problems within the family.

Problem: your property may be subject to division by a divorce or bankruptcy court, if your child or other loved one gets into financial difficulty. Also, you cannot sell or borrow on your property without your joint owner's cooperation. The title cannot be changed without the consent of the person you give a joint ownership to.

Red Flags!Red Flags!

If any of the following apply to you, you should inform your lawyer!!!
Adult children who will fight with each other
 
Divorces pending, or possible, in your immediate family
 
Handicapped or disabled persons for whom you are financially responsible
 
Your own illness and/or pending long-term disability
 
No immediate family or intimate friends you trust
 
Disability, or tax problems of those who will inherit from you
 

A Few of the Questions most often asked about Wills, probate, and estate planning matters:

The most important thing to me is to avoid probate. Will my plan avoid probate?

Your plan may avoid probate, if your assets and affairs stay are the same when you die as they are at the time you worked out your estate plan -- and if your lawyer knows all there is to know about your assets and affairs! There is NO plan that will absolutely guarantee that your estate will not require probate. If you die owing bills to people, there are ways to even bring property you gave away, and trust property into the probate estate. Probate is not all bad, and does not have to be expensive or a problem. There are times that probate provides protections to your family that cannot be provided in any other way.

Do I HAVE to hire a lawyer to do my will -- or would it be okay to just buy a form, and do it myself?

You can always buy a form, and do your own will. But most lawyers -- and people who have spent time thinking about the problems, would tell you that paying a lawyer to help you may save you and your loved ones many headaches, and a lot of time and money. As you can see from the information on these pages, there are many circumstances in individual lives that make a difference -- and the general forms do not allow for the specific circumstances in the lives of different families. And if you do not have much money -- you may need careful planning even more than those people who have a lot of money -- because the expense of solving the problems created by a failure to plan, will use up the small resources you wanted to go to your loved ones.

I have a revocable living trust. I don't NEED a will, do I?

A will is part of the plan when you have a revocable living trust. A will covers property which may not have been properly transferred into your trust, and may be a big help if your revocable living trusts is challenged in Court.

Do my heirs HAVE to hire the same lawyer who writes my will as my lawyer in the probate of my estate?

No. The lawyer who probates your estate should be someone with whom your Personal Representative feels comfortable.

How do I know that you will do a good job for me?

A lawyer cannot know what you mean by "good job." If you mean "certain results" -- lawyers cannot guarantee certain results. We are licensed to practice law, and if we do not work "zealously" for our clients, we can lose our licenses. Basically that means that we must work with enthusiasm, and do our best.

If you are not a lawyer yourself, the only way you can judge the quality of a lawyer's work is through talking to other lawyers, and your own evaluation of the lawyer's personal qualities. If you are concerned about the quality of your lawyer's work, you should ask specific questions, and, if you don't feel comfortable with the answers, look for someone else.

Durable Powers of AttorneyDurable Powers of Attorney

Durable Powers of Attorney work only while you are ALIVE, and according to the terms in the document. Wills go into effect only after you die, and after someone files the necessary paperwork with the probate court to have the Will "proven" -- or counted as a valid Will under the law of the state in which you die.

QUESTIONS REGARDING DURABLE POWERS OF ATTORNEY

How does one know when a durable power of attorney might be necessary?

Laws related to powers of attorney are different from one state to another, and may change from time to time. The following comments relate to Missouri law. A Durable Power of Attorney should be given by one person (a "grantor") to a trusted person (the "attorney in fact") while the grantor remains competent, according to a precise legal definition. The Durable Power of Attorney does not have to become effective immediately -- but can become effective under terms and conditions that the Grantor specifies.

If, for instance, a person has already been diagnosed with Alzheimer's disease, or another disease that affects cognitive functions, family members might be forced to open a guardian/Conservatorship through the court system, just to do simple things, like file a tax return, or make health care decisions. With an appropriate Durable Power of Attorney, the "attorney in fact" (not the same thing as an "attorney at law") can handle almost any legal matter requiring the Grantor's signature, without Court involvement.

Guardian/Conservatorships are expensive to set up and maintain, and also cumbersome, in that one has to obtain Court approval for many actions that one might think are personal family matters, and routine.

In MISSOURI, if there is no Durable Power of Attorney, with specific powers to sell, mortgage, etc., jointly owned property, a Guardian/Conservatorship estate would have to be opened in probate Court, and EVERY relative of the disabled person, maybe down to at least nephews and nieces, would have a chance to actually BE the person in charge, and to have a voice in the judge's decision as how the property is handled. And the presumption would be that the other person who jointly owns the property would try to transfer the interest of the disabled person to himself.

What authority does a Power of Attorney give to the "attorney in fact"?

The "authority" is listed in the document, itself -- and can be as broad or as limited as the Grantor wants. Under Missouri law, a "Grantor" can give a "general" durable power, giving another person the power to do almost anything ( -- with ten specific limitations, set out in the statute) that the Grantor could do, if present and competent.

What are the RESPONSIBILITIES, and LEGAL LIABILITIES of a person who has been named "attorney in fact" by a Grantor?

Just being NAMED as "attorney in fact" -- does not give a person any responsibilities or legal liabilities. He or she can simply refuse to act. But if action becomes necessary to protect a Grantor's welfare, and the named "attorney in fact" refuses to act, then a Guardian/Conservatorship will have to be set up through the Court system.

Is an "attorney in fact" obligated to use the services of the same attorney initially chosen by the Grantor (the one who prepared the legal documents?)

No. Not unless there is something specific in the document, itself, that puts that limitation on the "attorney in fact."

What kind of legal problems can a person have, if he or she agrees to be "attorney in fact" for someone else?

One does not have legal problems by just being named as "attorney in fact" for a person. But USING it for your own purposes -- or acting outside the powers actually given to you, make you subject to lawsuits by the Grantor, or someone on his or her behalf if the Grantor dies, or is disabled (for instance, other family members, heirs, or creditors, of a Grantor).

Also, if a person signs his or her OWN name on a legal document or contract, without the name of the Grantor, and the letters DPA (for "durable power of attorney") -- that person might be personally liable under that document, rather than obligating the Grantor's assets for compliance with it. For instance, a child, acting under a Durable Power of Attorney for a parent, signed a contract for security services on the parent's home, without the parent's name and the letters DPA. When the parent later died, the child had to complete payment for the security services from his own money. If he had signed the parent's name, with the letters DPA, the contract would be ended when the parent died.

Everyone says that probate is SO expensive! How much will probate cost? Costs depend on your circumstances at the time of death, who challenges your plan, and unforeseen problems that may come up. Probate does not have to be expensive. With careful planning, probate can be a lot less expensive than setting up and maintaining a revocable living trust.

Probate can cost as little as $250.00 -- or thousands of dollars. The key to reducing the cost of probate is keeping the property which goes in to probate at a minimum by using some of the above plans to transfer your property to others during your life, or automatically upon your death.

Statutory Compensation for Attorneys and Personal Representatives (the amount is the same)

The statute is found at
473.153 RSMo

The assets of the estate:
Value of the personal property $_____
Proceeds of real estate sold $_______
Value of total assets in estate $______ (add above amounts)
The computation is based on the value of the total assets in the estate
Compute the fees:

5% of the first $5000= $  250
4% of the next $20,000= $  850
3% of the next $75,000= $2250
2 3/4 % of the next $300,000= $8250
2 % of all over 1 million dollars= $ _______
Total of all = the fees for EACH (PersRep & Attny)    $ _______

Check other pages for questions on other areas of law

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Peggy S. Hedrick, Attorney at Law
Post Office Box 11027
Springfield Missouri USA 65808-1027
Peggy S. Hedrick, Attorney at Law
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