Probate and Elder Law FAQ
In Missouri we presume that everyone who is over the age of 18 is able to make financial decisions for themselves, however, when someone is not able to make financial decisions for themselves, either because they have become ill, lost touch with reality, or never could make decisions for themselves, then a family member or a friend can ask the court to appoint a conservator for the impaired person. When this happens, the judge seeks the advice of Medical professionals who have examined the person and determined that they are unable to take care of their affairs. At this point the Judge will determine if the person is legally disabled and will appoint a conservator to make those decisions for the person.
Conservators will only have charge of a person’s finances and property. Guardians deal with placement, and healthcare decisions for somebody who is not able to make those decisions for themselves. It is possible for someone to serve as both guardian and conservator.
A conservator is not free to make financial decisions for the person on their own. They act in very close consultation with their attorney and the probate court that oversees them. Every year they must provide a complete accounting of how the disabled person’s money was spent, where it was spent, how it was invested, what interest was earned, and other various procedures to be certain that the conservator is doing the best job that they can to oversee the finances of the incapacitated person.
Once a person is declared incapacitated, they are known as a “protectee.” To further assure that the conservator acts in the best interest of a protectee, the court will require a conservator to post a bond in the amount of the estate that they are administering. This bond works essentially like an insurance policy for the protectee, so that if assets are missing from the estate, the bond can reimburse the estate. The task of acting as a conservator is extremely difficult and in most states including Missouri, cannot be carried out without the assistance of an attorney. During my time as a staff attorney to the St. Louis County Probate Court and the many years since I assisted many conservators in completing their duties on behalf of their protectees. If I can now offer this service to you, please be sure to call me at the numbers listed at the bottom of this page.
A guardian is a person who is appointed to make all of the non-financial decisions for somebody who has become incapacitated.
This process is often conducted at the same time as proceedings to declare the person as disabled such that a conservator is appointed. The guardian and conservator can be the same person or they may not be, depending on the specific needs of that case.
The State of Missouri has set up certain procedures for helping people who can no longer manage their affairs and finances. (These are guardianships and conservatorships.) If you are not happy with the way these procedures work, you can opt out of them by taking certain actions when you are competent. One such action is to execute a Power of Attorney. This is a document that gives somebody else the right and ability to manage your affairs and sign your name. People who are competent may have a Power of Attorney if, for example, they are traveling oversees or will be otherwise out of touch with their affairs. People who fear that they might become incompetent may also execute a Power of Attorney. In these cases, it is called a Durable Power of Attorney because the Power of Attorney is durable enough to withstand their incapacity. The Power of Attorney is a specific document that appoints an Attorney-in-Fact who will act on your behalf. The Attorney-in-Fact can be given broad powers or narrow powers, or they can be given the default powers listed in the Missouri Statutes.
It is important to consider very carefully what powers will be given to the Attorney-in-Fact and it is extremely important that the Attorney-in-Fact be somebody who can be trusted. The Attorney-in-Fact will essentially have complete control of the affairs of the person. Unlike a conservator, they will not have the supervision of the court, nor will they normally have posted a bond to compensate the principal if there is any impropriety with the finances. A Power of Attorney document can also include certain healthcare directives, either to assist medical professionals in determining when vital life-support should be withheld or applied to you. This Power of Attorney document can also grant the power to make such healthcare decisions to the Attorney-in-Fact.
There are many important aspects to drafting, executing, and maintaining a Power of Attorney document. Most attorneys in the State of Missouri can prepare such a document and you should feel free to contact me to prepare such a document. Attorneys can also help you prepare a separate healthcare directive or durable power of attorney affecting healthcare.
Because a court appointed guardian is responsible to a court, only a court can terminate the guardianship. There are several ways in which a guardianship can terminate. If the ward passes away, the guardianship is automatically terminated. If there is any impropriety by the guardian, or failure to maintain affairs properly for to provide for the care and well being of the ward, then anyone may point this out to the court by petitioning the court to remove that person as guardian. This does not end the incapacity of the ward, but rather will set the stage to appoint a new guardian after the current guardian or guardians is removed. A guardianship is also terminated if the ward recovers the ability to care for him or herself and petitions the court for restoration. A Guardian may also resign, when this happens, they must inform the court of their resignation and the court will then seek a replacement guardian. All of these avenues for terminating guardianship require the advice and counsel of a competent Missouri lawyer. You can contact me to help you with these matters.
Because a court appointed conservator is responsible to a court, only a court can terminate the conservatorship. There are several ways in which a conservatorship can terminate. If the ward passes away, the conservatorship is automatically terminated. If there is any impropriety by the conservator, or failure to maintain assets properly for to provide for the asserts of the protectee, then anyone may point this out to the court by petitioning the court to remove that person as conservator. This does not end the disability of the protectee, but rather will set the stage to appoint a new conservator after the current conservator or conservators is removed. A conservatorship is also terminated when the ward recovers the ability to care for himself or herself and petitions the court for restoration. All of these avenues for terminating a conservatorship require the advice and counsel of a competent Missouri lawyer. You can contact me to help you with these matters.
It is necessary whenever a conservatorship ends or is removed, that the conservator make a final accounting for all assets of the estate. Just as they have done up until that point, a conservator must make a final accounting through the date of their removal or resignation to document to the court how all expense to the conservator have been paid or monies invested.
A conservator may also resign, when this happens, they must inform the court of their resignation and the court will then seek a replacement conservator while they prepare an accounting.
Many people have very strong opinions about whether they wish to be kept alive by life-support equipment and/or the heroic efforts of doctors. In response to this, many people draft what is referred to as a living will or more technically referred to as a healthcare directive, that is instructions as to how you wish healthcare decisions to be made if you are unable to make then yourself.
Let me define some terms so that you can better understand the way this area of the law works.
First, a healthcare directive is your specific feelings on what medical treatments should be applied or withheld from you under certain circumstances. These can be either very brief or may be a long, detailed list of which treatments you wish to have withheld or applied to you under specific conditions.
Durable power of attorney for healthcare
Generally speaking, a power of attorney is somebody’s grant of power to allow someone else to act on his or her behalf, specifically with regard to healthcare. Durable indicates that the power of attorney document continues to be in effect even though the person who granted the power of attorney may be incapacitated and unable to make decisions for themselves. Together or separately people refer to one of both of these documents as a living will. You do not necessarily need to contact an attorney to execute a durable of power of attorney and healthcare directive. The Missouri Bar offers a form, which you may fill out yourself. It includes simple questions and answers as well as instructions. Unfortunately, because everyone has a different opinion of how they wish their healthcare to be directed, this document only works for some people. If you disagree with the directions given in it or if you disagree with the way it gives power to other people, it could be very difficult to modify on your own. In those cases, you should certainly seek the advice of an attorney. I would be more than happy to help you in such an instance.
This can be a very difficult question and the answer depends on a number of questions about both what your assets are and how you wish for them to be distributed.
Let me begin by dispelling a common misperception about wills: A validly written will does not avoid probate. Indeed, a document is not even considered valid will until it has been “probated.” Many people believe that a will is a means of avoiding probate, but it does not. A will avoids “intestacy”. Intestacy laws are the default laws passed by the legislature of the State of Missouri that determine how a person’s property is distributed if they do not have a will or a valid and complete will, when they die. These default laws are not any sort of bizarre way of passing the property to the State of Missouri onto divide the property with your distant cousins. In most cases, people who draw a will distribute their property in the exact same way that the laws of intestacy would distribute their property, which in the vast majority of cases, is to the children of the decedent. However, there are still reasons to have a will, even if you would want your property to pass to the same people as it would pass through the law of intestacy. Having a will allows the personal representative (which in the past was sometimes called the executor) to act with more independence from the court and to expend less money in administering the estate. This can often be a significant savings from the estate, after the person has died and is frequently, reason enough to make a will. Also, people frequently like to use wills to create trusts that begin upon their death, or to indicate their wishes for who should act as guardian of their children, should both parents of the child pass away.
Writing a will is a very complicated procedure. In helping people administer estates, I frequently discover writings in which the decedent expressed their wishes for how their property should be distributed. However, because they did not follow the proper formality, their property still passes according to the laws of intestacy, without being able to take advantages of any of the shortcuts available to estates driven by wills. If you are interested in drafting a will, please contact my office or the office of another attorney. More often than not, the wills that people try to draft themselves or that they draft based on forms from an office supply store or software package, are not effective and end up costing their estate more money than they save them.
A power of attorney is a document that somebody signs to grant somebody authority to act on their behalf. In most cases, this means the ability to sign their signature on their behalf. A person must be competent in order to grant a power of attorney. The person who acts under a power of attorney document is called an “attorney-in-fact”. Power of Attorney documents can be very complicated and require different things depending upon their use. For example, a power of attorney document allowing somebody to transfer real estate requires substantially more than a simple power of attorney document allowing somebody to get a tax return on your behalf. As in the case of a will, I find that people frequently make errors in drafting a power of attorney document or use the wrong documents for the wrong situations. I always advise people to see an attorney to help draft a power of attorney document.
I think the most important thing that people do not often realize about a power of attorney document, is that it is a very important grant of power and that it can be very easily abused by the attorney-in-fact. You should always be very sure that the person, who is getting the power to act as attorney-in-fact, under the power of attorney document, is very trustworthy. I quite frequently see people who have regretted their decision or whose other relatives regret the decision to grant a power of attorney later, when it is too late to change such document. Generally speaking, a power of attorney document can be withdrawn or cancelled at any time when the person is still competent and a new one can be issued. Indeed, a new one can be issued without canceling another, so that a person has more than one power of attorney. Once a person becomes incapacitated, they may no longer legally sign a power of attorney document. In order to have somebody else act on their behalf, there must be court proceedings to have them declared incapacitated and have a conservator appointed for them.
The information contained on this site does not constitute legal advice and you should not believe that you have entered into an attorney- client relationship with an attorney because you have viewed this page. This information applies only to the laws of the State of Missouri in the United States of America.
Probate As It Affects People Who Have Died (Decedent’s FAQ)
The information contained on this site does not constitute legal advice and you should not believe that you have entered into an attorney- client relationship with an attorney because you have viewed this page. This information applies only to the laws of the State of Missouri and Illinois in the United States of America.
A will or “Last Will and Testament” is the way that a person expresses their wishes (or their “will”) as to how their financial affairs should be concluded after their death. Most importantly, it indicates who the testator (the person whose will it is) wishes to receive their assets. This is not all that a will does; it also can set the parameters for how administration proceeds, including who should be the personal representative (once known as “executor”) and how carefully the court should oversee their actions. In particular, a will can make probate go more quickly and easily so that there are much lower attorney fees during the administration of the estate. Parents of young children might also use a will to designate whom they wish to be guardian of their minor children.
The mechanics of drafting a will are still largely governed by the “Statute of Wills” first passed by the English Parliament in 1540. More often than not, the wills that people try to draft themselves or that they draft based on forms in an office supply store or software package, are not effective and end up costing their estate more money than they save them. If you are interested in drafting a will, please contact my office or the office of another attorney.
In the State of Missouri, if you die without a will your assets will be distributed pursuant to the Missouri laws of intestacy. These laws set up what the state legislature believes is the default ways that most people want their property distributed, usually, first to their spouse and children. If you are unhappy with the way these statutes work, you may write a will to override them and distribute your money in, essentially, any way you wish. The generation of a will does not avoid probate; however, it will direct how probate operates. In addition to changing how the money is spent, it can also make probate operate more easily and with fewer attorney fees. If you are interested in drafting a will, please contact my office or the office of another attorney. More often than not, the wills that people try to draft themselves or that they draft based on forms in an office supply store or software package, are not effective and end up costing their estate more money than they save them. A will can also be useful if you have children under the age of eighteen and wish to designate a guardian for the children in the event of a tragedy to both parents.
Normally, an attorney will give you very a very specific list of things that you should bring when you visit their office to write a will. This normally includes a list of all of your assets, deeds to any property you own or have owned recently, any documents that may affect your marital status, such as recent divorces, a copy of your birth certificate, names, addresses, birth dates, and social security numbers for all people you wish to leave property to, as well as such information about yourself, detailed information about your assets and where they are located and what form they are in. Once this information is reviewed, an attorney can draw up a very personalized will. The form wills that you can buy in an office supply store or generate through a software package do not nearly go through all of this information in the way that an experienced, trained attorney can. I would always recommend that you consult with the attorney with whom you are working to find out exactly what materials they want you to bring when you meet with them.
Probate is the process by which a decedent’s assets and liabilities are finally resolved so that their assets can be distributed to those that are entitled to them. In this process, a “personal representative” is appointed to act on behalf of the decedent. (In the past personal representatives were sometimes known as “executors”) This personal representative then collects all of the assets of the decedent, attempts to account for all of the liabilities owed by the decedent, pays off those liabilities, and distributes the remaining property either pursuant to Missouri Statutes or pursuant to a will left by the decedent. In Missouri, this process can take a minimum of six months, unless a shortcut proceeding is used or with no open-ended timeframe if there are complexities to the estate, like an on-going business.
A trust is one of the most loosely defined characteristics in our entire legal system. Because this is such a flexible legal area there can be as many types of trusts as there have been attorneys to draft them since the early days of our legal system in England hundreds of years ago. Essentially, a trust is when one person, the “trustee,” is given the authority to manage an asset or assets on behalf of someone else that benefits from this money, the “beneficiary”. Normally, the “settler” or “grantor” of the trust, in other words the person who creates the trust, grants this power to the trustee. In many cases, one or more of these rolls can be filled by multiple people, such that the grantor of the trust may also act as the initial trustee and even be the initial beneficiary. There might be multiple beneficiaries to the trust so that there are alternate or residual beneficiaries. A trust can useful in a great variety of circumstances to accomplish what you could otherwise not be able to accomplish. These circumstances vary greatly from such diverse areas as the investment of funds in real estate to efforts to legally avoid taxation from the government to management of assets on behalf of a minor or someone else not able to manage their money properly. Most often when people talk about trusts in the context of probate, they are talking about an inter vivos trust. Inter vivos trusts are created to avoid probate completely by using the trust to pass assets to the people they wish to have these assets passed to without any probate proceedings at all. If you are interested in drafting this sort of trust or any sort of trust, please contact my office.
Joint tenancy is a means by which many people attempt to avoid probate. It is a relatively simple means because it is easy to designate various bank accounts as “joint tenants with right of survivorship” or “JTWROS” such that the account is then legally owned by two people and automatically becomes the property of which ever one of those people survives the other. Joint tenancy has many uses besides the avoidance of probate in terms of control of an account by spouses or other people who are jointly entitled to the same property. Joint tenancy is frequently used as a means to avoid probate but there are many potential disadvantages to this. For example, joint owners are immediately permitted full access to any asset which they own. This is regardless of whether their joint tenant is alive or not, such that on a joint bank account, normally either joint tenant can completely exhaust the bank account at any time without consulting the other joint tenant. Moreover, the creditors of either joint tenant could potentially have rights to that bank account, regardless of who deposited the money in that account initially. A surviving joint tenant is viewed as a sole and only owner of that property. Any understandings about how they might distribute that property do not have the enforceability that a will does. If joint tenancy is used to distribute extensive property, pursuant to informal agreements upon the death of a joint owner, it may result in gift tax consequences, which would not otherwise have occurred.
There is no possible way that this question can be answered for any given person without thorough consultation with an attorney. This said, I can think of very few circumstances where people would not be better off with a will than without one. Even people, who have done extensive trust planning, always include a will as a back up to such trust plans. Younger people, who are relatively low risk of passing away, frequently wish to have a will to provide their wishes regarding guardianship of their children. Young people who do not have children, but who are over eighteen, might wish to have a will because the intestacy statutes are less likely to distribute their property in the ways that they agree with. In short, I can think of very, very few circumstances in which I would not recommend to somebody that they draft a will.
Contesting a will is one of the most complex legal proceedings around. It is extremely unusual, even when compared to other sorts of lawsuits. Whenever you wish to contest the ways in which a will distributes property, I would always recommend that you consult an attorney first before taking any other action. Moreover, I would recommend that you make this consultation as quickly as possible as there are very short deadlines for contesting a will after it has been filed with the probate court.
A will can be invalidated for a number of reasons, but very rarely is. The most frequent reason why it is invalidated is that it is a product of undue influence. That is, somebody with access to the decedent caused them to distribute their property to them by using undue influence upon them. A will might also be invalidated because the testator was not competent to make the will at the time it was drafted. There are also a number of technical reasons why a will may be invalidated. The most frequent and common of these reasons is if the testator has invalidated it, presumably by the drafting of a subsequent will. Wills might also be invalidated because they have not been properly executed in terms of the number of witnesses or the formalities with which the testator signed it. It is for these reasons that I always recommend that an attorney be consulted in drafting and executing a will. I should also note here, that a will contest is not necessarily the only way to challenge the distribution of an estate. A will contest is only a means for actually challenging the validity of a will. There are a number of factors that can affect the distribution of an estate that may be challenged in court in simple proceedings that may have a better chance of affecting the distribution of the outcome of an estate.
How do I stop someone else from taking money or property that should go to me?
The first step you should always make if you believe an estate is being distributed improperly, is to contact an attorney.
This question depends upon how the asset is originally titled. For example, a jointly titled asset can frequently be changed to the name of a surviving owner simply by presenting a death certificate to the title company, bank, or Department of Revenue in the case of an automobile. Assets can be changed with similar ease, if they are denoted transfer on death (“TOD”) or pay on death (“POD”). If an asset is not titled jointly but is titled in some other way, for example, the name of the decedent alone, it can be more complex to change the title on that asset. Indeed, if an asset is owned strictly by someone who has passed away, it is likely that that asset cannot be transferred without the consultation of an attorney, who will, in turn, file matters in a probate court. This does not necessarily mean that these matter will be extremely costly, complex, or time consuming but probably require the consultation of an attorney.
In Missouri courts, there is a very simple form that can be filled out to assert a claim against an estate of someone who has died. It must be filed in the probate court where the estate is being probated. This is normally the court of the county in which they were living at the time of their death. There is an extremely short time limitation, in most cases, for filing claims against a decedent. The mere filing of this claim does not assure that it will be paid. This depends upon the type of procedure being used to distribute this probate estate. Often, additional vigilance is required to assure that this claim is not only filed, but also actually paid by the personal representative. Most attorneys are equipped to file the claim in the best possible way to assure that it is not only properly filed in the correct time periods, but also paid by the personal representative, if such payment is appropriate. I would recommend that if you have a claim against someone who has died, you consult me or another Missouri attorney to assure that your claim is properly filed in terms of both its form and its timeliness. If you attempt to make a claim against the assets of a decedent whose estate is not currently being probated, this can become much more complicated because you may be forced to open the probate proceedings necessary to distribute their assets. Once again, this is probably best accomplished with the advice of a competent Missouri attorney.
This is normally what is called a claim. Many people use the word claim against a probate estate to mean a number of other concepts like money they believe that they should inherit from the estate, however, a claim is actually money owed by a decedent to someone else for services they performed either before or after their death. If someone owes you money, the time period which they are given to pay it back is the statute of limitations, by which time you must file your claim in order for it to be legally enforceable. The statute of limitations is greatly shortened by a person’s death. For this reason it is important if anyone owes you money and passes away that you take immediate action to assure that the money that they owe you is paid or your claim is filed against their estate.
The information contained on this site does not constitute legal advice and you should not believe that you have entered into an attorney- client relationship with an attorney because you have viewed this page. This information applies only to the laws of the State of Missouri in the United States of America.
Probate As It Affects Minors (Minor Law FAQ)
The information contained on this site does not constitute legal advice and you should not believe that you have entered into an attorney-client relationship with an attorney because you have viewed this page. This information applies only to the laws ofthe State of Missouri and Illinois in the United States of America.
A conservator, in the context of a minor’s estate, is the person who acts on behalf of a minor. In cases involving more than $10,000.00 worth of assets, a court appoints them and they must report all transactions to the court, and show how they benefit the minor. It is important to remember that the word “conservator” has a root in the word, “conserve”, because the courts in this area take a very strict view of the actions of a conservator and require that everything be documented to the court and that the assets be essentially “conserved” for the minor and generally not spent but maintained for the minor until they turn 18 years of age. This is true even when the conservator is for the minor is a parent.
A guardian is a person appointed to take care of a minor’s needs, besides their financial transactions. They decide where the minor goes to school, where they live, if they need medical care, and related matters. A parent, absent termination of parental rights, automatically acts a guardian for their child. If a child is left without parents, then the probate court, in conjunction with the family court, must appoint a guardian to replace them. This may or may not be the same person as their conservator. Because a parent acts as a natural guardian, it not normally necessary to have them appointed as a guardian, but even a parent must be appointed as a conservator.
A guardianship for a minor terminates naturally, in the State of Missouri, when the minor reaches the age of eighteen. The person then becomes an adult and may make his or her own decisions. Very little action is required to terminate such a guardianship but this happens normally without any action by anyone, when a parent is acting as a guardian of a minor.
The termination of a conservatorship for a minor is much more important because there is a final accounting to the court to show how all assets of the minor were spent and it is then paid over to the minor. If there are any irregularities, sometimes these can be smoothed over with the mere approval of the minor, who is now an adult and can render such an approval. The conservatorship also terminates at age eighteen when the minor becomes an adult.
When a child is left without parents, then the probate court, in the county where the child resides, appoints a guardian and if the child has any money, a conservator. The probate court normally acts in association with the family court of that county in appointing the guardian for the minor. If only one of a child’s parents dies or becomes incapacitated so that they can no longer care for the child, then the other parent, by law, has the right to act as guardian for that child naturally, without court appointment, even if they are a non-custodial parent. Parents often specify in their will who they would like to have appointed to care for their children in the event of a tragedy. The courts often consider this when they are making such appointments and are usually given deference by the court. However, the court is not required to give this appointment deference and if the court believes that person is untrustworthy, they may appoint somebody else, including the public administrator for the county. The court does not have the deference to appoint that person if the child still has a living parent. The parent always has the right to act on behalf of the child absent termination of parental rights or other unusual circumstances. It is important that such a direction for a child be made and handled properly in the courts, to assure that a parent’s wishes are honored. I am always available to help parents in drafting wills and other important documents, like this.
In the State of Missouri, a child is prohibited from acting on their finances without a conservator when these amounts are over $10,000.00. If the child has money that is not held in a custodial account or receives money from an inheritance then they must have a conservator appointed to take care of their needs.
Normally, small amounts of money can be given to a child, without any further involvement. For substantially larger sums, legal action is required. Sums under $10,000.00 can be given to the minor under the Missouri Uniform Gift Act to Minors. This money must be given to the minor very carefully, with a custodian named, so that court conservatorship proceedings are not necessary. Often times, for relatively small amounts over “pocket cash,” the banks or brokerage house can attempt to help you make the Uniform Gift Act to Minor. For more substantial procedures I would recommend contacting an attorney that specializes in this area of the law like myself. I have also found on many occasions that banks, mortgage brokerages and other financial institutions believe they know more about the Uniform Gift Act to Minors than they actually do and have made errors in this designation. I would recommend that anybody making such a designation, at least ask an attorney to review the documents before they are signed.
A custodian is a person appointed to manage the finances of a minor, under the Missouri Uniform Gift Act to Minors. They act under the authority given to them in the document granting them power. I would always recommend that before a custodian is appointed, an attorney review documents in question.
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