Probate can deal with assets after a person dies but it can also cover the care of an individual who may no longer be able to care for themselves or a minor whose parents have passed away.
Guardianship & Conservatorship
This area applies when someone is not able to take care of their personal needs or financial needs either due to their being under the age of 18 and without living natural parents or persons over the age of 18 who cannot take care of these needs or need some assistance with taking care of these needs.
For adults, there are two types of Guardianships and two types of Conservatorships.
A Guardianship is authority over the person such as where they live, their medical care, etc. A Conservatorship is authority over a person's finances. There is Partial and Full powers that can be granted by the Court. If someone merely needs help with these decisions, partial guardianship and/or conservatorship may be needed. If the person is not in the condition to assist with making decisions, full guardianship is needed. Normally the Court prefers to have ONE person appointed. Although the Court will appoint Co-Guardians in some instances (mainly parents of a disabled adult child), they do not want to appoint Co-Conservators since they want clear evidence of which Party is involved in the various transactions needed for the benefit of the Ward (the person who needs the help).
The hardest part for most people is that the individual's physician will need to fill out a form to provide to the Court as evidence of the capabilities of the individual and if it appears they can perform certain tasks without assistance. We will provide the form for the Physician to make things as easy as possible This task will need to be done PRIOR to filing the case with the Court.
For people with children with autism, this can be a hard decision and there are many factors to consider in if this step is best for your child. Each case of autism does not look like another and certainly a physician or other social worker may have opinions of if this is necessary. We understand that your goal is to protect your child and this is a big decision for you. We are here to help you talk through this decision to make the choice that is best for your family.
Loss of Loved Ones
If you have a family member that has passed away, let us send you our deepest condolences. We are sorry for your loss. We understand that this is a hard time for you and there are many things to do. You may be planning funerals, figuring out what you can do with cleaning out their residence, dealing with difficult family dynamics, etc. Hopefully you are also having the experience of celebrating the person you loved with friends and family and telling good stories. At some point you will be ready to sit down with an attorney to figure out the next steps.
When a person has died, the probate court can help administer the assets where the title has not automatically transferred at death. If there has been a Beneficiary Deed on a house, title passed at death and no probat is necessary. If there was a Transfer on Death (TOD), again this means that the assets is NOT part of the probate estate. This can be true on many bank accounts, retirement accounts, or other financial accounts. The only way to know is to contact the financial institution.
If they talk to you, likely there was a TOD set up on the account. On life insurance policies, the beneficiaries are normally named and again this is not part of the probate estate. If the individual transferred all assets that had a title, there is no probate of the estate unless a creditor tries to file an action. This is not very likely. If there are titled assets which title remains in the name of the person who is deceased like a house, car, bank accounts, retirement accounts or other similar assets, then you must have legal authority to distribute these assets to the heirs. This is the purpose of Probate.
There are several types of estates which come into play based on if there is a spouse who is still living or depending on the value of the assets. The smaller estates are administered differently than large estates. Another factor involved is if the person left a Last Will and Testament or how long it has been since they passed away. Your attorney can discuss the specific type of probate which is used in your situation and how the process works. You will need an Original Death Certificate and the paid funeral bill to file the case. Further, if there is real estate involved, you will need a letter from a realtor stating the approximate value of the property.
If there was a Last Will and Testament that allowed for Independent Administration AND all the heirs are in agreement on allowing the named Personal Representative to serve without the formal Court supervision, administering the estate will be much easier. If there are more than one beneficiary and there are a large amount of assets, the Court may require the Personal Representative to obtain a bond. This is an insurance policy that if you misuse the assets in some way, there is an insurance policy of sorts to protect the heirs. If the Personal Representative has a low credit score or has filed for bankruptcy in the past, they may no qualify for a bond.
Probate does not have to be difficult, however, you will likely need an attorney to help you. We are here to help navigate the legal requirements so that the assets of the estate can be administered and the funds/ property goes to the heirs. In larger estates, there may also need to be claims paid to creditors of the deceased person. The good news is that you have an attorney who will help you with all these tasks and lighten your load with this task of taking care of the estate. Hopefully, there will not be anyone who contests how things are done and we can do this as quickly and painlessly as possible.
Why Choose Us?
Frequently Asked Questions For Guardianship/ Conservatorship:
What is required for Guardianship of an adult?
There are two levels of Guardianship-- Full and Partial Incapacity.
Incapacitated Person: A person who is unable due to a physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he is unable to provide himself with food, clothing, shelter, safety, or other care to such an extent that physical injury, illness or disease is likely to occur.
Partially Incapacitated Person: A person lacks some, but not all, of the abilities necessary to provide himself with food, clothing, shelter or other essential care.
What does it mean to be a Guardian?
Guardian: A person appointed by the Probate Court to have custody over an incapacitated person. This person helps with decisions over where the incapacitated person will live, their health care, and day to day activities.
What does it mean to be a Conservator?
Conservator: A person appointed by the Probate Court who has custody of the property of the incapacitated person and oversees the financial affairs of the incapacitated person.
If a Guardian is appointed, do I need to leave my house?
The standard of the Court is that the Ward (person who needs help) must be placed in the least restrictive environment. The definition of least restrictive environment is described as follows:
The legal requirement that an incapacitated person’s liberties should be limited to the minimum necessary environment necessary to prevent him from injuring himself or others and which provides him with such care, habitation, and treatment as is appropriate considering his physical and mental condition.
If a Conservator is appointed, what is their job?
The Conservator Manages the Ward's Financial Resources: They have the authority to obtain, administer, or dispose of real, personal and business property, benefits, income, to protect assets from waste or loss, to provide the care and support of the Ward.
Who May File for Guardianship?
Any interested person may file as long as they are (1) over the age of 18; (2) do not have a felony conviction; (3) are not a Judge, Court Clerk or owner/employee of facilities licensed by Department of Mental Health or Social Services.; (4) are not a habitual drunkard or drug addict; (5) you cannot have served as a Guardian/Conservator in the past had been removed. Non-residents of the State may be appointed; however they must have a Registered Agent to accept service in the State of Missouri. The Court will certainly favor a person requested by the Ward, a family member, or a person how had an appointment under a Durable Power of Attorney at some point. The Court normally will appoint in this order: the Spouse, Parents, Adult Children, Adult Brothers and Sisters, and other close Adult Relatives. If a family member or friend is not available to serve or is unable to serve, the Court can appoint the County Public Administer. This is sometimes preferable if a family member cannot serve or if they prefer to keep their role as the parent, sister, brother, or child rather than the Guardian who may have to make hard choices in the best interest of the Ward.
Can you file a Joint Petition? Some courts will allow a Joint Petition. This is normally a husband and wife filing together. However, some Courts will only allow one person to serve.
Are there any additional special conditions to serve as Conservator? Yes. You cannot have filed bankruptcy, cannot be found guilty of fraud, or have any type of stealing charges. Corporations and not-for-profit organizations can also be appointed.
Does the Person Need to Consent?
It is preferable if the Ward consents to appointment but this is not necessary. If the Respondent/Ward does not consent that he needs guardianship or conservatorship
(partial or full) or does not consent that you should be appointed, the matter will be contested. Of course, you must have a doctor sign a Physician’s Affidavit that the Respondent/Ward is either partially or fully incapacitated. There can be other witnesses called such as Social Workers, other family members, nurses, or other individuals who have contact with the Respondent. The Court will ultimately make the decision on if the Respondent/Ward is in needs of guardianship and/or conservatorship and the level of authority the Guardian and Conservator will have.
What if the Person Does Not Have Family?
The Person filing the case does not need to be family in order to be appointed. Another option is that the Public Administrator can be appointed as Guardian and Conservator.
Public Administer: The Public Administer is a County government official who serves as a Guardian or Conservator for a person who does not have another person available to serve.
Is the Conservator Responsible for the Debts of the Ward?
No, as long as the conservator indicates that they are acting on behalf of the Ward in a representative capacity AND they have not misappropriated funds or made bad choices regarding funds. The Court will likely require the Conservator to post a bond sufficient to protect the assets of the Ward. This is an insurance policy for you that helps cover any issues about whether the funds were administered appropriately.
Do I have to hire an attorney for Guardianship and Conservatorship?
Most Courts do require representation for the initial filing. The Guardians and Conservators are required to file a report on a yearly basis. You may not be required to have an attorney to file the Guardianship report but if you do have to file an Accounting as the Guardian, you will likely be required to hire an attorney for help.
Frequently Asked Questions for Probate of
Decedent's Estate:
Does it matter how much money a person has before Probate is required?
This answer is a bit more complicated. There are options for a spouse when the assets are below $15,000 of equity. However, for most estates there are two types- Small and Large
Small Estates are when the person has less than $40,000 in EQUITY in their property. If the amount is over this level, the estate is considered to be a large estate.
How does Probate Work?
The Personal Representative manages the assets to sell them or to see that the Heirs/Distributees receive the property and to pay claims filed by creditors. The Court oversees this process. The Applicant will file the appropriate documents with the assistance of their attorney requesting authority from the Court to oversee the assets, pay claims, and make distributions. The Court will issue Letters which is the authority to act as the Personal Representative. The opening of the estate and notification to creditors to file claims is filed unless the estate is less than $15,000.00. The publication must run for one month. Once this is completed, the Personal Representative will file an Inventory and Appraise the Assets. The next step will to pay debts, claims, taxes, and expenses. After all the debts are paid, the Personal Representative will prepare a settlement showing the remaining assets of the estate and what the proposed distribution will be. If the Personal Representative or Attorney are requesting reimbursement from the estate, they will file an Application for Compensation for approval for payment with the Court.
How Long Does It Take?
This will depend on the amount of assets; however, for most cases the beneficiaries or heirs cannot receive distribution for six months and 10 days after the first date of publication of the Issuance of Letters. Often it takes more than a year or more to finish the administration.
Will the Creditors Receive Money?
Small Estates must indicate that all bills have been paid including funeral bills. For larger estates, the creditors can file claims to be paid. If there are not assets sufficient to pay them, they will be paid in proportion by certain priority classifications which include funeral bills, tax liabilities, secured claims, and general claims. The Personal Representative will NOT be liable to help pay any debts.
How Much Does It Cost?
As the person filing the case, normally you will need to pay fees to the attorney up front and then request reimbursement from the Court for the money you paid. Small Estates are done on a Flat Fee Basis for Attorney Fees plus you must pay for the filing fee, costs of any publications, and any other costs required by the Court for filing of Inventory. For Large Estates, the State of Missouri has a sliding scale which is based on the amount of assets of the Estate. You will normally pay a certain amount up front as with a small estate and the attorney can file for additional payment according to the allowances of State guidelines.
Do I Get Paid as the Personal Representative?
You can request payment especially when dealing with a large estate. The amount allowed in that case is also based on the same scale as the attorney fees.
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The choice of a lawyer is an important decision and should not be based solely upon advertisements.
By using our site or sending an email to our firm you agree to the Terms of Service.
