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Category Archives: Probate

Undue Influence: It’s Criminal

As of today, undue influence constitutes the crime of financial exploitation of an elderly or disabled person under RSMo 570.145. This puts Missouri among a growing number of states that are strengthening their stance against elder abuse, and it is a strong stance indeed. If the amount of money involved is $50 or more, the crime is a felony, and as the amount of money involved increases, so does the penalty.

This law applies to all people using a durable power of attorney, guardians, conservators and trustees who take financial advantage of elderly or disabled persons. Anyone who is an agent under a power of attorney or who has been given authority over the finances of another person needs to take notice of this new elder law. It is more important than ever to consult an attorney before taking any action that affects the finances of an elderly or disabled person. We can help caregivers and children as they act as agents for their parents, and we can help you or your loved one create an efficient and effective plan. We can help, contact us.

Financial elder abuse, along with physical elder abuse, often goes unreported. If you suspect that someone may be taking advantage of or abusing an elderly person, contact the Missouri Department of Social Services hotline at 1-800-392-0210.

Does A Will Avoid Probate?

No! Wills are your instructions to the probate court about what to do with your property. Property passing through a will goes through the probate process. The probate process is, essentially, a formal method to make sure that your bills are paid and that your beneficiaries receive the property that you are leaving to them.

So, what are the benefits of a will if it doesn’t avoid probate?

1 – A will allows you to control who receives your property after you die. Do you want to give all of your money to your spouse, your children, or only some of your children? Do you want to make sure that a disabled child, your parents or other dependent is taken care of? Is providing for your place of worship, school or charity important to you? A will can ensure that your wishes are followed. A will can also provide for contingent beneficiaries if a beneficiary unexpectedly predeceases you.

2 – Wills save your family money, as they can authorize many shortcuts that streamline the probate process. Wills can allow your executor to proceed without probate court hearings, waive the surety bond requirement, and allow the court to authorize independent administration. Without a will, your family may have to endure the long form of probate – supervised administration.

3 – A valid will is the only legal way to nominate a guardian for your minor child or children. If you have minor children, you know how important they are. Without a will, your opinion will not legally count. Neither the court nor your family members will have the benefit of your insight when determining who will care for your children and who will manage their money. You can also use your will to create a trust for your children’s education and support.

4 – Wills are the lowest cost planning option. They can be simple and yet very effective. Wills cost less than trusts or other sophisticated legal documents. A simple will, drafted by a licensed attorney, is the baseline protection that everyone with a child, home or bank account needs.

5 – Wills never expire during your lifetime, they are good for life. The will you create today has no expiration date. A valid and proper will can provide for the transfer of current assets as well as any property you may accumulate in the future. This is not to say that you should never review your will. Any time you have a major life change, you should make sure your will still reflects your wishes.

6 – Your will is a roadmap for the probate judge and your executor to follow. You direct how your property is handled and distributed. Without a will, your property will be distributed according to the intestate laws – these are the laws that provide the general default plan for people who die without a will. These default rules do not authorize any of the allowable shortcuts and may or may not fit your wishes regarding who receives your property.

7 – Your will shows your family that you care. A valid will makes everything easier, simpler and more streamlined. It eliminates hassle and gives your family the tool that they need in a crisis. The last thing a family wants to deal with during a time of mourning is a complicated and messy legal situation, especially one that could be avoided.

If you would like to learn more about what a will can do for you and how it is an integral part of an estate plan, contact us.

When Do You File a Will After Someone Dies?

The months after a loved one passes away can be overwhelming, and important deadlines can easily fall through the cracks.  One of the most important steps to take is submitting your loved one’s will to the probate court.  In Missouri, wills must be admitted to the probate court before the one year anniversary of someone’s date of death.  Missouri law prohibits someone from filing a will, becoming executor or opening a probate estate more than one year from a Missouri resident’s date of death.  Other states allow a longer time to submit a will to probate.   But in Missouri, a last will and testament that is not admitted to probate within the one-year period is never recognized as the true last will and testament of the deceased.

This time limit is designed to provide certainty and closure for the families and heirs.  There are, however, other legal methods to transfer or re-title assets of someone who has died, after the one year anniversary has elapsed — these include a statutory Small Estate by Affidavit and a Petition for the Determination of Heirship.

If you have a loved one who has passed away and you need assistance with life insurance, probate, transferring their property, Mo HealthNet or other creditor claims, or winding up their affairs, we can help.  Call us at 573-441-9000 or email us at legal@barchetlaw.com.  We can help you get through this difficult time efficiently and with compassion.

Debt Collectors Collecting from Heirs

A recent article from The Trust Advisor highlights a new breed of debt collectors.  These collection companies specialize in collecting debts from the estates of people who were in debt, especially credit card debt, at the time of their death.

Many survivors, including widows, parents and children, receive calls from these collectors attempting to collect from the estate.  The Trust Advisor article suggests that these debt collectors are using a new tactic: they are convincing grieving family members that they need to pay off their loved one’s debt, even though there may be no legal obligation to do so!

If you are receiving these types of phone calls, you should contact a probate attorney who can help you with your loved one’s estate and let you know your rights.  Additionally, if an attorney is representing the estate, the debt collectors cannot call you anymore.  They have to direct all communication to the attorney.

If you need help wrapping up your loved one’s affairs or have questions about your rights or obligations as an executor or heir, do not hesitate to contact us and schedule an appointment.

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