Probate administration can be a complex undertaking. It is also necessary if the wishes expressed in an individual’s Last Will and Testament (Will) are to be honored. In the absence of a Will or even of any property, some form of estate administration must still be carried out in order to ensure that the deceased person’s final income taxes are filed, the proper parties notified of his or her death, and so on. Regardless of the circumstances of a loved one’s death or the complexity of their estate, many Missouri and Kansas residents find it helpful to work through the administration of an estate with the support and guidance of an estate planning and probate lawyer.
If you are preparing your estate plan, or if a member of your family has recently passed away and you are preparing yourself for the process of settling his or her estate, you have likely seen the terms “probate,” “probate administration,” and “estate administration” used side-by-side. You may even have seen these terms, or various combinations of them, used interchangeably. This kind of ambiguity can make an already challenging process even more difficult to navigate, and the problem is not helped by the fact that, although many of the sources of information about probate and estate administration you may find online are aimed at a broad national or even international audience, the usage of specific terms can vary significantly from one state to another, thanks to differences in how the laws in distinct jurisdictions have developed over time.
As a starting point, you may find it helpful to consider that the American Bar Association (ABA) confines its definition of probate to the validation of an individual’s Will and the appointment of an executor or personal representative to carry out whatever instructions are given in that document concerning the disposition of the property the testator (the person who has made the Will) has left behind. The word probate comes from the same root word as modern English prove, and so the distinguishing feature of probate administration is “proving” the Will: submitting it “to probate” and getting the court’s approval of the Will’s validity so that the person appointed as executor or personal representative can begin the process of probate administration, which means not just proving the Will’s validity but carrying out its instructions. In practice, you will often see the “administration” left off as implied, and the whole process, from submitting the Will to probate to the final disposition of property, referred to as “probate”; just keep in mind that once the Will has been proved, all the tasks involved in carrying out its instructions are administration.
Probate is clearly impossible when there is no Will to probate (validate and follow), a fact which helps to explain why you may sometimes see probate contrasted with intestate succession. Intestate succession is the procedure for settling a decedent’s debts and transferring his or her remaining property to heirs when there is no Will to follow. Intestate succession is also used to proceed with the administration of the estate when a Will is submitted to probate, but fails the “proving” step (meaning the court finds the Will invalid, and its instructions are considered void).
At The Binder Firm, many Kansas City families consider our office a natural choice for probate administration if we have assisted their loved one in preparing their Will, but we also regularly handle cases of intestate succession. In fact, from a procedural point of view there is a great deal of commonality between probate administration and intestacy proceedings; the important differences for friends and family tend to lie in the rigidity with which a decedent’s property must be distributed under intestate succession, when state rules establishing inheritance rights by degree of kinship dictate who will receive a share of the state, and in what portion.
In intestate succession, the court will still appoint someone to carry out the administration of the estate, but under Mo. Rev. Stat. 473.110 will make the appointment by issuing letters of administration, rather than the letters of testamentary, the Probate Court will provide when a decedent’s estate is to be settled through the probate process. Some jurisdictions use different terminology for the administrator’s role, depending on whether administration is via probate or the application of state intestacy laws; Missouri folds all of the common variations under a single title and refers to the person responsible for administering a decedent’s estate as its personal representative, under Mo. Rev. Stat. 472.010(26).
Many testators choose to name a family member, such as a spouse or adult child, or a close personal friend, as their executor when they create their Will, and as a general rule, Missouri’s Probate Courts honor these preferences by appointing the individual so named as the personal representative of the estate. In other situations, especially when the individual preparing the Will anticipates that his or her estate plan may involve potentially complex matters such as trust administration, the testator may actually name a probate lawyer as their executor, or may name an attorney as co-executor of their estate alongside an individual they know and trust on a personal level.
All states have some form of probate administration, as well as intestacy laws for governing the administration of an estate for which no Will can be proved, and generally speaking, they do go by these names. Obviously, only one option, probate or intestate succession, will apply in any particular case, but both are subsets of the larger category of estate administration, which (again according to the ABA) is something of an umbrella term. In addition to the disposition of a decedent’s property to beneficiaries (through probate administration) or heirs (intestate succession), estate administration also covers such necessary matters as filing the deceased person’s final income tax returns and reporting his or her death to appropriate parties; those parties will depend on the individual’s personal history, but the Social Security Administration and institutions that have managed the decedent’s retirement accounts are common examples.
Estate administration always has to be carried out in some form, regardless of whether the deceased person left behind a valid Will, and even if there is no property to distribute via intestate succession (some people do leave behind more debts than assets). Most states, including Missouri and Kansas, have some form of simplified administration for “small” estates (usually defined in terms of the estimated value of the total property in the individual’s estate) that have relatively simple assets (complex asset management strategies or disputes over ownership may disqualify even a very small estate from an expedited administration). These simplified forms are the ones that tend to see the greatest variation in nomenclature from one location to the next; in Missouri, the primary method of expedited non-probate administration for small estates is the procedure for administration via “small estate affidavit,” under the provisions of Mo. Rev. Stat. 473.097.
Because estate administration is a larger category than the probate process itself, individuals who are preparing to probate loved ones’ estates need to consider all of the component tasks that precede the proving of the Will (if there is a Will) and all of those which must be carried out irrespective of whether the individual’s estate meets Missouri and Kansas’s requirements for a small estate affidavit. These more expansive duties of an estate administrator (personal representative) involve, among other things, significant interaction with state and federal tax systems, and as a result you will find that the Internal Revenue Service (IRS) outlines a list of responsibilities that many individuals, even those who feel otherwise well-prepared to manage the process of locating the beneficiaries named in a loved one’s Will and making sure that these individuals receive the bequests intended for them, often find somewhat daunting.
Fortunately personal representatives do not necessarily have to navigate probate administration or the settling of a family member’s estate on their own. One of the more common types of work we manage as estate planning and probate attorneys is supporting individuals named as personal representatives through the probate administration process. Some Missourians do simply name an attorney as their executor in their Will, but even if your loved one named you (and only you) as the personal representative of your estate, you are still welcome to seek the support of a legal professional to provide guidance in identifying the correct forms and in meeting the essential filing requirements. Working with an attorney can often free up individuals charged with the administration of loved ones’ estates to handle the more personal tasks associated with probate administration, such as the passing on of personal property that has sentimental value. To schedule a consultation or simply to learn more about the probate administration services we offer at The Binder Firm, contact us today to reach our Kansas City office.