Why Is Probate Required If There is a Will?

Families facing the loss of a loved one often assume that their last will and testament will prevent the need for a probate court proceeding. However, this is a frequent misconception in estate planning. A will is a basic document that shows a deceased person’s wishes for their estate. However, having a will does not always mean a court will not be involved.

The need for a formal probate process depends on many factors. These include the type and value of the assets, whether they are non-probate assets, and the state’s inheritance laws. Knowing the different ways to handle estate administration is important. It helps people make decisions during hard times.

Dumm Takeaways

• A will directs the probate process but does not prevent court involvement.
• Missouri offers a small-estate exception for estates under $40,000, using an Affidavit for Collection of Personal Property.
• Arkansas allows a small estate affidavit for estates with a value under $100,000.
• Nonprobate property, such as assets with beneficiary designations, passes to heirs without probate.
• Transfer on death deeds are a way to transfer real property outside of court.
• The formal probate process can take six months to over a year to complete.
• Without an estate plan, intestate succession dictates how property is distributed, which may cause family disputes.
• The personal representative has legal authority, confirmed by the probate court, to manage the estate.
• A revocable trust keeps the distribution of assets and beneficiaries’ names private.
• All probate filings become public record, exposing the details of the decedent’s estate.

Misunderstandings of Wills and Probate

Why a will does not magically prevent probate

A will, or Last Will and Testament, is a set of instructions for the probate court, not an alternative to it. The probate process is the legal procedure that authenticates the will and supervises the transfer of probate assets. The court must appoint a personal representative. The court also gives them the authority to distribute the decedent’s estate according to the will.

Purpose of a Will in Missouri and Arkansas

A will’s primary function is to give you control over your legacy. It lets you choose who gets your real and personal property. This overrides state intestacy laws that determine distribution if there is no will. It also allows for the selection of a guardian for minor children and can help minimize family disputes.

Differentiating between an estate plan and a simple will

A simple will is only one component of a larger estate plan. A complete estate plan may include tools like a revocable living trust. It may also have transfer on death deeds and beneficiary designations on accounts. These extra documents are the real way to avoid the court system completely. They create a smooth transfer of property.

Thresholds That Trigger Probate in Missouri

When an estate is considered “small”

A small estate in Missouri, with a value under $40,000, can bypass formal probate court proceedings. The small-estate exception makes it easier to transfer a deceased person’s estate. It avoids the high costs and long time of a full administrative process.

Simplified probate process for modest estates

Heirs can use an Affidavit for Collection of Personal Property, a shortened process that expedites the transfer of assets. The simplified procedure lowers the filing requirements. It also reduces legal fees. This makes the process faster and less expensive.

Formal probate process for larger estates

When the estate’s size exceeds the small estate limit, a formal court process becomes a requirement. Formal probate involves multiple filings, hearings, and a longer timeline. The process is a method of proving the last will and testament and paying any outstanding creditor’s claim.

Table: Probate Thresholds and Tools

State	Small Estate Monetary Threshold	Legal Tools	How it Works
Missouri	Under $40,000	Affidavit for Collection of Personal Property	A sworn statement filed with the court, allowing heirs to collect and distribute personal assets without a full court process.
Arkansas	Under $100,000	Small Estate Affidavit	An affidavit filed with the circuit clerk after a 45-day waiting period, allowing for the direct transfer of personal and real property.

Arkansas’s Unique Small Estate Affidavit

What qualifies as a “small” estate

Arkansas law provides a simplified path for small estates with a value not exceeding $100,000. This is the maximum amount a decedent’s estate can have to use the simpler process. An estate can include both real and personal property. This helps families avoid long court proceedings.

Process for using a small estate affidavit

After a 45-day waiting period, a small estate affidavit can be filed with the circuit clerk. The sworn statement details the property and heirs. A certified copy is given to the financial institution or person holding the assets. This lets them transfer the property directly without more court involvement.

When you absolutely need to go to probate court

A formal probate court process is a requirement for estates exceeding the $100,000 threshold or those with complex issues. If there are unpaid debts, disputed wills, or no qualified heirs, a full probate process is usually needed. This process provides a legal and final solution.

Not All Assets Have to Go Through Court

Assets with beneficiary designations

Certain non-probate assets pass directly to heirs without any court involvement. Examples include:

• Life insurance policies
• Retirement accounts
• Bank accounts with Payable on Death (POD) or beneficiary designations.

When a person dies, the financial institution gives the funds to the named person. This skips the whole probate process.

Transfer-on-Death Deed for real estate

A transfer on death deed, recognized in both Missouri and Arkansas, is a powerful tool for transferring real estate. A property owner can name a beneficiary. This person will automatically inherit the property when the owner dies. This type of deed is a simple way to transfer property ownership, avoiding the time and expense of formal probate.

Joint ownership with survivorship rights

Another effective strategy involves joint ownership with the right of survivorship, such as in a joint tenancy. When an owner dies, their share in the real property or other assets automatically goes to the surviving owner. This method is common for couples, where a surviving spouse inherits the asset directly.

Table: Assets That Avoid Probate

Asset Type	Non-Probate Mechanism	How it Works
Bank Accounts	Payable-On-Death (POD)	You name a beneficiary who will automatically receive the funds upon your death without probate court involvement.
Retirement Accounts	Beneficiary Designation	The account passes directly to the named beneficiary, bypassing the probate process entirely.
Real Estate	Transfer-on-Death (TOD) Deed	A deed filed during your lifetime that names a person to inherit the property directly upon your death.
Jointly Owned Property	Joint Tenancy with Right of Survivorship	The surviving co-owner automatically inherits the entire property when the other owner passes away.

The Cost of Not Planning Ahead

Fees and expenses that come with probate

The probate process comes with a variety of expenses that diminish the overall decedent’s estate. Probate costs can include:

1. Court filing fees
2. Publication fees
3. Compensation of the personal representative

In many cases, a probate attorney is hired to navigate the process, adding legal fees to the total. A fiduciary bond may also be required, which further adds to the final expense.

How a will minimizes the potential for family disputes

A clear Last Will and Testament is a powerful tool against family disputes. It gives clear instructions for distributing personal and real property. This leaves little chance for misunderstanding. Without a will, the state’s intestacy laws take precedence, which may not align with the deceased’s wishes and can lead to bitter disagreements among heirs.

Financial burden on your heirs without a clear plan

Without a proper estate plan, heirs are forced to deal with the complexities of the legal system during a time of grief. A lack of preparation often results in unexpected probate fees and a longer timeline for asset distribution. A disorganized estate can cause loved ones to face heavy financial and emotional burdens. They may pay for the administrative proceedings themselves or wait for the estate to settle.

The Role of the Executor in Missouri and Arkansas

The executor’s responsibilities with and without a will

The person in charge of estate administration is called the personal representative. A Last Will and Testament names this person directly, giving them the authority to carry out the deceased person’s final wishes. If there is no estate plan, the probate court chooses an administrator. This person manages the assets according to inheritance laws.

A legal authority granted by the probate court

The court officially appoints a personal representative. This appointment is confirmed by a document called letters testamentary. This legal instrument grants the individual the power to act on behalf of the decedent’s estate. The representative can access financial accounts and collect assets. They can also pay debts and manage the deceased person’s property and debts before any distribution happens.

Getting the process started from death to distribution

The first step for a nominated personal representative is to locate and begin the process of filing a will with the probate court. It is during this initial phase that the court reviews the will and formally appoints the representative. An experienced probate attorney can help with the initial filing. They help the personal representative through the complex administrative process. They help reach the final distribution.

Timeline from Death to Distribution

A typical timeline for probate

The standard estate administration process in Missouri and Arkansas can typically take six months to over a year. The length depends on factors like the size of the decedent’s estate and the local probate court’s caseload. The personal representative must complete several tasks within this timeline. They must do this before the final distribution can happen.

Common reasons for delays

Probate can be delayed by several factors. Will contests, disputes over real property value, or disagreements among heirs can make the process take much longer. Clear communication among family members and a detailed estate plan can help prevent many of these delays. Unpaid taxes, especially federal estate taxes, can also hold up final distribution.

The creditor claims period you must observe

A mandatory part of the probate process is the creditor’s claim period. In both Missouri and Arkansas, creditors have a specific timeframe to file a claim against the decedent’s estate. The personal representative must publish a legal notice. The inherited property cannot be fully given out until this time ends. The probate fees of this administrative process must also be paid during this time.

Why You Might Still Want to Avoid Probate Entirely

The power of a revocable living trust

A Revocable Living Trust is a strong estate planning tool. It holds your assets, like real property and trust funds. This lets your heirs receive them directly without court involvement. The trust creator maintains complete control over the trust assets during their lifetime. A trust can also be a more complete solution than a will alone.

How trusts protect privacy and reduce costs

Unlike a will, which becomes a public record once submitted to the probate court, a living trust keeps all financial affairs private. The distribution of assets and beneficiaries’ names are not disclosed to the public. Trusts can also help families avoid considerable probate costs and legal fees.

Other strategies to keep assets out of court

A living trust is not the only option for avoiding probate. Other tools include:

• Transfer on death deeds for real estate
• Payable on Death designations for bank accounts
• Carefully titled joint ownership with rights of survivorship.

All of these are non-probate assets. They can transfer ownership quickly and privately. This makes the process easier for your beneficiaries.

The Public Nature of Probate Records

Your private family matters become public record

The moment a Last Will and Testament is filed with the probate court, the details of the decedent’s estate become a public record. Anyone can access the documents. These include the list of assets, the names of beneficiaries, and how all real and personal property is distributed.

Downside of public scrutiny

Open access to estate details can attract unwanted attention. Scammers, creditors, and speculative investors often search these records. Anyone can easily find a family’s financial information. This creates a security risk for the surviving family members and their new inheritance.

Privacy matters for your beneficiaries

For many families, keeping their financial matters private is a top priority. When an estate becomes public, it can cause uncomfortable conversations. It can also cause jealousy among relatives and lead to family fights. Living trusts, a common alternative, are private documents that keep sensitive information out of the public domain.

Frequently Asked Questions

1. What is a Pour-Over Will?

A Pour-Over Will is a legal document used alongside a revocable trust. It ensures that any assets not transferred into the trust during a person’s lifetime are directed into the trust upon their death. This makes the trust a complete container for the estate.

2. Are Missouri and Arkansas community property states?

No, neither Missouri nor Arkansas are community property states. Both states use “equitable distribution” in divorce cases. This means they divide property fairly but not always equally. This also impacts how a spouse inherits a portion of the estate.

3. Is there an inheritance tax in Missouri or Arkansas?

There is no state-level inheritance tax in either state. The Internal Revenue Service may require a federal estate tax return for very large assets. Most estates are below the taxable limit.

4. What is a self-proving affidavit?

A self-proving affidavit is a signed statement from the will’s witnesses, notarized when the will is created. It attests that the will was properly executed, which can simplify the process and save time in probate court when the will is filed.

5. What happens if a will is not filed?

If a will is not filed with the court, the estate will be handled as if no will exists. The property will then be distributed according to intestate succession, which is the state’s plan for inheritance.

6. What Are Payable-On-Death Accounts?

Payable-On-Death Accounts are bank accounts with a specific beneficiary named. When the owner dies, the funds in the account go directly to the beneficiary. This makes them a type of nonprobate property that avoids the court system.

7. Is a probate bond always required?

A probate bond may be required by the probate court to protect the estate’s beneficiaries. The bond acts as insurance against the personal representative mismanaging the estate’s assets. Often, a will can waive this requirement.

Conclusion

A will on its own does not shield your family from the probate process. A comprehensive estate plan is the best way to secure your financial future and honor your final wishes. Taking proactive steps to create a personalized plan gives you control over your legacy and provides peace of mind. Book a Free Consultation.