Probate glossary

Administrator ad litem: a person appointed on a temporary basis and usually with specific (rather than general) authority to act where a permanent personal representative has not yet been appointed, e.g., where waste is occurring to estate assets, where an appointed personal representative is not functioning or where a conflict of interest exists as to the permanent personal representative, e.g., where the personal representative files a claim against the estate.

Beneficiary:  A person who inherits when there is a will.

Conservator: a person appointed by a judge to protect and manage the financial affairs of another due to physical or mental limitations or old age.

Decedent: The person who died.

Distributee: person or entity to receive a distribution through probate.

Executor: A person named in a will and appointed by the court to carry out the decedent’s wishes. This person is usually named as the seller of the real property.

Fiduciary: a person who holds a legal or ethical relationship of trust with one or more other parties (person or group of persons). Typically, a fiduciary prudently takes care of money or other assets for another person.

Guardian: a protector appointed by a judge to protect and manage the "person," when he/she takes charge of overseeing the daily activities, such as health care or living arrangements.

Heir: A person who inherits real or personal property when there is no will, i.e. intestate.

Intestate: When someone dies without leaving a will. When there is no will, the sale of the decedent’s real property often requires court confirmation.

Intestate succession: The order of who inherits the property when the decedent does not have a will.  This is determined by state law.

Legatees, or Devisees: People who are named in a will.

Letters of Administration: a document from the probate court appointing the personal representative of an intestate’s estate (i.e., no will).

Letters Testamentary:  a document from the court appointing the personal representative of a testate’s estate (i.e., with a will).

Personal Representative: a person appointed by the court to be in charge of a decedent’s probate estate.  Also called an executor or administrator.

Probate: a court-supervised process of transferring legal title from a person who has died (the “decedent”) to the person’s distributes.

Probate real estate sale:  The transfer of legal title (ownership) of real property from the estate of the person who has died to his or her beneficiaries or to a buyer under the supervision of the court.

Real Property: The term used to refer to real estate (land and buildings) in probate and trust sales.

Testate: When someone dies leaving a will.

Trust: When a person (trustee) holds property at another person’s (Settlor’s) requests for the benefit of someone else (Beneficiary).

Waiver: a written statement evidencing a person's intent to relinquish a known legal right or permit a requirement to be avoided. The waiver must evidence full disclosure of applicable facts and state with clarity the right or requirement waived.

Will: A legal document that lists a person’s wishes about what will happen to his/her personal and real property after death.

 

The following are steps in probate administration:

  • Hire an attorney to represent you.
  • Apply for Letters Testamentary if there is a will admitted (or apply for Letters of Administration without a will).
  • Publish notice to creditors. In Missouri, the date of first publication starts a six-month period for claimants to submit their claims to the court and the personal representative.
  • Inventory and appraise assets.
  • Administer the estate and sell property if funds are needed to pay bills.
  • Pay debts, claims, taxes, and expenses.
  • Prepare a settlement showing income and disbursements.
  • Obtain court approval for distribution and close estate.

 

Establishing Title to Real Estate

The administration of a decedent’s probate estate serves to establish clear title to any real estate which the deceased may have owned at the time of death. Real property passes directly to one’s heirs or to one’s devisee if a will is admitted to probate. The personal representative will have to obtain a court order to take possession of or sell the real estate unless the will gives the personal representative that authority. It does not technically form a part of the probate estate unless it is necessary to sell the property to pay debts or for other reasons as set out in the law. It is impossible for the heirs or devisees to sell or receive clear title to the property subject to probate for one year after death unless it goes through probate. In Missouri, probate may be opened and administered and a will may be filed within one year after the decedent’s death

 

Types of Probate Administration

Two types of probate administration  – “supervised” or “independent.” A supervised administration is closely monitored by the probate court. The court must approve many actions of the personal representative, who must also file annual settlements that are fully reviewed and audited by the probate division.  Independent administration is more informal and eliminates the need for supervision by the probate division and annual settlements. An estate may be “independently” administered if so designated in the deceased’s will, or if the distributees all agree.

 

Is An Attorney Necessary in Probate?

Yes, when a regular decedent’s probate is undertaken. An attorney is required to represent the personal representative in both supervised and independent administrations in Missouri. A lawyer can assure that all deadlines are met and avoid mistakes and delays. A lawyer can sometimes help explain the process to family members to prevent disagreements among them over various issues. Some people may file small estate affidavits and letters of refusal for spouses, minor children, or creditors without attorneys. But using an attorney can avoid costly mistakes, especially if real estate is involved. You should find an attorney who practices probate law. If you need help finding a lawyer in an outstate area or the Kansas City area, call The Missouri Bar Lawyer Referral Service at (573) 636-3635, or in Kansas call 1 (800) 928-3111 or kanconnect@ksbar.org.

 

What Is a Will?

A will is a legal paper that states who receives your property when you die. Each state has its own laws about wills. A will does not avoid the necessity of probate and must be “probated” to have legal effect. You may title your property in other ways so that probate is not necessary.

 

What is a Revocable Living Trust? A trust is an agreement that determines how a person’s property is to be managed and distributed during his or her lifetime and also upon death. A revocable living trust normally involves three parties: The Settlor – Also called grantor or trustor, this is the person who creates the trust, and usually the only person who provides funding for the trust. More than one person can be a settlor of a trust, such as when a husband and wife join together to create a family trust. The Trustee – This is the person who holds title to the trust property and manages it according to the terms of the trust. The settlor often serves as trustee during his or her lifetime, and another person or a corporate trust company is named to serve as successor trustee after the settlor’s death or if the settlor is unable to continue serving for any reason.   The Beneficiary – This is the person or entity that will receive the income or principal from the trust. This can be the settlor (and the settlor’s spouse) during his or her lifetime and the settlor’s children (or anyone else or a charity the settlor chooses to name) after the settlor’s death. A trust is classified as a “living” trust when it is established during the settlor’s lifetime and as a “revocable” trust when the settlor has reserved the right to amend or revoke the trust during his or her lifetime.