Going to court to have someone appointed to make decisions for you if you did not create Durable Powers of Attorney, prepare a Will and make beneficiary designations is stressful, costly and time consuming – AND AVOIDABLE IN MOST CASES.
“Probate” refers to a specific division in the Circuit Court of all counties that handles issues pertaining to incapacity and the handling of assets after someone dies. Having to go through probate requires the assistance of a lawyer in almost all situations.
If someone dies without having named the people they want to inherit their assets (“beneficiaries”) (bank accounts, CDs, stock, their home, life insurance, IRAs, retirement accounts and any other asset) either through forms that allow the designation of beneficiaries or through a trust that has been funded with someone’s assets, the probate court will oversee the distribution of the assets of someone who died.
Simply having a Last Will and Testament DOES NOT keep your assets out of probate – you MUST make beneficiary designations. If someone dies and does not have a Will, each state has laws, called Intestacy laws, the specify who will inherit someone’s assets if the person died and did not have a Will.
For example, most people are shocked to find out that if someone died without a Will and they have a spouse and children, their spouse DOES NOT inherit all of their assets – Missouri law gives a spouse $20,000 and only ½ of the assets; the children receive the other ½ of the assets. A spouse also has other rights to claim a portion of the assets by law.
If someone become incapacitated – unable to make health care and financial decisions because of illness, injury or a condition they have had since birth and do not have or could not create Durable Powers of Attorney to name decision-makers in these situations, someone will need to go to Court and through a hearing, request that the Court appoint a decision-maker. This can usually be avoided if Durable Powers of Attorney are created. Everyone over the age of 18 who has capacity needs to have Durable Powers of Attorney created.
When a guardian and conservator are needed, if an estate ends up in probate, or other issues arise requiring the involvement of the Probate Court, the attorneys of Debra K. Schuster & Associates work with families to prepare and file required documents with the court and guide them through probate process.