Probate Code Changes Continue Trend Toward Simplicity

by Bruce A. Tannehill

Enactment of the 1980 Probate Code brought forth many simplifications to Missouri’s probate process. In succeeding years, the Missouri General Assembly has enacted additional changes which further simplified the process. The 1996 General Assembly made numerous changes to the Probate Code¹ which continued this trend.

In 1988, the United States Supreme Court decided Tulsa Professional Collection Servs., Inc. v. Pope,² declaring the Oklahoma non-claim statute violated a creditor’s due process rights because it failed to require a court-appointed personal representative to provide creditors who were known or reasonably ascertainable with actual notice of the estate. Because Missouri’s non-claim statute³ is very similar to the Oklahoma statute declared unconstitutional in Pope, concerns were raised that the Missouri statute suffered from the same constitutional flaws as the Oklahoma statute.⁴ Responding to those concerns, in 1989 the Missouri General Assembly enacted a "self-executing" statute of limitations. Section 473.444 bars all claims against a decedent’s estate which are not filed within one year of the decedent’s death. In conjunction with this change, the General Assembly also required that a decedent’s will be admitted to probate⁵ and administration of the decedent’s estate commenced within one year of the decedent’s death.⁶

In working with the new provisions, Missouri probate judges and practitioners became aware of problems in coordinating these provisions with other portions of the Missouri Probate Code. As a result, The Missouri Bar’s Probate & Trust Law Committee’s Probate Code Subcommittee, Senator Harold Caskey and others began working on a revision of the Probate Code. The result was Senate Bill 494 (the "bill"), signed by Governor Carnahan on May 23, 1996. The bill makes both substantive changes and housekeeping changes to the Probate Code and contained an emergency clause, making it effective immediately upon its signing by the governor. Unfortunately, it did not specify how it applied to the administration of estates of decedents who died prior to the effective date and were open at the effective date. With the uncertainty, the prudent course is to consult with the probate division administering the estate to determine how that court will apply the particular provision in a specific situation.

Testate decedents. Section 473.050, RSMo 1994, previously required a will to be presented within a specified time⁷ but did not specify how presentment occurred. Now § 473.050.2 defines presentment as either delivery of a will to the probate division of the circuit court which has venue over the estate⁸ or delivery of a verified statement to such court concerning a lost will⁹ and filing one of the following: (1) a small estate affidavit¹⁰ requesting the will be admitted to probate,¹¹ (2) a petition requesting the will be admitted to probate,¹² or (3) "[a]n authenticated copy of [an] order admitting [the] will to probate in any other state, territory, or district of the United States."¹³ For presentment to occur, the will does not have to actually be admitted to probate. It is sufficient if an application to have it admitted to probate is submitted.

When presentment occurs is important to determine the specific time limits in § 473.050.3 for proving a will and issuing a certificate of probate. If presentment was timely, the will may be proven and administration granted on the will at any time after it was presented. Section 473.070.1, RSMo 1994's limit of one year for requesting administration after the testator’s death has been eliminated. This one year time limit caused problems when no assets subject to probate were known to exist until more thn one year after the testator’s death. In addition, if one year had passed after a testator’s death, an ancillary administration for a non-Missouri resident was not possible, even if the will had been admitted in the domiciliary state and administration was still in process.

For presentment of the will to be timely, one of the following deadlines must be met:¹⁴

1. If notice of the issuance of letters has been published, the will must be presented within six months after the date of the first publication of the notice of the issuance of letters, or within 30 days after the commencement of an action to establish or contest a will, whichever occurs later;

2. If notice of the issuance of letters has not been published, the will must be presented within one year after the testator’s death; or

3. If the will has been admitted to probate in any state, territory or district of the United States other than Missouri, the will must be presented in Missouri during the administration of the decedent’s domiciliary estate.

As a practical matter, if a decedent dies testate, the decedent’s will should be promptly admitted to probate, even if no probate administration is contemplated. This preserves the right to commence administration on the will if assets subject to probate are later discovered. This is especially important if the will provides for a distribution which differs from the distribution which would occur under Missouri’s intestate succession statute.¹⁵

Intestate Decedents. For decedents who die intestate, letters of administration must still be issued within one year of the decedent’s death, unless the exception in § 537.021, RSMo 1994, applies.¹⁶ If the decedent died intestate, any action to establish an interest in the estate by descent must be filed by the end of the 20-day objection period for a final settlement¹⁷ or a statement of account.¹⁸

One of the principal purposes of probate is to provide a method for determination and payment of the decedent’s debts. Prior to the enactment of the bill, if a probate estate was not opened creditors often found the costs of compelling administration exceeded the amount of the debt. Even if an estate was opened, if the creditor received notice of the administration, it might only be shortly before the six-month non-claims period ran. The bill addressed both of these concerns.

Changes in Compelling Administration. Under prior law, an interested person who wanted to compel the administration of a decedent’s estate had to determine if the decedent died testate, determine who was entitled to serve as personal representative, and apply for admission of any will to probate.¹⁹ Creditors had additional hurdles to clear: It was unclear whether they qualified as an interested person (and thus eligible to file a petition to compel administration) before their claim was filed, claims could not be filed until letters were issued, and some probate divisions required the creditor to prove the claim as part of the process of compelling administration. Further, the statute was ambiguous as to whether the hearing on the petition had to be held within 15 days after the petition was filed or simply that the date of the hearing must be set within 15 days after the petition was filed.

The procedure to compel administration has been simplified. In its comments on the changes it proposed to the Probate Code, the Probate Code Subcommittee of The Missouri Bar Probate & Trust Law Committee ("Probate Code subcommittee") stated the purpose of the changes was to make it economically feasible for a creditor with a modest claim to compel the opening of an estate.

An interested person now need only petition the probate division for the issuance of letters testamentary or of administration. The information required in the petition has been reduced so only information reasonably available to an interested person must be included: (1) the decedent’s name, last residence address, and date of death,²⁰ (2) "the names nd addresses of the personal representatives designated" in any wills presented to the probate division,²¹ and (3) "[t]he names, addresses and relationships to the decedent of the decedent’s heirs" known to, or reasonably ascertainable by, the petitioner.²² The Probate Code subcommittee’s comments state the intent is that once a creditor files a petition to compel administration, the creditor is not required to do anything else for the estate to be opened.²³ To resolve any uncertainty about a creditor’s standing to compel administration, § 473.020.1 specifically provides that a creditor who files a petition and attaches a claim supported by an affidavit establishing the basis for the claim is an interested person. In addition, § 473.020.3 clarifies that the date for hearing the petition must only be set within 15 days from the date of filing of the petition and need not be held within 15 days.

Non-claim statute changes. A personal representative attempting to comply with the actual notice requirement of Pope did not have statutory authority to give actual notice to a creditor to cut off the creditor’s claim after the six-month period. Some believed that giving notice without statutory authority to provide it would not cure the due process defect.²⁴ To cure this potential problem, § 473.033 now provides "[t]he personal representative may, but is not required to, send a copy of the [published] notice by ordinary mail or personal service to any creditor of the decedent whose claim has not been paid, allowed, or disallowed. . . ." (emphasis added).²⁵ In contrast, the Pope decision appears to require the personal representative to provide notice to known or reasonably ascertainable creditors for the six-month non-claim period to apply. To give creditors time to file their claims, § 473.360 provides that creditors who receive actual notice by mail or service that letters testamentary have been issued may file their claim with the probate division within two months of the time the notice was given, if this period extends beyond the non-claim period. Regardless of when notice is received, however, a claim filed more than one year after the decedent’s death is barred by § 473.444, RSMo 1994. For personal representatives and their attorneys, this can present a dilemma if the personal representative learns of a creditor within two months of the end of the non-claims period: Should the creditor be given actual notice, extending the non-claims period and possibly increasing the likelihood a claim will be filed, or should the personal representative not provide the creditor with actual notice with the hope of preserving, for the decedent’s heirs or legatees, the estate’s assets which would be required to pay the creditor’s claim? Other factors which would enter into the decision will be the amount of time before the one-year limitation applies, the basis for the claim, the amount of the claim, and the relationship between the heirs or legatees and the creditor.

Other Changes Affecting Creditors. Section 473.360.2, RSMo 1994, barred recovery under actions filed or revived under either §§ 473.363²⁶ or 473.367²⁷ unless written notice is filed in the probate division during the non-claims period. Section 473.360.2 now specifically provides that filing a claim within six months after the first publication is sufficient to satisfy the written notice requirement, regardless of whether the claim is filed before or after the institution or revival of the action.

Simplified administration procedures are available if the decedent’s assets subject to probate do not exceed certain amounts. This permits the probate assets to be transferred without a full probate administration. These procedures are often useful when only a few of a decedent’s assets, such as a checking account or a car, are subject to probate.

Small estate affidavit changes. A small estate affidavit can be used to provide for the distribution of the estate to the heirs or legatees if the vale of the estate, less liens and encumbrances, is less than $40,000.²⁸

In 1994, as part of the changes to the Probate Code increasing the size of estates qualifying for the small estate affidavit from $15,000 to $40,000, the General Assembly began requiring estates with assets in excess of $15,000 to publish a notice to creditors that the estate was opened. The statutory notice stated a one-month non-claims period for estates subject to the small estate affidavit. Because of concerns this period was not otherwise authorized by statute and was possibly unconstitutional under Pope,²⁹ § 473.097.5 changed the notice to reference the one-year bar under § 473.444, RSMo 1994.

If a small estate affidavit is filed, a separate application to admit the will to probate is no longer required for testate decedents. If the decedent left a will, the small estate affidavit application must state that the will was presented for probate within the one-year period.³⁰ Section 473.097 permits a small estate affidavit to be obtained more than one year after the decedent’s death. In addition, a small estate affidavit can be granted if a refusal of letters was granted and subsequently revoked. Thus, a full administration is no longer required when a creditor’s refusal of letters is granted and assets are subsequently discovered which exceed the $15,000 limit for a creditor’s refusal of letters but do not exceed the $40,000 limit for a small estate affidavit.

Section 473.097.2(5), RSMo 1994, required that the persons entitled to the property under the decedent’s will or by intestate succession be listed in the affidavit. This meant that persons who were not entitled to specifically bequeathed property would be listed on the affidavit and often created confusion and problems when the affiant attempted to transfer ownership of the property to the proper person. Section 473.097.2(5) now provides the specific property included in the affidavit left after paying claims and the decedent’s debts must be shown on the affidavit, along with the persons entitled to receive the property subject to the affidavit.

If property subject to a small estate affidavit cannot easily be divided in kind and it is not to the distributees’ benefit that it be sold, § 473.097.7, RSMo 1994, required the majority of the distributees to apply to the court for the designation of a collector who would collect the property and distribute it to the persons entitled to receive it. Section 473.097.7 authorizes the affiant to collect the property and liquidate it to the extent necessary to pay the decedent’s debts or to facilitate distribution. The affiant must distribute the property remaining after payment of debts and claims to the persons identified in the affidavit to receive the property or evidence (such as titles or certificates of ownership) of the property. This avoids the problems which can arise if a large number of heirs or legatees exist or if the heirs or legatees have a hard time working together.

Refusals of letters. Creditor’s and spousal refusals of letters under § 473.090.1 provide simplified methods for persons entitled to some or all of the decedent’s assets to obtain the assets without even filing a small estate affidavit. Section 473.090.1 now specifically provides that a refusal of letters can be issued more than one year after the decedent’s death. Creditors can use a refusal of letters to obtain title to the decedent’s assets to satisfy either debts of the decedent or of the decedent’s estate. Often these debts are the decedent’s final medical expenses or the funeral bills and the creditor is the decedent’s spouse or other family member who paid the expenses. Under § 473.090.1, RSMo 1994, it was unclear if the decedent’s creditors or only the estate’s creditors were entitled to obtain a creditor’s refusal. The section now specifically provides that a creditor of the decedent may apply for the creditor’s refusal of letters, if the creditor’s claim is not barred by the one-year period under § 473.444. To reflect inflation, the maximum amount of an estate which can qualify for a creditor’s refusal was increased to $15,000.³¹

Similarly, if the estate’s value does not exceed the value of the exempt property and the support allowance, the decedent’s spouse or minor children can use a refusal of letters to obtain the assets. Under § 474.260, children who were dependent on the decedent are now entitled to a support allowance. Unfortunately, § 473.090.1, RSMo 1994, was not changed to permit these children to file an application for a refusal of letters to obtain the decedent’s assets.

Conversion to a simpler procedure. Section 473.092 permits the probate court to convert a pending estate to a simpler proceeding if it finds the estate could originally have been filed under the simpler procedure. Thus, a full estate administration can be converted to either a small estate or a refusal of letters, and a small estate converted to a refusal of letters. This can occur in numerous ways, including (1) the assets of the estate may have been overvalued on the petition, (2) property believed to be probate assets may be found to have been owned with a surviving joint tenant or to have a beneficiary designation under the Missouri Non-Probate Transfers Act, and (3) the probate property may be subsequently found to be subject to a mortgage or other encumbrance. The court may act either on its own motion or the motion of anyone entitled to apply for either a refusal of letters or small estate affidavit and may proceed without notice to any interested party. Many probate courts have handled this informally, by consulting with the attorney if a simpler procedure appears appropriate based on the petition filed and recommending the use of the simpler procedure. Under this provision, even if the initial proceeding used was proper, subsequent events or new information (such as the settlement of a lawsuit which was an asset of the estate for substantially less than expected or the discovery of a substantial mortgage) can result in the conversion to a simpler proceeding.

As a result of this change, § 473.093, RSMo 1994 — permitting the probate court, after letters testamentary are issued, the notice of letters was published and the inventory was filed, to order the entire estate distributed to the surviving spouse or unmarried minor children if the estate’s value did not exceed the amount to which they are entitled by law³² — was repealed.

Payment of claims filed without notice to or served on the personal representative. Section 473.433, RSMo 1994, requires claims to be served upon the personal representative in addition to being filed with the probate division. In addition, the probate division must send a copy of the claim to the personal representative. Personal representatives often pay claims forwarded to them by the probate division although the claimant did not serve them with a copy of the claim. To protect personal representatives from liability for paying an otherwise valid claim not served on them, § 473.433.5 provides that a claim filed with the court or acknowledged by the personal representative to be a just claim is not barred because it was not timely served on the personal representative.

Voucher requirement. In decedent’s estates subject to supervised administration and conservatorship estates, § 473.543, RSMo 1994, required each expenditure, regardless of amount, to be supported by a voucher. If a personal representative or conservator did not have a voucher for an expenditure, regardless of amount or purpose, the court might require repayment to the estate. To alleviate this problem, § 473.543 only requires vouchers when the expenditure exceeds $75. The court has discretion to require vouchers for expenditures under this amount. While vouchers may generally not be required, the wisest course for personal representatives and conservators is to continue to obtain and file vouchers for all payments, regardless of amount, with settlements. This will avoid problems if the court requires a voucher for a particular expense or an interested person questions an expenditure.

Distributions to attorneys-in-fact. Secion 473.657 no longer requires that distributions to attorneys-in-fact could be made only if the power of attorney was authenticated.

Simplification of determination of heirship proceedings. Under § 473.663, RSMo 1994, a determination of heirship proceeding could be used to determine the persons entitled to a decedent’s property if no probate administration was commenced within one year and no will was offered for probate in Missouri within one year. (If the decedent’s will was admitted to probate but no administration was commenced, § 473.260, RSMo 1994, providing that the decedent’s real and personal property, except exempt property, descends to the persons specified in the decedent’s will, would have applied.) Sections 473.050, RSMo 1994, and 473.663, RSMo 1994, were inconsistent on when a determination of heirship proceeding could be commenced and when administration was required.³³ Section 473.663 clarifies that a determination of heirship proceeding cannot be filed if the decedent’s will was timely presented. Under § 473.663, RSMo 1994, the petition for a determination of heirship had to state all items required by the statute to be included in the petition, including the residence addresses of all heirs. The petitioner was sometimes faced with a considerable burden to determine the required information. The burden of obtaining this information increases as the years since the decedent death increases and the degree of relationship between the petitioner and the decedent decreases. Section 473.663 now requires the petitioner to include information only known or which can be ascertained with reasonable diligence by the petitioner, such as the names of the decedent’s heirs, any persons who have an interest in the decedent’s property through an heir of the decedent who died after the decedent, a determination of the property for which the determination is sought, and the property’s value.

In addition, if an heir died after the decedent’s death and the time for administration of the heir’s estate had expired, a separate determination of heirship proceeding for the heir’s interest was required. The court will now have the information available to determine the proper distribution of the heir’s interest in the property.

Independent administration changes. Section 473.153, RSMo 1994, specifically provides that the minimum fee schedule for personal representatives and their attorneys in supervised administrations is a reasonable fee for the work done in the estate. In contrast, for independently administered estates, § 473.823, RSMo 1994, provided the fee schedule was only "prima facie evidence of reasonable compensation." In an attempt to provide consistency between supervised and independent administration, § 473.823.1 provides that the fee schedule in § 473.153, RSMo 1994, shall be considered a minimum fee for the independent personal representative’s services. Section 473.823.3, RSMo 1994, governing the fees for attorneys representing independent personal representatives, was not amended.

Section 473.840.3 RSMo 1994, provided that if objections to the statement of account were filed within 20 days of the filing of the statement of account, the distributions shown on the proposed schedule of distributions could not be made until the objections were heard and the proper distribution ordered by the court. If no objections were filed within the 20 days, the distribution could be made but objections to the independent personal representative’s conduct of the estate could still be filed within one year after the statement of account was filed. Section 473.840.6 shortens the time to file objections to six months.³⁴

Exempt property. Section 474.250 now specifically states a pickup truck is a passenger vehicle for purposes of determining the decedent’s exempt property. Evidently some probate judges did not treat a pickup truck as a passenger vehicle.

One year support allowance. The purpose of the support allowance is t provide money from the estate for the surviving spouse and any dependent children during the administration of the estate. Because non-probate transfers such as revocable living trusts, transfer on death designations, payable on death accounts, and beneficiary deeds have become common, the need for support from probate assets has been reduced. At the same time, parents often provide financial support to children for education or other purposes long after a child becomes 18. These changes have caused the General Assembly to modify the determination of the support allowance and the persons entitled to receive the allowance to reflect these changes. Prior to the Probate Code changes in 1980, the court was to consider only the surviving spouse’s previous standard of living and the condition of the deceased spouse’s estate. If the surviving spouse or minor children received significant amounts upon the decedent’s death (from life insurance, joint accounts, or otherwise) but were not the residuary beneficiaries, this allowed them to increase their portion of the estate to the detriment of the residuary beneficiaries.

The factors the probate court was to consider in determining the amount of the support allowance were unclear. Section 474.260, RSMo 1994, instructed the court to consider the "aggregate value of all money and property passing to the surviving spouse or unmarried minor children by means described in section 474.163." Section 474.163 , RSMo 1994, describes ways a spouse can receive property from the decedent without the property being included in the decedent’s estate. These include beneficial interests in trusts,³⁵ "property appointed to the spouse by the decedent’s exercise of [either] a general or special power of appointment" which could have been exercised in favor of someone other than the spouse,³⁶ insurance proceeds,³⁷ and amounts received by the spouse as a cotenant or remainderman (except to the extent derived from contributions made by the spouse or the spouse’s relatives other than the decedent).³⁸

Section 474.260, RSMo 1994, provided for a reasonable support allowance for the surviving spouse or, if none, the decedent’s unmarried minor children. Recognizing the realities of family life and estate planning today, § 474.260 significantly expands the provisions concerning the support allowance. In addition to the surviving spouse, the allowance now covers minor children (regardless of marital status) whom the decedent is obligated to support and adult children whom the decedent was actually supporting. Under § 474.260, RSMo 1994, the allowance was payable to the surviving spouse unless the court ordered it divided between the surviving spouse and the unmarried minor children. The support allowance is now payable to the surviving spouse for the use of the spouse and children, otherwise to the children or the person caring for them. If a minor or dependent child is not living with the surviving spouse, the allowance can be divided between the spouse and the child, the child’s guardian, or the person caring for the child, based on their needs. This provision allows the court to consider the needs of the surviving spouse and those children actually dependent on the decedent (including children from multiple marriages) in determining the support allowance.

Rather than being required to consider property passing by means described in § 474.163, RSMo 1994, under § 474.260, the court may con-sider the applicant’s previous standard of living, the condition of the estate, the income and other assets available to the applicant, and the applicant’s expenses in setting the amount of the support allowance. Although the section states the court "may" consider such factors, probate judges may feel compelled to consider these factors. Thus, if the surviving spouse or minor children have sufficient other resources to provide for their support, no support allowance should be ordered.

Homestead allowance. The homestead allowance under § 474.290 was doubled to $15,000.

New Missouri Prudent Investors’ Act applies to independently administered estates. The Missouri Prudent Investors’ Act³⁹ (the "act") apples to actions taken by independent personal representatives as well as to trustees. Any investment decision taken by an independent personal representative after August 28, 1996 must comply with the terms of the act or the terms of the decedent’s will, if the will provides it supersedes the act. Although the specific provisions of the act are beyond the scope of this article, independent personal representatives must be advised of their responsibilities under the act. One result of the act’s applicability to independently administered estates may be to allow independent personal representatives more flexibility in investing the estate’s excess assets.⁴⁰ The act allows settlers to expand or restrict the prudent investor rule by express provisions in the trust agreement.⁴¹ Similar provisions in a will which provides for independent administration should be given the same effect. The act spells nine specific factors to be considered in investing and managing trust assets. Plaintiffs’ attorneys can be expected to use these factors and the other provisions of the act as a guide in determining whether an independent personal representative or trustee was negligent in investing assets held in their fiduciary capacity.

The public’s expectation is that the property of an intestate decedent goes to the decedent’s spouse, if any, or is shared by the spouse and the decedent’s children. The provisions of Missouri’s prior intestate succession law⁴² were a surprise to clients, especially married clients without children. The possibility that their parents would receive almost half of their estate if they did not have a will almost never entered their mind. Almost as surprising was the treatment of a decedent’s nieces and nephews as heirs in their own right, even if all of the decedent’s brothers and sisters were alive at the decedent’s death. Under § 474.010, Missouri’s intestate succession provisions now more closely conform to the public’s expectations.

Section 474.010.1 eliminated the interest of the decedent’s parents unless the decedent is not survived by a spouse or issue. In addition, nieces and nephews no longer automatically receive an interest in the decedent’s estate. Instead, under § 474.010(2)(b), they step into their parent’s shoes if their parent predeceased the decedent.⁴³ If the decedent is not survived by any relatives, § 474.010.3 provides that the decedent’s estate is divided into equal shares for each of the decedent’s predeceased spouses and divided among the predeceased spouse’s relatives.

The changes to the Missouri Probate Code made by Senate Bill 494 represent a significant improvement and simplification to the code. The General Assembly clarified the requirements for presentment of a will and liberalized the time for commencement of administration if a will is timely presented. The procedures for compelling administration and determination of heirship have been simplified considerably. More flexibility has been introduced in allowing the conversion to a simpler procedure if the estate could originally have been filed under the procedure. Providing statutory authority for a personal representative to give actual notice to creditors and providing that creditors who receive actual notice have at least two months to file their claims should considerably reduce the possibility that a due process challenge to the non-claims statute would prevail. Estate administration was simplified by eliminating the voucher requirement for payments under $75. Finally, the intestate succession provisions now conform more closely to the public’s expectations.

1 References to Probate Code sections as amended by Senate Bill No. 494 will include only the section number. References to sections prior to their amendment by Senate Bill No. 494 or which were not amended will include the section number and RSMo 1994. Thus, a referenceto "section 473.050" refers to the section as amended and a reference to "section 473.050, RSMo 1994" refers to the section prior to amendment.

2 108 S.Ct. 1340 (1988).

3 Section 473.360, RSMo 1994. The Oklahoma statute required publication of a notice to creditors for two consecutive weeks, compared to Missouri’s four consecutive week publication requirement, and required the claims to be filed within two months from the first publication.

4 These concerns were well-placed. The Oklahoma Supreme Court, in upholding the validity of the Oklahoma non-claims statute, relied upon a Missouri case, Estate of Busch v. Ferrell-Duncan Clinic, 700 S.W.2d 86 (Mo. banc 1985), to find the Oklahoma non-claims statute was a self-executing statute of limitations and that publication notice was sufficient. In Pope, the Supreme Court specifically rejected this argument. Pope, 108 S.Ct. at 1345.

5 Section 473.050, RSMo 1994.

6 Section 473.070, RSMo 1994.

7 The will had to be presented within six months from the date of first publication of the notice of granting of letters testamentary or of administration, or within 30 days of the filing of a will contest, whichever occurred later.

8 Section 473.010, RSMo 1994, provides venue is proper for the estate of a Missouri resident in the county in which the decedent was domiciled. For a nonresident who owned property with a Missouri situs, venue is proper in any county where the decedent owned any property, unless a major part of the Missouri estate is real property. In that situation, venue is proper in the county in which the real estate or a major part thereof is located. If the decedent had no domicile in the state and no property in the state, venue is proper in any county in which administration of the estate is required to protect or secure any legal rights.

9 Section 473.050.2(1).

10 Section 473.097.

11 Section 473.050.2(2)(a).

12 Section 473.050.2(2)(b).

13 Section 473.050.2(2)(c).

14 Section 473.050.3.

15 Section 474.010.

16 Section 473.050.6. The exception in § 537.021 allows appointment of a personal representative more than one year after the decedent’s death to maintain an action for lost chance of recovery or survival.

17 Section 473.590, RSMo 1994.

18 Section 473.840.

19 Section 473.020.2.

20 Section 473.020.2(1).

21 Section 473.020.2(2).

22 Section 473.020.2(3).

23 Probate & Trust Committee Probate Code Revisions at 7.

24 See Probate & Trust Committee Probate Code Revisions at 9.

25 Section 473.033.

26 Section 473.363, RSMo 1994, provides that an action pending against the decedent which survives the decedent’s death is considered a claim against the estate from the time substitution of the personal representative (or a motion for substitution) is made and written notice is filed in the probate division.

27 Section 473.367, RSMo 1994, provides that an action commenced against a personal representative after a decedent’s death is considered a claim against the estate from the time of service on the personal representative and filing of a written notice of the institution of the action in the probate division within the time provided in § 473.360.

28 Section 473.097.

29 See Probate & Trust Committee Probate Code Revisions 26. The one-month limitation period was found to violate due process by the Supreme Court of Missouri in Estate of Bohannon, 943 S.W.2d 651 (Mo. banc 1997).

30 Section 473.097.2(1).

31 Section 473.090.1.

32 This amount consisted of the exempt property under § 474.250, RSMo 1994, the support allowance under § 474.260, RSMo 1994, and the homestead allowance under § 474.290, RSMo 1994.

33 Section 473.050, RSMo 1994, provided that a will could not be proven or a certificate of probate issued unless the will was presented within six months of the first publication of notice of letters or within 30 days from the commencement of a will contest, whichever was later. Section 473.663, RSMo 1994, provided that a determination of heirship proceeding could not be used unless no administration was commenced or any will offered for probate within one year after death. It was possible for a will to be offered more than six months after the first publication but less than ne year after death, denying the heirs the benefit of either section procedure.

34 Section 473.840.6.

35 Section 474.163.2(1), RSMo 1994.

36 Section 474.163.2(2), RSMo 1994.

37 Section 474.163.2(3), RSMo 1994.

38 Section 474.163.3, RSMo 1994.

39 HB 1432, 88th Leg., 2d Reg. Sess. (Mo. 1996).

40 Section 473.810(4), RSMo 1994, authorizes an independent personal representative to invest excess funds in "federally insured interest-bearing accounts, readily marketable secured loan arrangements, or other prudent investments which would be reasonable for use by trustees generally." By providing guidance on what prudent investments are reasonable for use by trustees and how prudence is determined, an independent personal representative may have more flexibility in investing the estate’s excess funds.

41 HB 1432, 88th Leg., 2d Reg. Sess. (Mo. 1996), § 456.901.2.

42 Section 474.010, RSMo 1994, provided the following order of distribution:

1. The surviving spouse would receive:

a. The entire estate if the decedent was not survived by issue or either parent;

b. The first $20,000 in value of the estate, plus half of the balance if the decedent was survived either by issue, at least one of whom was issue of the surviving spouse or parents; or

c. One-half of the estate if the decedent was survived by issue, at least one of whom was not issue of the surviving spouse;

2. The part of the estate not distributable to the surviving spouse, or all of the estate if no surviving spouse, would be distributed as follows:

a. To the decedent’s children, or their descendants, in equal parts;

b. If no children or descendants, to the decedent’s father, mother, brothers, sisters, and their descendants, in equal parts;

c. If none, to the decedent’s grandfathers, grandmothers, aunts, uncles and their descendants, in equal parts;

d. If none, to the decedent’s great-grandparents and their descendants, examining each preceding generation and its descendants in turn;

3. If no heirs are found, to the heirs of the decedent’s spouse.

43 A similar change was made to § 474.010(2)(c), providing that the descendants’ cousins will inherit only if the cousin’s parent predeceased the decedent.

© 1997, Bruce A. Tannahill