Law News and Tips

Filing a Will

Fred Vilbig - Thursday, January 31, 2019

Filing a Will

Fred L. Vilbig © 2019

     Mary’s husband Joe died over a year ago. They had a simple estate. Everything was owned jointly. They had done some estate planning by signing “I-Love-You” wills, durable powers-of-attorney, and medical directives. An “I-Love-You” will is one that says everything goes to the surviving spouse, but if they’re not alive, then everything gets divided equally among the kids and distributed outright. Nothing fancy, but it covers the bases.

     Since everything was held jointly, Mary didn’t bother to file the will with the Probate Court. She didn’t think it was necessary. Although it’s not important to our story, the law does say that if you have a decedent’s will, you are supposed to file it. If you don’t, the court can order you to file it. It’s kind of serious business. Now back to our story. As I said, Mary didn’t file the will.

     Time passed. Mary had a hard time going through Joe’s stuff. They had been married for a long time, and Mary missed him terribly. But after almost 2 years, she started going through all of his papers to sort through them and throw out things she didn’t need or want. And as sometimes happens, she found an old life insurance policy. Joe had been in the military before they had married, and he had taken out a paid-up life insurance policy. He named his parents as the beneficiaries, but they had died a long time ago. There wasn’t a backup beneficiary, so the life insurance proceeds would have to be paid to Joe’s probate estate. But that was the problem.

     Since Mary didn’t file Joe’s will within a year of his death, the will could not be filed. To be valid in Missouri, a will must be filed within a year of a person’s death. In addition, without a filed a will, you can only open an intestate estate (an estate without a will) within one year of the person’s death. So even though Mary had Joe’s will and the insurance proceeds were payable to Joe’s “estate,” Mary couldn’t get to the insurance proceeds … at least not that way. So what to do?

     When a person has been dead for over a year and no will was filed, in order to “probate” a decedent’s assets, you have to petition the court for a determination of heirship. To determine heirship, you have to petition the court to determine who are the heirs entitled to the assets. It’s a little more involved than probate in some ways, and it requires a hearing with a court appearance. Most people dread court appearances for some reason.

     So for Mary, we had to proceed with a determination of heirship. Not the worst thing, but then I won’t be the one on the witness stand.

     The moral of the story is that if a person dies with a will, you need to file the will with the Probate Court. If you discover an asset more than a year after their death, you can probate it. Believe it or not, under these circumstances, probate is probably the preferred solution. Who’d of thunk it?

Contact Fred now about your situation. The first consultation is free. Or call him now at (314) 241-3963

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