Chapter 6 SMALL-ESTATE PROCEDURES

• Jurisdiction: Missouri

Chapter 6

Small-Estate Procedures

A. Introduction

B. Effect of Debt

C. Requirements

1. Absence of Pending Application

2. Bond

3. Fee

4. Notice

a. Estates Exceeding $15,000

b. Estates of $15,000 or Less

D. Affidavit

E. Duty of Third Parties

F. Time for Filing

G. Distribution of Property

H. Creditor Claims and the Missouri Department of Social Services

A. Introduction

Sections 473.097 and 473.100, RSMo 2016, are based on the theory that when an estate is small—not more than either $15,000, § 473.090.2, RSMo 2016, or $40,000, § 473.097.1(1)—the decedent’s family or a creditor should have a way of collecting the estate assets without administration.

Accordingly, § 473.097.1 provides that the distributees of a small estate have a defeasible right to the decedent’s personal property and are entitled to the decedent’s real property without awaiting the grant of letters testamentary or of administration if certain conditions are met. Section 472.010(9), RSMo 2016, defines “[d]istributee” as “persons who are entitled to the real and personal property of a decedent under his will, under the statutes of intestate succession or who take as surviving spouse under section 474.160, upon election to take against the will.” Either a surviving spouse or children who could apply for a refusal of letters under § 473.090 qualify as distributees and can also proceed under § 473.097 unless an application for letters or refusal of letters is pending or has been granted. Because the small-estate procedures require distributees to pay the decedent’s debts, § 473.097.2(2), a surviving spouse or covered children will generally be better served by the refusal-of-letters procedure. But if the total value of the exempt property and family allowance is less than $40,000 and the decedent had no debts, the small-estate procedure should be kept in mind as an alternative. Furthermore, if an intestate decedent is survived by a spouse and issue, all of whom are also issue of the surviving spouse, under § 474.010(1)(b), RSMo 2016, the surviving spouse would be entitled to the entire small estate if it did not exceed $20,000. The distributees who most frequently use the small-estate procedure are members of the decedent’s family other than the spouse or covered children—i.e., adult children, other relatives, and other distributees.

In addition to family members, many courts will permit an unrelated attorney to become the affiant in a small-estate procedure. In some courts, the trustee of a pourover trust can also use the procedure if assets remain that have not been transferred to the trust during the grantor’s lifetime. In these cases, the small-estate procedure may provide a simple means for probate and pouring over assets if those assets do not exceed the statutory limit for small estates. Section 473.090.2.

B. Effect of Debt

In 2002, the word “debt” was added to the definition of estates under $40,000, § 473.097, reformulating the manner of calculating the $40,000 limit on the estate. The inclusion of this word allows estates over $40,000 to also be eligible for the procedure if debt decreases the total value of the estate to under $40,000. Because the actual structural change to the statute is nominal but the implications are large, there is relatively little standardization on the interpretation of the change from circuit to circuit. But counsel should assume that, when they are seeking a small-estate affidavit for assets over $40,000 because of offset by debts, they will be expected to provide substantial information regarding the claims, including bills or receipts for the claims, as well as an agreement in the affidavit by the small-estate affiant that the debts will be paid before distribution.

C. Requirements

In addition to the requirement that the net estate not exceed $40,000, there are three other conditions.

1. Absence of Pending Application

First, § 473.097.1(2) specifies that 30 days must have elapsed since the decedent’s death and “no application for letters or for administration or for refusal of letters . . . is pending or has been granted, or if such refusal has been granted and subsequently revoked.” Although the intent is apparent, the wording is confusing. Parsed, the sentence reads: “[N]o application for letters . . . or for refusal . . . has been granted, or if such refusal has been granted and subsequently revoked.” In this sense, it could be argued that the small-estate procedure is not available even if a prior refusal has been revoked.

2. Bond

Second, under § 473.097.1(3), a bond in an amount of not less than the value of the personal property is to be filed by the person making the affidavit described below. The bond is to be conditioned on:

• payment of the...