Section 2.6 Small-Estate Procedures

• Library: Estate Administration 2014 Supp

VI. (§2.6) Small-Estate Procedures

Section 473.097, RSMo Supp. 2008, and § 473.100, RSMo 2000, are based on the theory that when an estate is small—not more than either $15,000, § 473.090.2, RSMo 2000, or $40,000, § 473.097.1(1)—the family of a decedent 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 2000, 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, RSMo, 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 2000, 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 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 even for clients with large, complex estate plans. Section 473.090.2.

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 allowed estates over $40,000 to also be eligible for the procedure if debt decreased 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. See, e.g., St. Louis County Probate Division unpublished local rule per memorandum April 24, 2003. For information about the rule, call the St. Louis County Probate Division, Issue Department, at (314) 615-2612.

In addition to the requirement that the net estate not exceed $40,000, there are three other conditions. 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.” Id. Although the intent is apparent, the wording is confusing. Parsed, the sentence reads: “[N]o application for letters . . . or for refusal . . . has been granted...