Section 3.14 Probate of Will and Application for Letters Testamentary

• Library: Estate Administration 2014 Supp

H. (§3.14) Probate of Will and Application for Letters Testamentary

After the death of a testator, the person having custody of the will is required to deliver it (as well as any codicils and lists disposing of tangible personal property under § 474.333, RSMo 2000) to the probate division of the circuit court that has jurisdiction of the estate or to the probate division of the circuit court of the county where the will was found. Section 473.043.1, RSMo 2000. If the latter is done, the court will keep a copy and deliver the original will, by certified mail, to the probate division of the circuit court that has jurisdiction of the estate. Id. Wills of decedents found in safe deposit boxes are in the custody of the depository, and the depository may make a copy before delivering it to the court. Section 473.043.2. If the probate division of the circuit court is satisfactorily informed that any person has possession of the will of any testator and refuses to produce it, the court may summon the person and compel the person by attachment and commitment to produce the will. Section 473.043.3.

It is believed by some that a will located in a safe deposit box cannot be obtained except by citation to produce the will; however, most financial institutions are very cooperative in conducting a will search and will open the box in the presence of a bank officer and next of kin for the purpose of removing the will. If a will is found, the financial institution will deliver it to the probate court and then seal the box until the personal representative presents letters of appointment to the financial institution.

The jurisdiction of the court attaches when the will is presented to the court by a proper petition by some person entitled to take the action. State ex rel. Shriners’ Hosps. for Crippled Children v. Hensley, 385 S.W.2d 820 (Mo. App. E.D. 1964). “When any will is exhibited to be proven the judge or clerk may immediately receive the proof and grant a certificate of probate, or, if the will is rejected, grant a certificate of rejection.” Section 473.047, RSMo 2000. See Hawkins v. Lemasters, 200 S.W.3d 57 (Mo. App. W.D. 2006), for a recent case on presentment.

For a will to be effective, it must be presented for and admitted to probate within one year of the decedent’s death. Section 473.050, RSMo 2000. Once admitted to probate, the will may be administered at any future time. Section 473.050.4. The section has the effect of tolling the one-year limitation for commencement of administration of a will. Section 473.050.2 defines presentment as:

(1) Either the delivery of a will of a decedent, if such will has not previously been delivered, to the probate division of the circuit court which would be the proper venue for the administration of the estate of such decedent, or the delivery of a verified statement to such court, if the will of such decedent is lost, destroyed,

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