Section 5.30 Parties, Pleadings, Evidence, and Judgment

LibraryEstate Administration 2014 Supp

B. (§5.30) Parties, Pleadings, Evidence, and Judgment

A discovery of assets proceeding is initiated by filing a verified petition in the probate division in which the estate is pending. Section 473.340.1, RSMo 2000. The petition should describe the real or personal property in question, the nature of the petitioner’s interest, and the fact that title or possession, or both, is being adversely claimed or withheld. Id. Once the petition is filed, the court may order the joinder of other persons, including the personal representative, whose presence is required for a “complete determination of the issues,” including any person who has possession of or who may claim an interest in the property. Section 473.340.4.

Discovery of assets proceedings are governed by the Missouri Rules of Civil Procedure, and any party to the action may demand a jury trial. Section 473.340.2. Before the Supreme Court’s decision in Estate of Williams v. Williams, 12 S.W.3d 302 (Mo. banc 2000), the Southern District held in Robertson v. Robertson, 15 S.W.3d 407, 420 (Mo. App. S.D. 2000), that the probate division and other divisions of the circuit court have concurrent jurisdiction in discovery of assets proceedings. This statement appears to be based on the court’s reading of the Supreme Court’s opinion in Jarman v. Eisenhauer, 744 S.W.2d 780 (Mo. banc 1988), which found concurrent jurisdiction in the probate and other divisions over declaratory judgment proceedings. But even after the Supreme Court’s statement in Williams that the “probate division of the circuit court has original and exclusive jurisdiction over a proceeding to discover assets pursuant to sec. 473.340,” Williams, 12 S.W.3d at 305, the Western District indicated otherwise in Ryan ex rel. Estate of Reece v. Reece, 31 S.W.3d 82 (Mo. App. W.D. 2000). Counsel should exercise caution in relying on the lower court’s determination concerning concurrent jurisdiction without further clarification from the state’s high court.

In addition to confronting the issue of whether the probate division has exclusive or concurrent jurisdiction over a discovery of assets proceeding, counsel should determine whether a claim is properly characterized as a discovery of assets action. State ex rel. Knight v. Harman, 961 S.W.2d 951 (Mo. App. W.D. 1998), contains a discussion that is very helpful in this regard.

Section 473.340.4 provides that the court shall order the joinder of the personal representative of the decedent’s estate if the...

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