Section 6.3 Right to Possession of Property

• Library: Estate Administration 2014 Supp

B. (§6.3) Right to Possession of Property

Some discussion of basic concepts relating to the title and right of possession of real and personal property of a decedent by the decedent’s devisees, heirs, executors, and administrators is appropriate before considering more detailed statutory requirements. In Missouri, upon the decedent’s death, title to both real and personal property (other than exempt property) immediately passes to the decedent’s devisees (testate) or the decedent’s heirs (intestate). Section 473.260, RSMo 2000. See Wood v. Hudson, 823 S.W.2d 158 (Mo. App. E.D. 1992) (a decedent can hold no property; legal title to personal property passes primarily to the executor or administrator of the decedent’s estate, from whom heirs or legatees receive it through the process of administration; title to a decedent’s real property, whether testate or intestate, vests directly in the heirs). But there are exceptions to the statute and caselaw regarding the decedent’s real estate:

A personal representative may take possession of a decedent’s real estate when necessary to pay claims or to preserve the property. Section 473.263.2, RSMo 2000.

If the will is contested, an appointed administrator will be directed to take charge of any real estate included in the decedent’s estate until the will contest is terminated. Section 473.137.3, RSMo 2000.

“Except as otherwise provided by a decedent’s will, every independent personal representative has a right to, and shall take possession or control of, the decedent’s property.” In this instance, the property can be surrendered to or left with the person presumptively entitled to it. Section 473.803, RSMo 2000.

If a decedent’s will directs the sale of real estate, there is an equitable conversion of the real estate into money. Hull v. McCracken, 53 S.W.2d 405 (Mo. App. W.D. 1932).

Additionally, exempt property does not pass to the devisees or legatees. In Missouri, exempt property includes, among other personal items, an automobile, household appliances, and furniture. These exempt items are preserved for the decedent’s surviving spouse and children. Section 474.250, RSMo 2000.

A court-supervised personal representative does not have the authority to take possession of a decedent’s real property except under an order issued by a court or when the decedent’s will provides that the personal representative is not required to obtain court approval. When a court orders a personal representative to take possession of real property, the personal representative must pay the taxes and...