Several years ago a potential client came in. Dad had died several years ago, and Mom died a few weeks ago. There was a will that said the the family farm went to the two children. I started to explain to them the Probate process in Missouri, and they became very upset. They did not understand why there had to be a probate proceeding when the will was very clear. I tried, unsuccessfully, to explain the “Title Clearing” function of probate. This function creates a public record that shows how the title to the farm transfers to the children. Without this there is no way to establish legally who owns the farm, or any other assets, for that matter. This Title clearing function is extremely important where title does not pass in some other manner, such as by joint ownership, beneficiary designation, or through a trust.
At any rate, they stomped out of my office and told me in no uncertain terms that they were not going through probate, and that I was not a very good lawyer!
I hope they changed their mind, but I never heard back.
So, can you just ignore the probate system? Is Probate in Missouri optional? Yes, it’s optional. You can do nothing. However, eventually it will catch up with you, or with somebody. In this case sooner or later the children will want to sell or mortgage the property, give it to their own children, or something along these lines. They will not be able to do so because the farm will still be titled in Mom and Dad’s name. After one year the will cannot be probated in Missouri, and then an “heirship” proceeding must be used to establish title. This may or may not achieve the desired result. Eventually the property may “escheat” to the State of Missouri.
Probate is optional, but rarely is it a good idea to not bite the bullet and go through the process. We understand that and try to make the process as sooth and understandable as possible.
Email us if you have questions.