Estates and Trusts. Professor Cheslik. Selected Missouri Statutes

Transcription

1 Estates and Trusts Professor Cheslik Selected Missouri Statutes

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3 CHAPTER 461: NONPROBATE TRANSFERS Transfers on death, certain provisions deemed nontestamentary, exceptions Law, how cited Definitions Nonprobate transfers not subject to requirements of a will--effect with or without consideration Transferring entity acting as agent for owner subject to nontransfer law, agency does not end with death of owner, duties Nonprobate transfers subject to agreement of transferring entity, when Transferring entity, obligation resulting from acceptance and registration Beneficiary designation under written instrument or law, effect Assignments effective on death of owner--delivery, effect Deeds effective on death of owner--recording, effect Procedure to transfer tangible personal property to take effect on death of owner Transferor may directly transfer property to a transferee to hold as owner in beneficiary form--transferee shall be owner of property for all purposes--transfer effective, when Registration of property, including accounts and securities in beneficiary form, effect Effect of beneficiary designation on ownership of property during lifetime and at death Revocation or change of beneficiaries designation Agents may not make, revoke or change beneficiary unless document establishes agent's right or court order authorizes-- authorized withdrawals may extinguish beneficiary's right to transfer Property designated for a beneficiary if lost, destroyed, damaged or involuntarily converted, during owner's lifetime, effect Effect of collateral conveyances or liens on property subject to nonprobate transfer Survival required Beneficiary designation designating a trustee under trust not invalid because trust is amendable or revocable--trust that is revoked, terminated or does not exist at death of owner, effect Lineal descendant substitutes Disclaimer Marriage dissolution or annulment--revocation of transfer to former spouse or relative of spouse, exception--remarriage to spouse, nullification of annulment, effect, relative of the owner's spouse, defined Disqualification for fraud, duress and undue influence and causing owner's death- proceeding to determine disqualification Omitted spouse or child, probate rules do not apply- after-born child or after-adopted child, effect on nonprobate transfers Nonprobate transfer rules Transferring entity, protection Rights of owners and beneficiaries--improper distribution, liability of distributee--purchasers from distributee protected Rights of creditors Scope and application of law Jurisdiction of probate division of circuit court... '" Beneficiary designation :2

4 valid under law of another state enforceable in Missouri--effect of transfer determined by local law selected in document or designation..., Nonprobate transfer laws to be effective when--prior transfers to be valid Nonprobate beneficiaries to pay, pro rata share of all property received, to personal representative to cover statutory allowances and claims due estate, enforced by action for accounting, time limitation--action affect on transferring entity CHAPTER 471 UNIFORM SIMULTANEOUS DEATH LAW No sufficient evidence of survivorship Survival of beneficiaries Joint tenants or tenants by entirety Insurance policies Law not retroactive Law does not apply if decedent provides otherwise Uniformity of interpretation... '" Short title CHAPTER 472 PROBATE CODE--GENERAL PROVISIONS Definitions Fraud under probate code--remedy--procedure Jurisdiction of probate division of circuit court State may be party to proceedings--service Powers of court- executions, when returnable-- service of process Costs Court open, when-- sessions--time for acts Disqualification of judge Powers of clerk Documents filed with court, form--content Objections to petition, form Notice--court may require--how delivered Proof of service Amendment of proof of service Waiver of notice Waiver of legal requirements, when--limitation on waiver Record kept--adversary probate proceeding defined Proceedings to be conducted in accordance with rules of procedure -- order after action commenced Vacation and modification of judgments Appeal--when--grounds for Appeals from orders as to mental condition--procedure- operates as supersedeas, when- appointment of guardian--review Time for appeal Appeals stayed or consolidated, when Appeals, procedure Records of probate division of circuit court--may be kept by means other than bound volumes--reading equipment, index to be provided Rules of evidence to apply--exceptions--specific rules Proceedings involving trusts--estates--minors--disabled or incapacitated persons- supervised settlements, procedure Independent administration of decedents' estates--application of probate code Approval of act or transaction in best interests of estate Power of court to confirm and validate acts--acts included CHAPTER 473 PROBATE CODE- ADMINISTRATION OF DECEDENTS ESTATES Venue Character of proceeding--jurisdiction of court 38 3

5 Application for letters--content If no application filed, others may request administration or probate- petition, form, contents--hearing, notice, orders Court or clerk to grant letters Request for special notice of hearings Notice of letters - duty of clerk -- publication -- form Successor need not publish notice, when Notice where there are no known heirs will of decedent, where delivered--wills found in safe deposit boxes, how delivered- refusal to deliver, how handled Certificate of probate or rejection wills, presentment for probate, time limited--presented, defined..., Testimony of subscribing witnesses, other evidence Commission for testimony of nonattendant witness Testimony before officer, effect Testimony to be recorded--record as evidence Probate of will, when- procedure for contest Proof of nuncupative wills Heirs, time limits to establish interest in estate- posthumous heirs in gestation, mother has right to file action-- time limitations Proof required for probate and grant of administration... '" Proceedings reopened, when Certificate of probate, contents--evidence Probate of portion of will Will binding, when- contest of will, when, procedure Compromise of controversy as to probate, when binding..., Will not effective until probated Refusal of letters Clerk's duties as to certain forms--not practice of law Court may order administration previously commenced pursuant to guardianship law, dispensed with, when Apportionment of property between surviving spouse and children..., Small estate - distribution of assets without letters, when -- affidavit -- procedure - - fee Effect of acquittances by distributees of small estate Small estate appraised, when Persons entitled to letters Letters granted to others, when Persons and corporations disqualified as personal representative - designation required -- service of process, how made Form of letters testamentary Form of letters of administration Letters c.t.a. and d.b.n., form Letters or copies, evidence Administrator during minority or absence Administrator pending contest, appointed when--duties Resignation by executor or administrator, procedure, effect...,... " Removal of personal representative

6 Revocation of letters on finding will..., Administrator d.b.n., when appointed Remaining executor or administrator to continue..., Compensation of personal representatives, accountants and attorneys Compensation of accountants and attorneys (first class counties and St. Louis City) Bond of personal representative -- conditions of bond Bond not required, when Agreements with surety as to deposit of assets Execution of bond Obligees of bond-- liability of surety Bond of joint executors or administrators Affidavit of personal sureties Persons not acceptable as sureties Approval of bond Bond valid though rejected Sufficiency of bond to be shown on settlements Inquiry into condition of sureties--order for new bond Court may require, increase or decrease bond, when Letters revoked on failure to give bond Effect of new bond Execution of bond deemed appearance by surety- procedure on breach of obligation of bond Successor may sue on bond Limitations on suits Action on bond generally... " Inventory and appraisement Settlement Security Citation of partner Inventory and appraisement--classification of property Affidavit to inventory Additional inventory Compensation of appraisers Debt of executor not discharged Debt of administrator, assets Inventory as evidence Devolution of estate at death Possession of assets Assets for payment of claims Collection of debts, prosecution and defense of suits Actions instituted by or against decedent, duties Compromise of debts due estate Purchase at foreclosure of mortgage held by estate Title to real estate, how taken on such purchase--how administered Payment of debt of decedent secured by property of another--procedure Disposition of valueless or encumbered property Expenditures for preservation of property Continuation of business of decedent Specific execution of contract of decedent--petition Notice--hearing-- intervention Specific execution of contract of decedent, court order - -warranties -- conveyance or lease under will Action for specific performance--proceedings in probate division of circuit court Completion of contracts to purchase property--exercise of 5

7 options Interest may be sold, when Interest relinquished to vendor, when Procedure in case of sale of school lands Conveyances, how made-- procedure Investment of surplus funds Bank deposits Discovery of assets, procedure for Limitations on filing of claims--when claims barred Suits pending at decedent's death deemed duly filed, when--personal representative to list pending actions--period of nonclaim not affected Actions commenced after decedent's death deemed filed, when Establishment of claim by judgment--judgment deemed filed, when Claims, form and verification--claim to be established by evidence Claims not due, proceedings Secured claims- surrender of security--payment Contingent claims Collection of contingent claims from distributees -- limitations -- contribution Classification of claims and statutory allowances Recovery of public assistance funds from recipient's estate, when authorized -- procedure -- exceptions Definitions - ooligation to repay assistance, claim against estate, when - defenses, setoff -- exceptions Allowance of claims- court's duties--allowance by personal representative Defenses against claims Offsets or counterclaims--personal representative to list--how asserted--procedure--judgment Hearing and disposition of claims--notice..., Claim of personal representative--how established-- procedure--fee..., Compromise of claims against estate Payments of claims and statutory allowances in order of classification --proportional payment- -priority Payment of claims not required prior to six months after first publication--payments after six months--insufficient funds- payment with consent of all parties--no just claim to be barred, when Extension or renewal of encumbrances of assets Enforcement of judgment, attachment or execution liens which attached prior to decedent's death Proceedings where real estate has been sold under junior judgment Limitations on filing claims--when claims barred Sale of property under power in will Purposes for which property may be sold, mortgaged, leased or exchanged No known heirs, property to be sold Reservation of property under direction of will--specific devises reserved Heirs may give bond and prevent sale..., Terms of sale Executor or administrator not to purchase, exception Validity of proceedings Sales of perishable property

8 Sale, mortgage or lease of personal property Sale of real estate on court's motion, when Petition to sell, mortgage or lease real estate-- notice--order Creditor or other person may file petition, when Order for sale, mortgage or lease of property, content -- duration -- reappraisal, when Notice of public sale of real estate Public sale of real estate, where made, adjournment Report of sale-- objections--approval New sale ordered, when ~ Conveyance executed, contents--effect Execution of conveyance or lease where personal representative resigns, dies or has letter revoked Taxes not liens in hands of transferee Brokers', abstracting, and auctioneers' fees Platting of real estate Exchange of property Settlements required, when Settlements, contents- vouchers for disbursement- evidence, checks and drafts Interest to be accounted for Settlement docket, contents Notice of time for settlement Failure to file settlement, citation Settlement after citation, penalty Failure to settle after citation, letters revoked Settlement, payment of claims--apportionment where assets insufficient Creditor may have execution, when Scire facias against sureties, when Proceedings on scire facias Petition for final settlement and distribution Notice of final settlement Objections to settlement, when filed--form-- hearing--approval Credit for uncollectible debts shown in inventory Conclusiveness of order approving final settlement Accounting for assets received and disbursed after final settlement Settlement on death, resignation, or removal of personal representative Proceedings to compel settlement--judgment, enforcement Distribution, when required Partial distribution Decree of final distribution Notice to judgment creditors of distribution--contents of request Order in which assets are appropriated--abatement Contribution between devisees Advancements to be determined Right of retainer Interest on general legacies Distributees to refund, when--judgment Partition of personal property in kind Property sold to effect partition, when Notice of application for partition..., Distributee may credit 7

9 share against purchase price, when...,..., proceedings to compel distribution..., Distribution Discharge of personal representative No administration within one year after death and no will probated, interested party may petition--contents of petition-- notice...,... "..., Definitions Administration of estate of nonresident decedent as original proceeding Jurisdiction of property--situs of intangibles Applicability of law to estate of nonresident decedent-- exceptions Filing of copy of appointment of domiciliary foreign personal representative, when Domiciliary foreign personal representative, powers, duties and obligations Power of domiciliary foreign personal representative, when executed -- termination of powers -- substitution of local personal representative, when Priority of personal representative appointed by court of decedent's domicile--exceptions Foreign personal representative subject to jurisdiction of courts of state, when Foreign personal representative also subject to court's jurisdiction to same extent as decedent prior to death Service of process on foreign personal representative, how made..., Debtor or custodian may payor deliver personal property to foreign representative, when Adjudication against any personal representative of estate binding on local personal representative Effect of law on reciprocal corporate fiduciaries law Letters of administration for persons absent for five or more years - application -- notice -- hearing Who may testify Publication of finding- -time for rebuttal Issuance of letters, when Revocation of letters, when--effect--procedure Distributees to give bond before receiving estate Supposed decedent substituted for administrator, when--effect on actions, judgments Payment of costs Certificate and oath -- bond, how sued on Administrators to have separate offices -- St. Louis administrator in civil courts building -- certain public administrators to have secretaries -- clerical personnel to be provided, when Compensation for attendance at training session, certain public administrators, expenses shall be reimbursed, when (certain noncharter counties of the first classification) Compensation, Boone and Clay counties -- removal from office -- public administrator's fees paid to county, when -- public administrator's salary in lieu of fees, when County governing body may authori~e additional compensation, when -- maximum allowed -- additional compensation to terminate, when {certain first class counties Salary schedule for public administrators, certain counties -- administrator to choose salary or fee collection -- certain 8

10 administrators may join LAGERS Powers and duties under administration law Notice of administration, when and how given -- penalty for failure Civil officers to inform public administrator as to property, when Shall prosecute necessary suits Court may order public administrator to account to successor, when Deputies, appointment, tenure, compensation, powers (first class counties) -- delegation of duties, certain counties Deputies, appointment in all counties but first class - tenure -- compensation -- powers Public administrator and sureties liable for acts of deputies Staff to be deemed county employees -- full-time staff may be provided for certain administrators Independent administration, when Notice of independent administration, contents Duties of personal representative in independent administration -- attorney required, when Inventory of property by independent personal representative Independent personal representative may employ appraisers, attorney, accountant or tax specialist Supplementary inventory, when required--copies to interested persons Independent personal representative's right to decedent's property -- exceptions - - duties Powers and duties of independent personal representative Dealing in good faith for value with independent representative protected--no duty to inquire--liability of independent personal representative Liability of personal representative Compensation of independent personal representative and attorney Review of compensation of independent personal representative and of employment and compensation of others, when-- refunds, when Court may restrain personal representative, when - petition -- hearing -- procedure Revocation of independent administration, when - petition -- hearing -- orders of court Settlement of estate, when--notice--distribution Completion of administration--discharge of independent personal representative, when--procedures- objections, time limitation, procedure Time for complete settlement or filing of statement of account -- extension Distribution in kind- deeds, evidentiary effect--improper distribution, liability of distributee, exceptions Interest of purchaser for value from, or lender to, distributee of property protected CHAPTER 474 PROBATE CODE--INTESTATE SUCESSION & WILLS General rules of descent Failure to survive decedent by 120 hours deemed predecease of decedent -- consequences Lineals take per capita and per stirpes, when Partial intestacy

11 Collaterals of half blood inherit, how Posthumous children to inherit Determination of relationship of parent and child- adopted person is child of adopting parent, exception--illegitimate child, relationship determined Legitimation by marriage Issue of void or dissolved marriage, legitimate Advancements counted against share, when--evaluation Alienage no bar to descent Curtesy and dower abolished Inheritance and statutory rights deemed waived, when Estate conveyed determines on failure of contractual bar Inheritance and statutory rights barred on misconduct of spouse Gifts in fraud of marital rights--presumptions on conveyances Contract to make will or devise, revoke or not revoke will or devise, or to die intestate, how established Election by surviving spouse to take against will, effect Valuation of estate, how determined Notice of right to elect Time for making of election Form of election, filing Right of election personal to surviving spouse Waiver of right to elect Effect of failure to elect to take against will Share of omitted spouse Share of omitted children, how determined Exempt property of surviving spouse or minor children One year support allowance, property in lieu thereof--allowance exempt from all claims Exempt property applied for, when Proceeds of sale of exempt property paid over, when Homestead allowance - partition of real estate selected, procedure -- waiver Provision of family allowance by independent personal representative -- limitations -- relief by court Effect of death of spouse or child or marriage of minor on family and homestead allowances Who may make will Will form, execution, attestation Who may witness will-- effect of interest in will Will may provide for disposal of personal property by separate list Written will selfproved, how Nuncupative wills Revocation of nuncupative will Written will valid if executed in compliance with law Foreign wills, recorded when, evidence Probate of foreign wills Wills and trusts, English translation required, costs Contest of foreign will Revocation of wills Revocation of subsequent will also revokes first will--exception

12 Change in circumstances--divorce Property given by testator during life treated as satisfaction of devise, when-- valuation..., Court to conform to directions of will Class gift terminology includes certain persons and relationships, how determined Bond to convey does not revoke devise Encumbrance does not revoke devise--exoneration, when Devisee who does not survive testator by 120 hours treated as predeceasing testator-- exceptions Testator surviving devisee, effect Exchange of securities not to adeem specific legacy Failure of devise to become part of residue Rule in Shelley'S case abolished, effect Devise deemed to convey fee simple, when Wills of land to be recorded, where Deposit of will in court in testator's lifetime Construction of will Wills heretofore probated, effect--evidence

13 CHAPTER 461: NON PROBATE TRANSFERS Transfers on death, certain provisions deemed nontestamentary. exceptions Any of the following provisions in an insurance policy, contract of employment, bond, mortgage, promissory note, stock certificate. account agreement. custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust agreement, declaration of trust, conveyance or any other written instrument effective as a contract. gift, conveyance, or trust or to evidence ownership of property is deemed to be nontestamentary, and exempt from the requirements of section , RSMo, and section , RSMo: (1) That money or other benefits theretofore due to, controlled or owned by a decedent shall be paid after the decedent's death to a person or persons designated by the decedent in either the instrument or a separate writing, including a will, executed at the same time as the instrument or subsequently; (2) That any money due or to become due under the instrument shall cease to be payable in event of the death of the promisee or the promisor before payment or demand; (3) That any property which is the subject of the instrument shall pass on decedent's death to a person or persons designated by the decedent in either the instrument or a separate writing, including a will, executed at the same time as the instrument or subsequently; (4) Except to the extent specifically excluded thereunder, sections to apply to transfers under this section Law, how cited Sections to may be cited as the "Nonprobate Transfers Law of Missouri". HISTORY: L H.B HISTORY L 1995 S.B. 116 NOTES APPLICABLE TO ENTIRE CHAPTER CROSS REFERENCES: Bank or trust companies pay-on-death accounts, form, effect, payment, RSMo Motor vehicles and trailers, certificates of ownership, nonprobate transfers on death, form, procedure, RSMo to

14 Definitions In sections to , unless the context otherwise requires, the following terms mean: (1) 'Beneficiary', a person or persons designated or entitled to receive property pursuant to a non probate transfer on surviving one or more persons; (2) 'Beneficiary designation', a provision in" writing that is not a will that designates the beneficiary of a nonprobate transfer, including the transferee in an instrument that makes the transfer effective on death of the owner, and that complies with the conditions of any governing instrument, the rules of any transferring entity and applicable law; (3) 'Death of the owner", in the case of joint owners. means death of the last surviving owner; (4) 'In proper form', a phrase which applies to a beneficiary designation or a revocation or change thereof, or a request to make. revoke or change a beneficiary designation, which complies with the terms of the governing instrument, the rules of the transferring entity and applicable law, including any requirements with respect to supplemental documents; (5) 'Joint owners', persons who hold property as joint tenants with right of survivorship and a husband and wife who hold property as tenants by the entirety; (6) 'LOPS', an abbreviation of lineal descendants per stirpes which may be used in a beneficiary designation to designate a substitute beneficiary as provided in section ; (7) "Non probate transfer', a transfer of property taking effect upon the death of the owner, pursuant to a beneficiary designation. A nonprobate transfer under sections to does not include survivorship rights in property held as joint tenants or tenants by the entirety, a transfer to a remainderman on termination of a life tenancy, a transfer under a trust established by an individual, either inter vivos or testamentary, a transfer pursuant to the exercise or nonexercise of a power of appointment, or a transfer made on death of a person who did not have the right to designate his or her estate as the beneficiary of the transfer; (8) 'Owner", a person or persons having a right, exercisable alone or with others, to designate the beneficiary of a non probate transfer, and includes joint owners; (9) "Ownership in beneficiary form", holding property pursuant to a registration in beneficiary form or other writing that names the owner of the property followed by a transfer on death direction and the designation of a beneficiary; (10) "Person', living individuals, entities capable of owning property and fiduciaries; (11) 'Proof of death", includes a death certificate or record or report that is prima facie proof or evidence of death under section , RSMo; (12) "Property", any present or future interest in property, real or personal, tangible or intangible, legal or equitable. Property includes a right to direct or receive payment of a debt, money or other benefits due under a contract, account agreement, deposit agreement, employment contract. compensation plan, pension plan, individual retirement plan, employee benefit plan. trust or law, a right to receive performance remaining due under a contract, a right to receive payment under a promissory note or a debt maintained in a written account record, rights under a certificated or un certificated security, rights under an instrument evidencing ownership of property issued by a governmental agency and rights under a document of title within the meaning of section RSMo; (13) "Registration in beneficiary form", titling of an account record, certificate. or other written instrument evidencing ownership of property in the name of the owner followed by a transfer on death direction and the designation of a beneficiary; (14) "Security", a certificated or un certificated security as defined in section , RSMo, including securities as defined in section , RSMo; (15) "Transfer on death direction", the phrase "transfer on death to" or the phrase "pay on death to or the abbreviation 'TOO" or "POD" after the name of the owners and before the designation of the beneficiary; and (16) "Transferring enlity', a per30n who owes a debt or is obligated to pay money or benefits, render contract performance, deliver or convey property, or change the record of ownership of property on the books. records and accounts of an enterprise or on a certificate or document of title that evidences property rights, and includes any governmental agency, business entity or transfer agent that issues certificates of ownership or title to property and a person acting as a custodial agent for an owner's property. HISTORY: L H.B , A.L S.B. 116 'Word "a" appears here in original rolls. 461,009. Nonprobate transfers not subject to requirements of a will effect with or without consideration Nonprobate transfers are effective with or without consideration, and are not to be considered testamentary or subject to section , RSMo, (dealing with the requirement to probate a will), and section , RSMo, (dealing with will form, execution and attestation). HISTORY: l H.B A.L S

15 Deeds effective on death of owner recording. effect 1. A deed that conveys an interest in real property to a grantee designated by the owner, that expressly states that the deed is not to take effect until the death of the owner, transfers the interest provided to the designated grantee beneficiary, effective on death of the owner, if the deed is executed and filed of record with the recorder of deeds in the city or county or counties in which the real property is situated prior to the death of the owner. A beneficiary deed need not be supported by consideration or be delivered to the grantee beneficiary. A beneficiary deed may be used to transfer an interest in real property to a trust estate, regardless of such trust's revocability. 2. This section does not preclude other methods of conveyancing that are permitted by law and that have the effect of postponing enjoyment of an interest in real property until the death of the owner. This section does not invalidate any deed. otherwise effective by law to convey title to the interest and estates therein provided. that is not recorded until after the death of the owner Transferor may directly transfer property to a transferee to hold as owner in beneficiary form transferee shall be owner of property for all purposesutransfer effective. when 1. A transferor of property, with or without consideration, may directly transfer the property to a transferee to hold as owner in beneficiary form. 2. A transferee under an instrument described in subsection 1 of this section shall be the owner of the property for all purposes and shall have all the rights to the property otherwise provided by law to owners, including the right to revoke or change the beneficiary designation. 3. A direct transfer of property to a transferee to hold as owner in beneficiary form is effective when the writing perfecting the transfer becomes effective to make the transferee the owner. HISTORY: L S.B. 116 HISTORY: L 1989 H.B , A.L 1994 S.B. 701, A.L S Procedure to transfer tangible personal property to take effect on death of owner 1. A deed of gift, bill of sale or other writing intended to transfer an interest in tangible personal property, that expressly states that the transfer is not to take effect until the death of the owner, transfers ownership to the designated transferee beneficiary, effective on death of the owner, if the instrument is in other respects sufficient to transfer the type of property involved and is executed by the owner and acknowledged before a notary public or other person authorized to administer oaths. A beneficiary transfer instrument need not be supported by consideration or be delivered to any transferee beneficiary. 2. This section does not preclude other methods of transferring ownership of tangible personal property that are permitted by law and that have the effect of postponing enjoyment of property until the death of the owner. HISTORY: L S.B. 116 ls

16 Transferring entity acting as agent for owner subject to nontransfer law. agency does not end with death of owner. duties For the purpose of discharging its duties under the non probate transfers Jaw. the authority of a transferring entity acting as agent for an owner of property subject to a nonprobate transfer shall not cease at death of the owner. The transferring entity shall transfer the property to the designated beneficiary in accordance with the governing instrument, the rules of the transferring entity and sections to HISTORY: L S.B Nonprobate transfers subject to agreement of transferring entity. when 1. When any of the following is required, provision for a non probate transfer is a matter of agreement between the owner and the transferring entity, under such rules, terms and conditions as the owner and transferring entity may agree: (1) SubmiSSion to the transferring entity of a beneficiary designation under a governing instrument; (2) Registration by a transferring entity of a transfer on death direction on any certificate or record evidencing ownership of property; (3) The consent of a contract obligor for a transfer of performance due under the contract; (4) The consent of a financial institution for a transfer of an obligation of the financial institution; or (5) The consent of a transferring entity for a transfer of an interest in the transferring entity. 2 Whenever subsection 1 of this section is applicable, sections to do not impose an obligation on a transferring entity to accept an owner's request to make provision for a non probate transfer of property. 3. When a beneficiary designation, revocation or change is subject to acceptance by a transferring entity, the transferring entity's acceptance of the beneficiary designation, revocation or change relates back to and is effective as of the time when the request was received by the transferring entity. HISTORY: l H.B , A.L S.B Transferring entity. obligation resulting from acceptance and registration unless the beneficiary designation is revoked or changed prior to the owner's death, on proof of death of the owner and compliance with the transferring entity's requirements for showing proof of entitlement, the property will be transferred to and placed in the name and control of the beneficiary in accordance with the beneficiary designation or transfer on death direction, the agreement of the parties and sections to HISTORY: l H.B , A.L 1995 S.B Beneficiary designation under written instrument or law, effect A beneficiary designation, under a written instrument or law, that authorizes a transfer of property pursuant to a written designation of beneficiary, transfers the right to receive the property to the designated beneficiary who survives, effective on death of the owner, if the beneficiary designation is executed and delivered in proper form to the transferring entity prior to the death of the owner. HISTORY: L H.B A.L 1995 S.B Assignments effective on death of owner delivery. effect 1. A written assignment of a contract right thai assigns the right to receive any performance remaining due under the contract to an assignee designated by the owner, that expressly states that the assignment is not to take effect until the death of the owner, transfers the right to receive performance due under the contract to the designated assignee beneficiary, effective on death of the owner, if the assignment is executed and delivered in proper form to the contract obligor prior to the death of the owner or is executed in proper form and acknowledged before a notary public or other person authorized to administer oaths. A beneficiary assignment need not be supported by consideration or be delivered to the assignee beneficiary. 2. This section does nol preclude other methods of assignment that are permitted by law and that have the effect of postponing enjoyment of a contract right until the death of the owner. HISTORY: l H.B , A.l S.B. 116 When a transferring entity accepts a beneficiary designation or beneficiary assignment. or registers property in beneficiary form, the acceptance or registration constitutes the agreement of the owner and transferring entity that. 14

17 Registration of property, including accounts and securities in beneficiary form, effect 1. Property may be held or registered in beneficiary form by including in the name in which the property is held or registered a direction to transfer the property on death of the owner to a beneficiary designated by the owner. 2. Property is registered in beneficiary form by showing on the account record, security certificate or instrument evidencing ownership of the property the name of the owner, and the estate by which two or more joint owners hold the property, followed in substance by the words "transfer on death to... (name of beneficiary)". In lieu of the words "transfer on death to" the words "pay on death to" or the abbreviation "TOO" or "POD" may be used. 3. A transfer on death direction may only be placed on an account record, security certificate or instrument evidencing ownership of property by the transferring entity or a person authorized by the transferring entity. 4. A transfer on death direction transfers the owner's interest in the property to the designated beneficiary, effective on the o~ner's death. if the property is registered in beneficiary form pnor to the death of the owner, or if the request to make the transfer on death direction is delivered in proper form to the transferring entity prior to the owner's death. 5. An account record, security certificate or instrument evidencing ownership of property that contains a transfer on death direction written as part of the name in which the property is held or registered, is conclusive evidence in the absence of fraud, duress. undue influence or evidence of clerical mistake by the transferring entity that the direction was regularly made by the owner and accepted by the transferring entity, and was not revoked or changed prior to the. death giving rise to the transfer; and the transferring entity shall.have no obligation to retain the original writing, if ~ny. by which the owner caused the property to be registered In beneficiary form. more than six months after the transferring entity has mailed or delivered to the owner, at the address shown on the registration, an account statement, certificate or instrument that shows the manner in which the property is held or registered in beneficiary form. HISTORY: l H.B , A.L S.B Effect of beneficiary designation on ownership of property during lifetime and at death 1. Prior to the death of the owner. a beneficiary shall have no r.ights. in the property by reason of the beneficiary designation and the signature or agreement of the beneficiary shall not be required for any transaction respecting the property. 2. On death of one of two or more joint owners, property with respect to which a beneficiary designation has been made belongs to the surviving joint owner or owners, and the right of survivorship continues as between two or more surviving joint owners. 3. On death of the owner, property passes by operation of law to the beneficiary. 4. If two or more beneficiaries survive, there is no right of survivorship among the beneficiaries in the event of death of a beneficiary thereafter unless the beneficiary designation expressly provides for survivorship among them, and, unless so expressly provided, surviving beneficiaries hold their separate interests in the property as tenants in common. The share of any subsequently deceased beneficiary belongs to that beneficiary's estate. 5. If no beneficiary survives the owner, the property belongs to the estate of the owner. HISTORY: l H.B , A.l S.B Revocation or change of beneficiaries designation 1. A beneficiary designation may be revoked or changed in whole or in part during the lifetime of the owner. A revocation?r change of a beneficiary designation involving property of JOint owners may only be made with the agreement of all owners then living. 2. A subsequent beneficiary designation revokes a prior ben~ficiary designation unless the subsequent beneficiary deslgnalion expressly provides otherwise. 3. A revo~ation or change in a beneficiary designation shall comply With the terms of the goveming instrument, the rules of the transferring entity and the applicable law. 4. A benefi~i~ry design~tion may not be revoked or changed by the provisions of a will unless the beneficiary designation expressly grants the owner the right to revoke or change a beneficiary designation by will. 5. A transfer during the owner's lifetime of the owner's interest in property, with or without consideration, terminates the beneficiary designation with respect to the property transferred. 6. The effective date of a revocation or change in a beneficiary designation shall be determined in the same manner as the effective date of a beneficiary designation. HISTORY: l H.B , A.l S.B

18 Agents may not make, revoke or change beneficiary unless document establishes agent's right or court order authorizes authorized withdrawals may extinguish beneficiary's right to transfer 1. An attorney in fact. custodian, conservator or other agent may not make, revoke or change a beneficiary designation unless the document establishing the agent's right to act, or a court order, expressly authorizes such action and such action complies with the terms of the goveming instrument, the rules of the transferring entity and applicable law. 2. This section shall not prohibit the authorized withdrawal, sale, pledge or other present transfer of the property by an attorney in fact, custodian, conservator or other agent notwithstanding the fact that the effect of the transaction may be to extinguish a beneficiary's right to receive a transfer of the property at the death of the owner. HISTORY: L 1995 S Property designated for a beneficiary if lost. destroyed, damaged or involuntarily converted, during owner's lifetime, effect In the event property subject to a beneficiary designation is lost, destroyed, damaged or involuntarily converted during the owner's lifetime, the beneficiary succeeds to any right with respect to the loss, destruction, damage or involuntary conversion which the owner would have had if the owner had survived, but has no interest in any payment or substitute property received by the owner during the owner's lifetime. HISTORY: L 1995 S.B Effect of collateral conveyances or liens on property subject to non probate transfer 1. A beneficiary of a nonprobate transfer takes the owner's interest in the property at death subject to all conveyances, assignments, contracts, setoffs, licenses, easements, liens and security interests made by the owner or to which the owner was subject during the owner's lifetime. 2. A beneficiary of a nonprobate transfer of an account with a bank, savings and loan association, credit union, broker or mutual fund takes the owner's interest in the property at death subject to all requests for payment of money issued by the owner prior to death, whether paid by the transferring entity before or after death, or unpaid. The beneficiary is liable to the payee of an unsatisfied request for payment, to the extent that it represents an obligation that was enforceable against the owner during the owner's lifetime. To the extent that a claim properly paid by the personal representative of the owner's estate includes the amount of an unsatisfied request for payment to the claimant. the personal representative shall be subrogated to the rights of the claimant as payee. Each beneficiary's liability with respect to an unsatisfied request for payment is limited to the same proportionate share of the request for payment as the beneficiary's proportionate share of the account under the beneficiary designation. Beneficiaries shall have the right of contribution among themselves with respect to requests for payment which are satisfied after the owner's death, to the extent the requests for payment would have been enforceable by the payees. In no event shall a beneficiary's liability to payees, the owner's estate and other beneficiaries under this section and section with respect to all requests for payment exceed the value of the account received by the beneficiary. If a request for payment which would not have been enforceable under this section is satisfied from a beneficiary's share of the account, the beneficiary shall not be liable to any other payee or the owner's estate under this section or section for the amount so paid, but the beneficiary shall have no right of contribution against other beneficiaries with respect to that amount. HISTORY: L 1989 H.B , A.L 1995 S.B Survival required 1. An individual who is a beneficiary of a non probate transfer shall not be entitled to a transfer unless the individual survives the owner by one hundred twenty hours. 2. If an owner provides and the transferring entity accepts, or if a goveming instrument or applicable law provides, a period of survival different than one hundred twenty hours, the period designated shall determine the survival requirement of beneficiaries under this section. An owner and transferring entity may agree that certain circumstances raise a different presumption of survival or nonsurvival. 3. This section does not apply to survivorship rights of joint owners. HISTORY: L 1989 H.B , A.L S.B

19 Beneficiary designation designating a trustee under trust not invalid because trust is amendable or revocable trust that is revoked, terminated or does not exist at death of owner, effect 1. A beneficiary designation designating a trustee under a trust established or to be established by the owner or some other person, including a funded or unfunded trust, shall not be invalid because the trust is amendable or revocable or both or because the trust was amended after the designation. 2. Unless a beneficiary designation provides otherwise, a trust that was revoked or terminated before the death of the owner shall be deemed not to have survived the owner. 3. Unless a beneficiary designation provides otherwise, a legal entity or trust that does not exist or come into existence at the time of the owner's death shall be deemed not to have survived the owner. HISTORY: l S Lineal descendant substitutes 1. Whenever a person designated as beneficiary of a nonprobate transfer is a lineal descendant of the owner, and the beneficiary is deceased at the time the beneficiary designation is made or does not survive the owner, or is treated as not surviving the owner, the nonsurviving beneficiary's share shall belong to that beneficiary's lineal descendants per stirpes who survive the owner, to take in place of and in substitution for the non surviving beneficiary, the same as the beneficiary would have taken if the beneficiary had survived. This subsection shall not apply (0 a beneficiary designation with the notation "no LOPS after a beneficiary's name or other words negating an intention to direct the transfer to the lineal descendant substitutes of a nonsurviving beneficiary. 2. A beneficiary designation may provide that the share of any beneficiary not related to the owner as provided in subsection 1 of this section, and who does not survive the owner, shall belong to that beneficiary's lineal descendants per stirpes who survive the owner, by including after the name of the beneficiary the words "and tineal descendants per stirpes' or the abbreviation LOPS. 3. Lineal descendants, taking as substitutes for a beneficiary of a non probate transfer, if they are of the same degree of kinship to the nonsurviving beneficiary. share equally, but if they are of unequal degree, then those of more remote degree take the share of their parent by representation. 4. Whenever a nonprobate transfer is to be made to a beneficiary's lineal descendants per stirpes, the property shall belong to such lineal descendants of the beneficiary who survive the owner, and in such proportions, as would result if the survivors were inheriting personal property of the beneficiary under the laws of Missouri and the beneficiary had died at the time of the owner's death, intestate, unmarried, domiciled in Missouri and possessed of such property. 5. Whenever a beneficiary of a non probate transfer does not survive the owner and the beneficiary is a person for whom the beneficiary's surviving lineal descendants take as substitutes under subsection 1 or 2 of this section, if there are no lineal descendants of the beneficiary who survive the owner, the beneficiary's share shall belong to the surviving beneficiaries, or to the owners estate, as would be the case if transfer to the beneficiary's lineal descendants were not required to be considered. HISTORY: l H.B , A.L S.B Disclaimer If a beneficiary of a non probate transfer disclaims in whole or in part the nonprobate transfer in the manner provided by law, then with respect to the disclaimed transfer, the disclaimant is treated as having predeceased the owner unless the beneficiary designation provides otherwise; but the possibility that a beneficiary or descendant may disclaim a transfer shall not require any transferring entity to withhold making the transfer in the normal course of business. HISTORY: l H.B , A.l S

20 Marriage dissolution or annulment revocation of transfer to former spouse or relative of spouse, exception.. remarriage to spouse, nullification of annulment, effect, relative of the owner's spouse, defined 1. If, after an owner makes a beneficiary designation, the owner's marriage is dissolved or annulled, any provision of the beneficiary designation in favor of the owner's former spouse or a relative of the owner's former spouse is revoked on the date the marriage is dissolved or annul/ed. whether or not the beneficiary designation refers to marital status. The beneficiary designation shall be given effect as if the former spouse or relative of the former spouse had disclaimed the revoked provision. 2. Subsection 1 of this section does not apply to a provision of a beneficiary designation that has been made irrevocable. or revocable only with the spouse's consent, or that is made after the marriage was dissolved, or that expressly states that marriage dissolution shall not affect the designation of a spouse or relative of a spouse as beneficiary. 3. Any provision of a beneficiary designation revoked solely by this section is revived by the owner's remarriage to the former spouse or by a nullification of the marriage dissolution or annulment 4. In this section, "a relative of the owner's former spouse" means an individual who is related to the owner's former spouse by blood. adoption or affinity and who, after the divorce or annulment, is not related to the owner by blood, adoption onffmity. HISTORY: L 1989 H.B , A.L 1995 S.B. 116 subsection 3 of this section using a preponderance of the evidence standard. 3. On petition of any interested person or the transferring entity, the trier of fact shall determine whether a beneficiary designation or a revocation of a beneficiary designation is void by reason of subsection 1 of this section or whether subsection 2 of this section applies to prevent any person from receiving an y benefit of the non probate transfer. The trier of fact may mitigate the effect of subsection 1 or 2 on any person as the trier of fact determines justice requires. Any party may demand a jury trial. HISTORY: l H.B , A.L S.B. 116 (1998) Statute does not provide for reformation of beneficiary deed due to unilateral mistake. Groh v. Ballard, 965 SW,2d 872 (Mo.App. W.O.) 'Disqualification for fraud, duress and undue influence and causing owner's death.. proceedi'lit.g to determine disqualification 1. A benetrc~ designation or a revocation of a beneficiary designatiolil ~thid is procured by fraud, duress or undue influence is WlDid. 2. A beneflcimywho willfully and unlawfully causes or participates \WHIt another in causing the death of the owner, or the insliljstliiadivid ual under a life insurance policy or ce rtificate" iis c(iisqualified from receiving any benefit of a nonprob~ :trsjsfer from the owner or any proceeds payable as a resuu(df:the:death of an individual insured under a life insurance;milirlor certificate. The beneficiary designation shall be givend'ect as if the disqualified beneficiary had disclaimed it.1ltie fact that a beneficiary willfully and unlawfully.caused or participated with another in causing the death of ti1.ecoyotef may be established by a criminal convicfum((jrwjily plea, after the right of direct appeal has been eihaustml or determined in a proceeding pursuant to 19

21 Omitted spouse or child, probate rules do not apply.. after-born child or after-adopted child, effect on non probate transfers 1. No law intended to protect a spouse or child from unintentional disinheritance by the will of a testator shall apply to a non probate transfer. 2. A beneficiary designation designating the children of the owner or any other person as a class and not by name shall include all children of the person, whether born or adopted before or after the beneficiary designation is made. 3. If a beneficiary designation names an individual who is a child of the owner, and if the owner has a child born or adopted after the owner makes the beneficiary designation, the after-born or after-adopted child shall be entitled to receive a fractional share of any property otherwise transferable to any child of the owner who is named in the beneficiary designation, computed as follows: the numerator of the fraction shall be one, and the denominator shall be the total number of the owner's children, whether born or adopted before or after the beneficiary designation was made and whether named or not in the beneficiary designation. The property otherwise transferable to the owner's children named in the beneficiary designation shall be reduced in the proportion that their shares bear to each other. If there is no share designated for any child of the owner an after-born or after-adopted child shall receive no share of the property subject to the non probate transfer. 4. A beneficiary designation, a governing instrument or the rules of any transferring entity may provide that the after-born child rule does not apply, in which case after-born and afteradopted children of the owner shall receive no share of property designated for named children of the owner. 5. A transferring entity shali have no obligation to apply subsection 3 of this section in making distribution with respect to property registered in beneficiary form. This exception for the transferring entity shall not affect the ownership interest of the after-born or after-adopted child. HISTORY: l H.B , A.L S.B Nonprobate transfer rules 1. The rights and obligations of the owner, beneficiary and transferring entity shall be governed by the nonprobate transfers law of Missouri. 2. When provision for a nonprobate transfer is a matter of. agreement between the owner and the transferring entity pursuant to section , a transferring entity may adopt rules for the making, revocation, acceptance and execution of beneficiary designations and a transferring entity may adopt the rules in subdivisions (1) to (15) of subsection 3 of this section in whole or in part by incorporation by reference. 3. The following rules in subdivisions (1) to (15) of this subsection shall apply to all beneficiary designations except as otherwise provided by any governing instrument, the rules of any transferring entity, applicable law or the beneficiary designation: (1) A beneficiary designation or a request for registration of property in beneficiary form shall be made in writing, signed by the owner and dated, except as provided in subdivision (2) of this subsection; (2) A security that is not presently registered in the name of the owner may be registered in beneficiary form on instructions given by a broker or a person delivering the security; (3) A beneficiary designation may designate one or more primary beneficiaries and one or more contingent beneficiaries; (4) On property registered in beneficiary form, primary beneficiaries are the persons shown immediately following the transfer on death direction. Words indicating that the persons shown are primary beneficiaries are not required. If contingent beneficiaries are designated, their names in the registration shall be preceded by the words 'contingent beneficiaries', or an abbreviation thereof, or words of similar meaning; (5) Unless a different percentage or fractional share is stated for each beneficiary, surviving multiple primary beneficiaries or multiple contingent beneficiaries share equally.. When a percentage or fractional share is designated for multiple beneficiaries, either primary or contingent, surviving beneficiaries share in the proportion that their designated shares bear to each other; (6) Provision for a transfer of unequal shares to multiple beneficiaries for property registered in beneficiary form may be expressed in the registration by a number preceding the name of each beneficiary that represents a percentage share of the property to be transferred to that beneficiary. The number representing a percentage share need not be followed by the word percent or a percent sign;. (7) A non probate transfer of property also transfers any Interest, rent, royalties, earnings, dividends or credits earned or declared on the property, but not paid or credited before the owner's death; 20

22 (8) If a distribution by a transferring entity pursuant to a non probate transfer results in fractional shares in a security or other property that is not divisible, the transferring entity may distribute the fractional shares in the name of all beneficiaries as tenants in common or as the beneficiaries may direct, or the transferring entity may sell the property, that is not divisible and distribute the proceeds to the beneficiaries in the proportions to which they are entitled; (9) On death of the owner, the property, less a setoff for all amounts and charges owing by the owner to the transfening entity, shall belong to the surviving beneficiaries, and their lineal descendants when required as substitutes, as follows: (a) If a multiple primary beneficiary does not survive and has no surviving lineal descendant substitutes, the nonsurviving primary beneficiary's share shall belong to the surviving primary beneficiaries in the proportion that their shares bear to each other; (b) If no primary beneficiary or lineal descendant substitute survives. the property shall belong to the surviving contingent beneficiaries in equal shares or in the percentage or fractional share stated; (c) If a multiple contingent beneficiary does not survive and has no lineal descendant substitutes, the nonsurviving contingent beneficiary's share shall belong to the surviving contingent beneficiaries in the proportion that their shares bear to each other; (d) If no beneficiary survives the owner, the property shall belong to the owner's estate; (10) If a trustee designated as a beneficiary does not survive the owner, resigns or is unable or unwilling to execute the trust as trustee, and, if within one year of the owner's death no successor trustee has been appointed or has undertaken to act, or if a trustee is designated as beneficiary and no trust instrument or probated will creating an express trust has been presented to the transferring entity, the transferring entity may in its discretion make the distribution as it would be made if the trust did not survive the owner; (11) If, within six months of the owner's death, the transferring entity has not been presented evidence that a nonsurviving beneficiary for whom LOPS distribution applies had lineal descendants who survived the owner, the transferring entity may in its discretion make the transfer as if the beneficiary's descendants, if any, did not survive the owner; (12) If a beneficiary cannot be located at the time the transfer is made to located beneficiaries, the transferring entity shall hold the missing beneficiary's share. If the missing beneficiary's share is not claimed by the beneficiary or the beneficiary's personal representative or successors within one year of the owner's death, the transferring entity shall transfer the share as if the beneficiary did not survive the owner. The transferring entity shall have no obligation to attempt to locate a missing beneficiary, to pay interest on the share held for a missing beneficiary or to invest the missing beneficiary's share in any different property. Cash, interest, rent, royalties, earnings or dividends payable to the missing beneficiary may be held by the transferring entity at interest or reinvested by the transferring entity in the account or in a dividend reinvestment account associated with a security held for the missing beneficiary; (13) If a transfening entity is required to make a nonprobate transfer to a minor or a disabled adult the transfer may be made pursuant to the Missouri transfers to minors law, chapter 404, RSMo, the Missouri personal custodian law, chapter 404, RSMo, or a similar law of another state; (14) A written request for execution of a nonprobate transfer may be made by any beneficiary, a beneficiary's legal representative or attorney in fact, or the owner's personal representative. The request shall be under oath or affirmation, subscribed before a notary public or other person authorized to administer oaths, and shall include the following: (a) The full name, address and tax identification number of each beneficiary; (b) The percentage or fractional share to be distributed to each beneficiary; (c) The manner in which percentage or fractional shares in nondivisible property or the proceeds therefrom are to be distributed; (d) A statement that there are no known disputes as to the persons entitled to a distribution under the non probate transfer or the amounts to be distributed to each person, and no known claims that would affect the distribution requested; (e) Such other information as the transferring entity may require; (15) A written request pursuant to subdivision (14) of this subsection shall be accompanied by the following: (a) Any certificate or instrument evidencing ownership of the contract, account, security or property; (b) Proof of death of the owner and any nonsurviving beneficiary; (c) An inheritance tax waiver from states that require it; (d) Where the request is made by a legal representative, a certified copy of the court order appointing the legal representative; and (e) Such other proof of entitlement as the transferring entity may require. HISTORY: L 1989 H.B , A.L 1995 S.B

23 Transferring entity, protection 1. The owner in making provision for a nonprobate transfer under sections to gives to the transferring entity the protections provided in this section for executing the owner's beneficiary designation. 2. The transferring entity may execute a nonprobate transfer with or without a written request. 3. The transferring entity may rely and act on:. (1) A certified or authenticated copy of a death certificate issued by an official or agency of the place where the death occurred as showing the fact, place, date, time of death and the identity of the decedent; or (2) A certified or authenticated copy of any report or record of a governmental agency, domestic or foreign, that a person is missing, detained, dead or alive and the dates, circumstances and places disclosed by the record or report. 4. The transferring entity may rely and act on, and shall have no duty to verify, information in a written reque.st made by ~ person specified in subdivision (14) of subsection 3 of section , under oath or affirmation, subscribed before a notary public or other person authorized to administer oaths, for execution of the beneficiary designation. 5. The transferring entity shall have no duty: (1) To give notice to any person of the date, manner an.d persons to whom transfer will be made under the beneficiary designation, except as provided in subsection 6 of this section; (2) To attempt to locate any beneficiary or lineal descendant substitute, or determine whether a non surviving beneficiary or descendant had lineal descendants who survived the owner; (3) To locate a trustee or custodian, obtain appointment of a successor trustee or custodian, or discover the existence of a trust instrument or will that creates an express trust; or (4) To determine any fact or law that would cause the beneficiary designation to be revoked in whole or in part as to any person because of change in marital status or other reason, or that would qualify or disqualify any person to receive a share under the nonprobate transfer, or that would vary the distribution provided in the beneficiary desi~nation. 6. (1) The transferring entity shall have no duty to Withhold making a transfer based on knowledge of any fact or claim adverse to the transfer to be made unless, prior to the transfer, the transferring entity has received written notice at a place and time and in a manner which affords a reasonable opportunity to act on it before the transfer is made, that: (a) Asserts a claim of beneficial interest in the transfer adverse to the transfer to be made; (b) Gives the name of the claimant and an address for communications directed to the claimant; (c) Identifies the deceased owner and the property to which the claim applies; and (d) States the amount and nature of the claim as it affects the transfer. (2) If a notice as provided in subdivi~ion (1). of this subsection is received by the transfemng entity, the transferring entity may discharge a~y duty to ~he clai~ant by delivering a notice or sending a notice by certifie? mall to the claimant at the address given in the notice of claim advlsmg that a transfer adverse to the claimant's asserted claim may be made in thirty days from the date of delivery or mailing unless the transfer is restrained by a court order. If the transferring entity so delivers or mails such a notice it shall withhold making the transfer for thirty days after the date of delivery or mailing and may then make the transfer unless restrained by a court order. (3) No other notice or other information shown to have been available to the transferring entity, its transfer agent and their employees, shall affect the right to the protections provided in sections to The transferring entity shall have no responsibility for the application or use of property transferred to a fiduciary which the fiduciary as such is entitled to receive. 8. Notwithstanding the protections provided the transferring entity in sections to , in the event the transferring entity is uncertain as to the beneficiary entitled to receive a transfer or the beneficiary's proper share, or in the event of a dispute as to the proper transfer, the transferring entity may require the parties to adjudicate their respective rights or to furnish an indemnity bond protecting the transferring entity. 9. A transfer by the transferring entity in accordance with sections to and pursuant to the beneficiary designation in good faith and in reliance on information the transferring entity reasonably believes to be accurate, discharges the transferring entity from all claims for the amounts paid and the property transferred. 10. The protections provided a transferring entity in sections to are in addition to protections provided by chapters 400, 403, 404 and 456, RSMo. HISTORY: L H.B , A.L S.B

24 Rights of owners and beneficiaries improper distribution, liability of distributee purchasers from distributee protected 1. Any protection provided to a transferring entity or to a purchaser or lender for value under sections to shaff have no bearing on the rights of beneficiaries or others in disputes among themselves concerning the ownership of the property. 2. Unless the payment or transfer can no longer be questioned because of adjudication, estoppel or limitations, a transferee of money or property pursuant to a non probate transfer that was improperly distributed or paid, is liable to retum to the transferring entity or deliver to the rightful transferees the money or property improperly received and the income earned thereon by the transferee. If the transferee does not have the property, then the transferee is liable to return the value of the property as of the date of disposition, and the income and gain received by the transferee from the property and its proceeds. If the transferee has encumbered the property, the transferee shaff satisfy any debt incurred that imposes an encumbrance on the property, sufficient to release any security interest, lien or other encumbrance on the property. 3. A purchaser for value of property or a lender who acquires a security interest in the property from a beneficiary of a nonprobate transfer after the death of the owner, in good faith, takes the property free of any claims of or liability to the owner's estate, creditors of the owner's estate, persons claiming rights as beneficiaries under the non probate transfer or heirs of the owner's estate, in absence of actual knowledge that the transfer was improper or that the information in an affidavit, if any, provided pursuant to subdivision (14) of subsection 3 of section is not true: and, a purchaser or lender for value shaff have no duty to verify sworn information relating to the nonprobate transfer. The protection provided by this subsection applies to information that relates to the ownership interest of the beneficiary in the property and the beneficiary's right to seff, encumber and transfer good title to a purchaser or lender and does not relieve a purchaser or lender from the notice imparted by instruments of record respecting the property. 4. A non probate transfer that is improper because of the application of sections to shaff impose no liability on the transferring entity if made honestly in good faith, regardless of any negligence in determining the proper transferees. The remedy of the rightful transferees shall be limited to an action against the improper transferees. HISTORY: L H.B , A.L S.B Rights of creditors A deceased owner's creditors, surviving spouse and unmarried minor children shaff have the rights set forth in section with respect to the value of property passing by nonprobate transfer. HISTORY: L H.B A.L Scope and application of law 1. Subject to the provisions of section , sections to apply to a nonprobate transfer on death if at the time the owner designated the beneficiary: (1) The owner was a resident of this state; (2) The obligation to payor deliver arose in this state or the property was situated in this state; or (3) The transferring entity was a resident of this state or had a place of business in this state or the obligation to make the transfer was accepted in this state. 2. The direction for a non probate transfer on death of the owner and the obligation to execute the non probate transfer remain subject to the provisions of sections to despite a subsequent change in the beneficiary, in the rules of the transferring entity under which the transfer is to be executed, in the residence of the owner, in the residence or place of business of the transferring entity or in the location of the property. 3. Sections to and to do not apply to accounts or deposits in financial institutions unless the provisions of sections to are incorporated into the certificate, account or deposit agreement in whole or in part by express reference. 4. Sections to apply to transfer on death directions given to a personal custodian under the Missouri personal custodian law to the extent that they do not conflict with section , RSMo. 5. Sections to and to do not apply to certificates of ownership or title issued by the director of revenue. 6. Sections to and to do not apply to property, money or benefits paid or transferred at death pursuant to a life or accidental death insurance policy, annuity, contract, plan or other product sold or issu~d by a life insurance company unless the provisions of sections to are incorporated into the policy or beneficiary designation in whole or in part by express reference. 7. Sections to and to do ~ot apply to any non probate transfer where the governing Instrument or law expressly provides that the nonprobate transfers law of Missouri shaff not apply. 8. Section shall not apply to any employee benefit plan governed by 29 U.S.C. Section 1001 et seq. HISTORY: L.1989 H.B , A.L S.B. 116, A.L H.B.644 merged with S.B. 227) 23

25 Jurisdiction of probate division of circuit court The probate division of the circuit court may hear and determine questions and issue appropriate orders conceming, the determination of the beneficiary who is entitled to receive a nonprobate transfer, the proper share of each beneficiary and any action to obtain the retum of any money or property, or its value and eamings, improperly distributed to any person, HISTORY: L 1989 H.B A,L 1995 S.B Beneficiary designation valid under law of another state enforceable in Missouri--effect of transfer determined by local law selected in document or designation Nonprobate transfer laws to be effective when--prior transfers to be valid 1. Sections to shall apply to beneficiary designations for nonprobate transfers made on and after August 28,1989. Sections to shall apply to all non probate transfers occurring on and after January , Any provision for a nonprobate transfer of money, benefits or property at death as now permitted in sections to , purported to have been made before August 28, 1989, is validated notwithstanding that there was no specific statutory authority for making the non probate transfer in that manner at the time provision for the non probate transfer was made. HISTORY L 1989 H.B A beneficiary designation that purports to have been made and which is valid under the Uniform Probate Code. Uniform TOO Security Registration Law or similar law of another state is govemed by the law of that state and the nonprobate transfer may be executed and enforced in this state. 2 The meaning and legal effect of a nonprobate transfer shall be determined by the local law of the particular state selected in a governing instrument or beneficiary designation. 3. The provisions of this chapter shall be applied and construed to effectuate their general purpose to make uniform the law with respect to the subject of this chapter among states enacting a similar law. HISTORY: L S

26 Nonprobate beneficiaries to pay, pro rata share of all property received, to personal representative to cover statutory allowances and claims due estate, enforced by action for accounting, time limitation--action affect on transferring entity 1. Each beneficiary who receives a non probate transfer of a decedent's property under sections to and each person who receives other property by a transfer other than from the administration of the decedent's probate estate that was subject to satisfaction of the decedent's debts immediately prior to the decedent's death, but only to the extent of the decedent's contribution to the value of such other property. shall be liable to account to the decedent's personal representative for a pro rata share of the value of all such property received, to the extent necessary to discharge the statutory allowances to the surviving spouse and unmarried minor children, and claims, remaining unpaid after application of the decedent's estate, including expenses of administration and costs as provided in subsection 3 of this section, and including estate or inheritance or other transfer taxes imposed by reason of the decedent's death only where payment of those taxes is a prerequisite to satisfying unpaid claims which have a lower level of priority. No proceeding may be brought under this section when the deficiency described in this subsection is solely attributable to costs and expenses of administration. 2 The obligation of a beneficiary of a non probate transfer or other recipient of property under subsection 1 of this section may be enforced by an action for accounting commenced within eighteen months following the decedent's death by the decedent's personal representative, a creditor of the decedent's estate, the decedent's surviving spouse or one acting for an unmarried minor child of the decedent. but no action for accounting under this section shall be commenced by any person unless the personal representative has received a written demand therefor by a creditor, surviving spouse or one acting for an unmarried minor child of the decedent. Sums recovered in an action for accounting under this section shall be administered by the personal representative as part of the decedent's estate except as provided in subsection 3 of this section. 3. The judgment in a proceeding authorized by this section shall take into account the expenses of administration of the estate including the cost of administering the additional assets obtained in the proceeding, and the costs of the proceeding to the extent authorized by this subsection. If the proceeding is commenced by a person other than the personal representative, the court may order the costs of the proceeding, other than attorney fees, to be charged against the amounts recovered and recoverable as a result of the proceeding. If the proceeding is commenced by the personal representative, the court may order the costs of the proceeding, including attorney fees, to be treated as expenses of administration of the estate. 4. After an action for accounting has been commenced under this section, any party to the proceeding may join and bring into the action for accounting other persons who are liable to account to the decedent's personal representative under subsection 1 of this section. 5. This section shall not affect the right of any transferring entity. as defined in section , to execute a direction of the decedent to make a payment or to make a nonprobate transfer or other transfer described in subsection 1 of this section on death of the decedent, or make the transferring entity liable to the decedent's estate, unless before the payment or transfer is made the transferring entity has been served with process in a proceeding brought under this section and the transferring entity has had a reasonable time to act on it. 6. This section does not create a lien on any property that is the subject of a non probate transfer or other property not subject to probate administration, except as a lien may be perfected by way of attachment, garnishment or judgment in an accounting proceeding authorized by this section. 7. An action for accounting under this section may be filed in the probate division of the circuit court, and the probate division of the circuit court may hear and determine questions and issue appropriate orders in an action for accounting under this section. 8. The recipient of any property held in trust that was subject to the satisfaction of the decedent's debts immediately prior to the decedent's death, and the recipient of any property held in joint tenancy with right of survivorship that was subject to the satisfaction of the decedent's debts immediately prior to the decedent's death, are subject to this section, but only to the extent of the decedent's contribution to the value of the property. 9. This section shall apply to all actions commenced after August 28, 1995, except that with respect to decedents dying prior to August 28,1995, an action for accounting under this section may be commenced within two years following the decedent's death. HISTORY: L S.B. 116 NOTES APPLICABLE TO ENTIRE CHAPTER CROSS REFERENCES: Bank or trust companies pay-on-death accounts, form, effect. payment, RSMo Motor vehicles and trailers, certificates of ownership, non probate transfers on death, form, procedure, RSMo to

27 CHAPTER 471 UNIFORM SIMULTANEOUS DEATH LAW No sufficient evidence of survivorship Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, as determined by a court of competent jurisdiction, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this law. HISTORY: L V. I p (1961) Evidence justified finding that wife survived husband. Schmidt v. Pierce (Mo.). 344 S,W,2d 120. HISTORY: L V. I p. 13 3, A.L S.B Insurance policies Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously the proceeds of the policy shall be distributed as if the insured had survived the beneficiary. HISTORY: L V.I p. 13 4, A.L S.B. 120 (1963) Evidence sufficient to support finding that beneficiary survived insured after both were fatally injured in same automobile accident. Prudential Ins. Co. of America v. Sutton (A.), 368 S,W,2d ,020. Survival of beneficiaries If property is so disposed of that the right of a beneficiary to succeed to any interest therein is conditional upon his surviving another person, and both persons die, and there is no sufficient evidence that the two have died otherwise than simultaneously, the beneficiary shall be deemed not to have survived. If there is no sufficient evidence that two or more beneficiaries have died otherwise than simultaneously and property has been disposed of in such a way that at the time of their death each of such beneficiaries would have been entitled to the property if he had survived the others, the property shall be divided into as many equal portions as there were such beneficiaries and these portions shall be distributed respectively to those who would have taken in the event that each of such beneficiaries had survived. HISTORY: L V. I p. 13 3, A.L S.B Law not retroactive This law shall not apply to the distrioution of the property of a person who has died before it takes effect. HISTORY: L V.I p , Law does not apply if decedent provides otherwise This law shall not apply in the case of wills, living trusts, deeds or contracts of insurance or any oiher situation where provision is made for distribution of property different from the provisions of this law, or where provision is made for a presumption as to survivorship which results in a distribution of property different from that here provided. HISTORY: L V.I p. 13 6, A.L S.B Joint tenants or tenants by entirety Where there is no sufficient evidence that two joint tenants or tenants by the entirety have died otherwise than simultaneously the property so held shall be distributed onehalf as if one had survived and one-half as if the other had survived. If there are more than two joint tenants and all of them have so died the property thus distributed shall be in the proportion that one bears to the whole number of joint tenants. The term 'joint tenants' includes owners of property held under circumstances which entitled one or more to the whole of the property on the death of the other or others Uniformity of interpretation This law shall be so construed and interpreted as to effectuate its general purpose to make uniform the law in those states which enact it. HISTORY: L V. I p

28 Short title This law may be cited as "The Uniform Simultaneous Death Law" HISTORY: L V. I p CHAPTER 472 PROBATE CODE-GENERAL PROVISIONS Application, when effect on pending proceedings and rights This act" shall apply to the estates of persons whose deaths occur on or after January 1, The procedures herein prescribed shall govern all proceedings in probate then pending, except to the extent that, in the opinion of the court, their application in particular proceedings or parts thereof would not be feasible or would work injustice, in which event the former procedure shall apply. No act done in any proceeding commenced before January 1, and no accrued right shall be impaired by its provisions. When a right is acquired, extinguished or barred upon the expiration of a prescribed period of time which has commenced to run by the provision of any statute in force before this act" takes effect. such provision shall remain in force and be deemed a part of the probate code with respect to such right except as otherwise provided therein. HISTORY: L 1980 SB. 637 EFFECTIVE Effective 'This act was known as the 'Probate Code'. which includes chapters 472, 473 and 474, RSMo. NOTES APPLICABLE TO ENTIRE CHAPTER CROSS REFERENCES: Administration of decedents' estates. Chap RSMo Cattle. female. sale by estate. brucellosis vaccination law special provisions. RSMo Deaf persons. auxiliary services and aids. RSMo Disclaimers of property, Chap RSMo Durable power of attomey, RSMo to Guardian and ward, Chap. 475, RSMo Intestate succession and wills, Chap. 474, RSMo Nonprobate transfers. RSMo to Definitions When used in this code. unless otherwise apparent from the context: (1) "Administrator" includes any administrator de bonis non, administrator cum testamento annexo, administrator ad litem and administrator during absence or minority; (2) "Child" includes an adopted child and a child born out of wedlock, but does not include a grandchild or other more remote descendants; (3) "Claims" include liabilities of the decedent which survive whether arising in contract, tort or otherwise, funeral expenses, the expense of a tombstone, and costs and expenses of administration; (4) "Clerk" means clerk of the probate division of the circuit court; (5) "Code" or "probate code" means chapters 472, 473, 474 and 475, RSMo; (6) "Court" or "probate court" means the probate division of the circuit court; (7) "Devise", when used as a noun, means a testamentary disposition of real or personal property or both; when used as a verb it means to dispose of real or personal property or both by will; (8) "Devisee" includes legatee; (9) "Distributee" denotes those 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 , RSMo. upon election to take against the will; (10) "Domicile" means the place in which a person has voluntarily fixed his abode, not for a mere special or temporary purpose. but with a present intention of remaining there permanentiy or for an indefinite time; (11) "Estate" means the real and personal property of the decedent or ward. as from time to time changed in form by sale, reinvestment or otherwise, and augmented by any accretions and additions thereto and substitutions therefor, and diminished by any decreases and distributions therefrom; (12) "Exempt property" means that property of a decedent's estate which is not subject to be applied to the payme-' ~t claims, charges, legacies or bequests as described i~ ~.' ::ion , RSMo; (13) "Fiduciary" includes executor, administrator, guardian, conservator, and trustee; (14) "Heirs' means those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the real and personal property of a decedent on his death intestate; (15) "Interested persons" mean heirs, devisees, spouses, creditors or any others having a property right or claim against the estate of a decedent being administered and includes children of a protectee who may have a property 27

29 right or claim against or an interest in the estate of a protectee. This meaning may vary at different stages and different parts of a proceeding and must be determined according to the particular purpose and matter involved; (16) "Issue" of a person, when used to refer to persons who take by intestate succession, includes adopted children and all lawful lineal descendants, except those who are the lineal descendants of living lineal descendants of the intestate; (17) "Lease" includes an oil and gas lease or other mineral lease, but does not include month-to-month or year-to-year tenancies under oral contracts; (18) "Legacy" means a testamentary disposition of personal property; (19) "Legatee" means a person entiued to personal property under a will; (20) "Letters" include letters testamentary, letters of administration and letters of guardianship; (21) "Lien" includes all liens except general judgment, execution and attachment liens; (22) "Lineal descendants" include adopted children and their descendants; (23) "Mortgage" includes deed of trust, vendor's lien and chattel mortgage; (24) 'Person" includes natural persons and corporations; (25) Personal property" includes interests in goods, money, choses in action, evidences of debt, shares of corporate stock, and chattels real; (26) "Personal representative" means executor or administrator. It includes an administrator with the will annexed, an administrator de bonis non, an administrator pending contest, an administrator during minority or absence, and any other type of administrator of the estate of a decedent whose appointment is permitted. It does not include an executor de son tort; (27) 'Property" includes both real and personal property; (28) "Real property" includes estates and interests in land, corporeal or incorporeal, legal or equitable, other than chattels real; (29) "Registered mail" includes "certified mail" as defined and certified under regulations of the United States Postal Service; (30) 'Will' includes codicil; it also includes a testamentary instrument which merely appoints an executor and a testamentary instrument which merely revokes or revives another will. undivided one-half interest against contention that testator indicated intent that land go to his descendants. Thomas v. Higginbotham (Mo.), 318 SW2d 234. (1959) Evidence held to establish domicile in state of Louisiana by prior resident of this state who had died, for the purpose of determining where his estate should be dispersed. In re Toler's Estate (Mo.), 325 SW2d 755. (1965) As used in subsection 2 of , the word 'debts' is the substantial equivalent of 'claims, which is defined in this section, subdivision (4), as including liabilities of the decedent which survive whether arising in contract or in tort or otherwise, funeral expenses, the expense of a tombstone and costs, and expenses of administrator. State v. Hollenbeck (A.), 394 SW2d 82. (1974) Provision in will that executor gave to pastor of a named church a sum for masses to be said entitled the pastor to receive as a gift personal property and he was a Iegatee' and a necessary party to suit to set aside will. Kane v. Mercantile Trust Co. National Association (Mo.), 513 SW2d Fraud under probate code remedy.. procedure Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this code, or if fraud is used to avoid or circumvent the provisions or purposes of this code, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person, other than a bona fide purchaser, benefiting from the fraud, whether innocent or not. Any proceeding must be commenced within two years after the discovery of the fraud, but no proceeding may be brought against one not a perpetrator of the fraud later than ten years after the time of commission of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during his lifetime which affects the succession of his estate. HISTORY: L 1980 S.B. 637 (1955) Will construed and words "descendants of a deceased child of testator held to include an adopted child of testator's deceased son. Hayes v. 51. Louis Union Trust Co. (Mo.), W.2d649. (1958) Devise of undivided one-half interest in realty to testator's son for life and at his death to his children absolutely but if he should die without issue living then to other son for life and at his death to other son's 'heirs at law' was construed according to statute of descent and distribution in effect when second life tenant died rather than statute in effect at execution of will and testator's death and thus widow of second life tenant took one-half of the 28

30 Jurisdiction of probate division of circuit court The probate division of the circuit court may hear and determine all matters pertaining to probate business, to granting letters testamentary and of administration, the appointment of guardians and conservators of minors and incapacitated and disabled persons, settling the accounts of personal representatives and conservators, and the sale or leasing of lands by personal representatives and conservators, including jurisdiction of the construction of wills as an incident to the administration of estates, of the determination of heirship, of the administration of testamentary and inter vivos trusts, of disability and incapacity proceedings as provided by law and of such other probate business as may be prescribed by law. HISTORY RSMo A.L 1955 p A.L 1978 H.B A.L 1983 S.B 44 & 45 NOTES PRIOR REVISIONS: : : (1959) Court stated 'the General Assembly, in its representative capacity, is free to exercise all the primary power of the people in conferring such uniform equitable jurisdiction' referring to jurisdiction in 'matters pertaining to probate business'. North v. Hawkinson (Mo.), 324 SW.2d 733. (1962) Judgment of trial court ordering writ of mandamus to compel probate judge to assume jurisdiction of testamentary trust reversed and supreme court refused to rule on constitutionality of provision conferring jurisdiction of testamentary trusts on probate court where record did not show facts sufficient to present issues for determination. State v. Bradley (Mo.). 358 SW.2d 38. (1964) Appointment by probate court of successor trustee of testamentary trust held void and sections and declared unconstitutional insofar as they purport to grant jurisdiction over testamentary trusts to the probate court. First National Bank of Kansas City v. Mercantile B. & T. Co. (Mo.), 376 SW.2d State may be party to proceedinas- service Proceedings may be conducted under section , RSMo, or any other section of chapters 472 and 473, RSMo, when the state of Missouri or any department or agency thereof is a necessary or proper party defendant or interested therein, directly or indirectly, as devisee, claimant by way of escheat, claimant as creditor, or otherwise. Service of process and notices upon the state of Missouri or any department or agency thereof may be made by delivery to the prosecuting attorney of the county. HISTORY: L p , A.L 1980 S.B. 637 EFFECTIVE Effective Powers of court.. executions, when returnable--service of process The probate division of the circuit court has the same legal and equitable powers to effectuate and to enforce its orders, judgments and decrees in probate matters as circuit judges have in other matters and its executions shall be governed by chapter 513, RSMo, and the applicable supreme court rule, except that all executions shall be returnable within thirty days unless otherwise ordered by the court. All process of the court may be served anywhere within the territorial limits of the state. HISTORY: L 1955 p , A.L 1978 H.B. 1634, A.L S.B. 637 EFFECTIVE Effective (1961) This section is not a grant to probate courts of jurisdiction in purely equitable matters. Whatever equitable powers a probate court may exercise by virtue of this section must be employed in the discharge of its jurisdiction in probate matters. Stark v. Moffit (A.), 352 SW.2d 165. (1963) In re Meyers' Estate (A.), 368 SW.2d 925. (1964) Where deceased, collecting agent of gas company, wrongfully deposited collections in his personal account, deposit created trust fund for benefit of gas company and the tracing of collections into the bank account was a proper exercise of equitable powers by the probate court. In re Meyers' Estate (Mo.), 376 SW.2d 219. (1987) Order granting special notice of probate hearings to interested person pursuant to this section was not subject to interlocutory appeal. Cordes v. Caldwell, 731 S.w.2d 463 (Mo.App. 1987) 29

31 Costs In all suits and other proceedings in the probate division of the circuit court, the party prevailing shall recover his costs against the other party, except in those cases in which a. different provision is made by law. Whenever costs are given against executors and administrators, the estate shall pay the costs. Parties presenting claims against estates, for the same causes and in the same manner, may be ruled to give security for costs, as is provided in practice in civil cases. HISTORY: RSMo , A.l p , A.l H.B.1634 PRIOR REVISIONS: ; ; EFFECTIVE Effective CROSS REFERENCES Probate fees. RSMo Court open, whennsessions.. time for acts The court shall be open for the transaction of probate business at all reasonable hours. The judge of the probate division of circuit court may by order provide for the holding of sessions of the court at regular recurring times for the purpose of hearing claims, settlements and other m.att~rs but no such order shall prohibit the hearing and determination of any proceeding before the court at any time when necessary to promote the ends of justice nor shall such order be inconsistent with rules of court. If the last day on which any act is required to be performed in the court falls on any day on which the court is not open the same shall be performed on the next succeeding day on which the court is open. HISTORY: L p , A.L 1978 H.B Disqualification of judge No judge of probate shall sit in a case in which he is interested, or in which he is biased or prejudiced against any interested party, or in which he has been counselor a material witness, or when he is related to either party, or in the determination of any cause or proceeding in the administration and settlement of any estate of which he has been personal representative, conservator, or guardian, when any party in interest objects in writing, verified by affidavit; and when the objections are made, the cause shall be transferred to another judge, in accordance with the rules of civil procedure relating to change of judge, who shall hear and determine same; and the clerk of the circuit court or division clerk shall deliver to the probate division of the circuit court a full and complete transcript of the judgment, order or decree made in the cause, which shall be kept with the papers in the office pertaining to such cause. HISTORY: RSMo , A.L 1955 p , A.L H.B. 1634, A.l S.B. 44 & 45 PRIOR REVISIONS: ; ; (1980) The power to disqualify a judge as to any further. proceedings with an estate is to be liberally construed a~d Will apply to all pending matters to preclude the judge from resuming jurisdiction. State ex rei. Campbell v. Kohn (A.), 606 S.w.2d Powers of clerk 1. The clerk of the probate division may take acknowledgments, administer oaths, and certify and authenticate copies of instruments, documents and records of the court, and perform the usual functions of his office. 2. Subject to control of the judge of the probate division, the clerk of the probate division may issue notices and make all necessary orders for the hearing of any petition or other matter to be heard in the court. 3. If a matter is not contested, the clerk may hear and determine it and make all orders, judgments and decrees in connection therewith which the judge could make, subject to be set aside or modified by the judge at any time within thirty days thereafter; but if not set aside or modified, the orders, judgments and decrees made by the clerk shall have the same effect as if made by the judge. 4. The judge may act as clerk ex officio, whenever the business of the court requires. 5. A seal is authorized for the probate division of the circuit court which shall be kept in the custody of the judge or the clerk of the probate division. HISTORY: l p , A.l H.B Documents filed with court. form content 1. Except as otherwise specifically provided in this code or by supreme court rule, every document filed with the court under this code, including but not limited to applications, petitions, claims, and demands for notice, shall be signed by or on behalf of the petitioner or claimant, and shall contain a statement that it is made under oath or affirmation and that its representations are true and correct to the best knowledge and belief of the person signing same, subject to the penalties of making a false affidavit or declaration. 2. No defect of form or substance in any document invalidates any proceedings after judgment on the document. HISTORY: L p , A.L S.B

32 Objections to petition, form Any interested person, on or before the day set for hearing, may file written objections to a petition previously filed, and, upon special order or general rule of the court, objections to a petition shall be filed in writing as a prerequisite of being heard by the court. HISTORY: L p Notice court may reguireoohow delivered 1. No notice to interested persons need be given except as specifically provided for in this code or as ordered by the court. When no notice is required by this code, the court may require such notice as it deems desirable by a general rule or by an order in a particular case. 2. Except as otherwise specifically provided by law, all notices required by this code or the court to be served upon any person shall be served as the court directs, by rule or otherwise, in such manner and at such time as to constitute reasonable notice, in any of the following manners: (1) By delivering to the person, including a minor or a disabled or incapacitated person not known to have a legally appointed guardian or conservator, a copy of the notice personally or by leaving a copy at his dwelling house or usual place of abode with some person of his family over the age of fifteen years, or by delivering a copy to an agent authorized by appointment or required by law to receive service of process; (2) By publishing a copy of the notice in some newspaper qualified to publish legal notices under chapter 493, RSMo, and having general circulation within the county in which the court is held for the time required by law or court rule or order. If no time is fixed by law or by rule of court, the notice shall be published once each week for four consecutive weeks, the last insertion being at least seven days before the hearing. The personal representative, or other person at whose instance any notice by publication is required, may designate the newspaper in which such notice is to be published; but as to any notice which is necessary to the jurisdiction of the court, the clerk shall designate the newspaper unless the personal representative or other person has made such designation and so informed the clerk in writing before the time for commencement of publication. If there is no qualified newspaper published in the county, the notice shall be published in some qualified newspaper published in an adjoining county which has a general circulation within the county in which the court is held or the notice shall be given by posting copies thereof in ten public places in the county as the court directs. If a notice, which is required to be published once a week for more than one time, is published in a daily newspaper, each publication after the first shall appear on the same day of the week on which the first publication was made; (3) By registered or certified mail, addressed to the person to be notified at his address within the United States, deposited in the United States mail, with all postage charges prepaid, and, if ordered by the court, with a return receipt requested; (4) By ordinary mail, deposited in the United States mail with all postage charges prepaid at the first class rate, in a sealed envelope or on a post or postal card, properly addressed, bearing the name and return address of the sender and otherwise inscribed in accordance with the regulations of the United States Postal Service to require a return thereof to the sender upon nondelivery to the addressee; (5) By any combination of the above or as may be provided by the rules of civil procedure. 3. Service by publication is notice to all heirs and devisees, whether known or unknown or whether residents or nonresidents of this state, spouses and to all creditors and other persons interested in the estate. 4. Provisions in this code for notice to interested persons, other than by publication, do not require such notice to creditors unless otherwise specifically required by the code or by the court. 5. Service of notice upon a minor or a disabled or incapacitated person having a legally appointed guardian or conservator, if the fact of the guardianship or conservatorship is known to the person requiring such service or is disclosed by the court files or records, shall be made by serving such guardian or conservator in the manner provided herein for service upon other persons. Service upon a corporation may be made in the manner provided by law for the service of summons on corporations in civil actions. 6. In all cases where service by publication is required but personal service or service by registered or certified mail is not ordered, all interested persons whose names and addresses appear in the court files or records, including creditors only when ordered by the court, shall be served by ordinary mail. Failure in any such case to mail any notice or failure of any interested person to receive any mailed notice does not invalidate any order of the court or deprive the court of jurisdiction. 7. Personal service and service by registered or certified mail may be made by any competent witness, except that service by mail of any process, order or notice issued by the court shall be made by the clerk, or, if personal service is required, by the sheriff. Service by publication and by ordinary mail, except those required by section , RSMo, shall be made by the clerk when requested in writing by the party requiring same, and when furnished with the necessary information therefor. 8. If an attorney has entered his appearance in writing for any party in any probate proceeding or matter pending in the 31

33 court, all notices required to be served on the party in the proceeding or matter may be served on the attorney and such service shall be in lieu of service upon the party for whom the attorney appears. Service on an attorney may be made by ordinary mail or by leaving a copy of any notice or paper at his office with his clerk or with an attorney employed by or associated with the attorney to be served. HISTORY: L p , A.L p. 829, A.L S.B. 637, A.L S.B. 44 & 45 (1962) Weekly newspaper did not forfeit right theretofore vested in it to publish legal notices by suspending publication the last week in December of one year for vacation purposes and where it resumed continuous weekly publications after the procedure was questioned. State ex rei. Henderson v. Proctor (Mo.), 361 S.w.2d Proof of service Proof of service in all cases requiring notice whether by ~ublication, mailing or otherwise, shall be filed before the hearing. Service made by a private person shall be proved by the affidavit of the person or by acknowledgment of service; service made by the clerk, sheriff or other official shall be proved by certificate or return of service. Proof of service by publication shall be made in the form of the affidavit prescribed by section , RSMo. In the case of service by registered or certified mail, where the court requires a return receipt. the return receipt shall be attached to the proof of service if a receipt has been received; if no receipt has been received, or in case a notice served by ordinary mail is returned to the sender, the court may, in its discretion, order further service on the party Waiver of notice Any person legally competent may in person or by attorney waive in writing any notice required by this code or by rule or order of court. A personal representative may make waiver either in person or by attorney. A guardian of the estate, conservator, or a guardian ad litem may make a waiver on behalf of his protectee or ward, and a trustee may make a waiver on behalf of the trust. A consul or other representative of a foreign government, whose appearance has been entered as provided by law on behalf of any person residing in a foreign country, may make waiver of notice on behalf of such person. Any person who submits to the jurisdiction of the court in any hearing waives notice thereof. HISTORY: L p , A.l p. 829, A.L S.B. 44 & Waiver of legal requirements, when- limitation on waiver Any heir, devisee, or the guardian or conservator of any heir or devisee under disability then interested in the estate may waive, in writing, any requirement imposed upon the personal representative by the provisions of chapter 472, 473, or 474, RSMo, of this code; provided, that such waiver does not adversely affect the rights of creditors or other persons interested in the estate. HISTORY: L S.B. 637 HISTORY L p , AL p. 829, A.L S.B Amendment of proof of service At any time in its discretion and upon such terms as it deems just. the court may allow any process, return or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued. HISTORY: L p A 32

34 Recordkept adversary probate proceeding defined 1. A record shall be kept in any adversary probate proceeding in a probate division of the circuit court. At the discretion of the judge, but in compliance with the rules of the supreme court, the record may be a stenographic record or one made by the utilization of electronic, magnetic, or mechanical sound or video recording devices. 2. "Adversary probate proceeding" as used in this section and in section means any proceeding brought pursuant to any provision of chapters , 474, and 475, RSMo, which requires, as a condition precedent to an entry of an order or judgment on the merits, notice of hearing to persons interested in the proceeding, except that proceedings to sell real property or to make final settlement and except that notices that letters have been granted, for unknown heirs. to file interim settlements, of the right of the surviving spouse to elect to take against the will and in guardianship estates in which the Veterans Administration is a party in interest as to petitions by the conservator to disburse funds and as to settlements of conservators shall not be deemed to be adversary unless and until an interested person files objections to the action proposed or the account stated. An "adversary probate proceeding" shall also mean any other probate proceeding determined by the judge of the probate division to be an adversary proceeding. 3. The judge on his motion, or on the request of an interested person, may direct the keeping of a record of any hearing in a probate proceeding. The judge in his discretion may require the party requesting the record to give security for the payment of the costs thereof and may assess the costs of making the record against any party to the proceedings. HISTORY: L p , A.L H.B 1634, AL 1986 H.B RSMo, or civil rule 55 applicable to a particular adversary probate proceeding. 2. If a proceeding is already commenced when the court determines it to be adversary, the court may, on its own motion or on motion of any interested person, enter an order specifying the appropriate provisions of chapter 509, RSMo, or civil rule 55, which shall govern the proceeding: 3. The civil code of Missouri and the rules of civil procedure shall govern all other actions or proceedings which may be heard by a judge of the probate division pursuant to assignment or otherwise, except as otherwise provided by law. HISTORY: L H.B. 1634, A.L H.B Vacation and modification of judgments For good cause, before the expiration of the period allowed for appeal after the order of final distribution of the administration of the estate of a decedent or ward, the court may vacate or modify its orders, judgments and decrees, or grant a rehearing therein, except that no such power shall exist as to any orders, judgments or decrees from which an appeal has been taken, prior to a final disposition thereof on such appeal. or to set aside the probate of a will after the time allowed for contest thereof. No vacation or modification under this section affects any act done or any right acquired in reliance on any such order, judgment or decree. HISTORY: L p (1957) Motion to cancel and revoke let1ers of administration held direct and not collateral attack on order granting same in view of this section. In re Estate of Dugan (A.), 309 SW2d Proceedings to be conducted in accordance with rules of procedure order after action commenced 1. An adversary probate proceeding shall be governed by the civil code of Missouri and the rules of civil procedure; except that: (1) Where the probate code or any other statute contains a provision prescribing practice, procedure or pleading, applicable to the pending proceeding, the provisions of the probate code or such statutes shall govern; and (2) The provisions of chapter 509, RSMo, and civil rule 55 shall not apply unless specifically made applicable by a provision in the probate code or unless the court enters an order designating all or specific provisions of chapter 509, 33

35 Appealnwhen grounds for 1. Any interested person aggrieved thereby may appeal to the appropriate appellate court from the order, judgment or decree of the probate division of the circuit court in any of the following cases: (1) On the allowance of any claim against an estate exceeding one hundred dollars; (2) On all settlements of the personal representative; (3) On all apportionments among creditors, legatees or distributees; (4) On all orders directing the payment of legacies, making distribution or making allowances to the surviving spouse or unmarried minor children; (5) On all orders for the sale of assets of the probate estate; (6) On all orders for the sale of real estate; (7) On judgments for waste; (8) On proceedings to recover balances escheated to the state; (9) On all orders revoking letters testamentary or of administration; (10) On orders making allowances for the expenses of administration; (11) On orders for the specific execution of contracts; (12) On orders compelling legatees and distributees to refund; (13) On all orders denying any of the foregoing requested actions; (14) In all other cases where there is a final order or judgment of the probate division of the circuit court under this code except orders admitting to or rejecting wills from probate. 2. No appeal shall be allowed from any order or denial of an order made by the clerk under section unless a motion to modify or vacate such order has been denied by the court, but no such motion is necessary to an appeal from any order made, denied or refused by the judge. (1969) There is no right of appeal from a probate court order vacating a void judgment. State ex rei. Travelers Indemnity Co. v. Swink (A.), 440 S.w.2d 152. (1971) A natural mother qualifies as an 'interested person' in the appointment of a guardian for the child's estate, and, having a right to such appointment 'if otherwise qualified' a mother would be aggrieved by a final order of the probate court which disqualified her from that office with right of appeal to circuit court. State ex rei. Pope v. Lisle (A.), 469 S.w.2d 841. (1974) Held that order for partial compensation of attomey was not a final judgment and was not appealable. In re the Estate of Ritter (A.), 510 S.W.2d 188. (1974) Held that an order to sell personal property in order to satisfy a tax lien is not an appealable order under this section. Poletti v. Estate of Poletti (A.), 510 SW.2d 850. (1992) Where court issued order advising that it would issue letters of administration to decedent's putative son and denied motion of decedent's family to prevent such appointment, such order is not appealable. Family did not wait until letters were issued and then move to revoke the letter. Statute authorizes an appeal of an order denying the revocation of letters. Matter of Nocita, 845 SW,2d 574 (Mo. App. ED.). HISTORY: RSMo , A.L p , A.L p A.L H.B. 1634, A.L S.B. 637 PRIOR REVISIONS: ; ; EFFECTIVE Effective (1966) The right to appeal and whether an appellant is a party aggrieved within the meaning of and are jurisdictional questions which may be raised at any time and by the court itself. In re Fusz' Estate (Mo.), 397 SW.2d 595. (1967) For a party to have the right of appeal as 'aggrieved' by the judgment he must have a direct pecuniary interest in the result of the litigation. In re Estate of Soengen (A.), 412 SW.2d

36 Appeals from orders as to mental condition"procedure.. operates as supersedeas, when.. appointment of guardianureview 1. Appeals shall be allowed from the probate division of the circuit court to the appropriate appellate court in any case in which a final adjudication in an investigation of the mental condition of any person alleged to be disabled, incapacitated, or mentally ill has been made. The appeal may be made by the petitioner who applied for such adjudication, or by the person alleged to be disabled, incapacitated, or mentally ill, or by any relative of such person, or by any reputable citizen of the county in which the hearing occurred, or by an attomey for any of the foregoing persons. Such an appeal shall not operate as a supersedeas pending the determination of such appeal of any such adjudication or any order or judgment of the probate division based upon such adjudication except to the extent it is specifically provided by the probate division in an order entered at the time of or after the notice of appeal has been filed. The probate division shall in such order allow supersedeas of any order or judgment of commitment or confinement of such person unless it is found that such person by reason of his mental condition is so far disordered in his mind as to endanger his own person or the person or property of others; and the probate division may, in its discretion, allow supersedeas of such adjudication and other orders and judgments of the probate division based thereon, in whole or in part. 2. If the probate division of the circuit court finds that the alleged disabled person is incapable of managing his affairs and refuses to allow supersedeas, the probate division of the circuit court may appoint a guardian ad litem to collect, protect. and preserve the alleged disabled person's assets and, on order of the circuit court, disburse funds for the necessary support and maintenance of the alleged disabled person and those members of his family who are dependent upon him. The appointment of the guardian ad litem as well as the decision of the probate division of the circuit court as to supersedeas may be reviewed by the appellate court on motion by an interested party at any time after the notice of appeal has been filed Time for appeal All appeals shall be taken within the time prescribed by the rules of civil procedure relating to appeals. HISTORY: RSMo , A.L 1955 p , A.L H.B.1634 PRIOR REVISIONS: ; ; EFFECTIVE Effective Appeals staved or consolidated, when When an appeal is taken from any appealable order, judgment or decree in the administration of a decedent's estate, made prior to the decree of final settlement and distribution, the probate division of the circuit court, in its discretion. and if no person is prejudiced thereby, may order that the appeal be stayed until the decree of final distribution is made and that the appeal be heard only as a part of any appeal which may be taken from the decree of final settlement and distribution. This section does not apply to guardianships. HISTORY: L p , A.L H.B Appeals, procedure Appeals shall be taken in accordance with the rules of civil procedure relating to appeals. HISTORY: RSMo , AL p , A.L p. 633, A.L H.B PRIOR REVISIONS: ; ; EFFECTIVE Effective HISTORY: RSMo , A.L p , A.L p. 632, A.L 1978 H.B. 1634, A.L 1980 S.B. 637, A.L 1983 S.B. 44 & 45 PRIOR REVISIONS:

37 Records of probate division of circuit court may be kept by means other than bound volumes.. reading equipment, index to be provided 1. The court shall keep the following: (1) AA index in which files, pertaining to estates of deceased persons, shall be indexed under the name of the decedent. and those pertaining to guardianships and conservatorships under the name of the ward and protectee; after the name of each file shall be shown the file and register number and the book and page of the register; (2) A register, arranged in numerical order, in which shall be listed in chronological order under the file and register number and the name of the decedent or ward or protectee, all documents filed or issued and all orders, judgments and decrees made pertaining to the estate, the date thereof, and a reference to the volume and page of any other book in which any record has been made of such order or document (3) An abstract of all judgments of other courts filed and of' all claims established in the probate division of the circuit court against the estate of each decedent which shall show their amount, date and class, and to whom payable; (4) A record of wills exhibited to be proven properly indexed, in which shall be recorded such wills, together with the proof thereof and the certificate of probate or rejection thereof; (5) A record of bonds, in which shall be recorded all bonds filed; (6) A record of letters, in which shall be entered all letters issued; (7) A record of inventories, in which shall be recorded all inventories and appraisements; (8) A record of settlements in which shall be recorded the accounts and settlements of all personal representatives, conservators, and guardians; (9) A record of probate proceedings, which shall contain all orders. judgments and decrees of the court; (10) A record of the minutes of the proceedings of the court. 2. All vouchers and receipts in any estate filed in the court may be destroyed on order of the court after they have been on file for a period of five years after final termination of administration proceedings in the estate. 3. Other provisions of law to the contrary notwithstanding, any records required to be kept by the probate division of the circuit court under subsection 1 of this section or by any other law may be kept and maintained by means other than bound volumes of paper pages, including such means as photography, microphotography, photostatic process, electros.tatic process, facsimile reproduction, perforated tape, magnetic tape or other electromagnetic means, electronic d~ta processing, machine readable media, graphic or video display, or a~y comb!nation thereof. All courts keeping records and information by any of the aforesaid means shall keep and have readily available to the public the necessary machines and equipment to present the records and information in a readily readable form; and, further, the courts shall properly and adequately index such records and information so that the same shall be readily retrievable. HISTORY: L p , A.L S.B. 81, A.L H.B. 1634, A.L S.B. 44 & ,290. Rules of evidence to apply.. exceptions specific rules In proceedings under this code the rules of evidence in circuit courts, including any relating to simultaneous deaths, are applicable unless specifically displaced by the code. In addition, the following rules relating to determination of death and status are applicable: (1) A certified or authenticated copy of a death certificate issued by an official or agency of the place where the death occurred is prima facie proof of the fact, place, date, time of death, and the identity of the decedent; (2) A certified or authenticated copy of any record or report?f a.go~ernmen.tal agency, domestic or foreign, that a person IS mlssmg, detained, dead. or alive is prima facie evidence sufficient to support a judicial finding, of the status and of the dates. circumstances, and places disclosed by the record or report; (3) A person who is absent for a continuous period of five years, during which time he has not been heard from, and whose ab~enc~ is. not satisfactorily explained after diligent search or mqulry, IS presumed to be dead. His death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier. HISTORY: L S.B. 637 EFFECTIVE Effective

38 Proceedings involving trusts estates minors disabled or incapacitated persons supervised settlements, procedure In judicial proceedings involving trusts or estates of decedents, minors, disabled and incapacitated persons, and in judicially supervised settlements, the following apply: (1) Interests to be affected shall be described in pleadings which give reasonable information to owners by name or class, by reference to the instrument creating the interest, or in other appropriate manner; (2) Persons are bound by orders binding others in the following cases: (a) Orders binding the sole holder or all coholders of a power of revocation or a presently exercisable general power of appointment, including one in the form of a power of amendment. bind other persons to the extent their interests, as objects, takers in default, or otherwise, are subject to the power; (b) To the extent there is no conflict of interest between them or among persons represented, orders binding a guardian bind the ward; orders binding a conservator bind the protectee; orders binding a trustee bind beneficiaries of the trust in proceedings to probate a will establishing or adding to a trust, to review the acts or accounts of a prior fiduciary and in proceedings involving creditors or other third parties; and orders binding a personal representative bind persons interested in the undistributed assets of a decedent's estate in actions or proceedings by or against the estate. If there is no conflict of interest and no conservator or guardian has been appointed, a parent may represent and bind his minor child; (c) An unborn or unascertained person who is not otherwise represented is bound by an order to the extent his interest is adequately represented by another party having a substantially identical interest in the proceeding; (3) Notice is required as follows: (a) Notice as prescribed by section shall be given to every interested person, or to one who can bind an interested person as described in paragraphs (a) and (b) of subdivision (2) above. Notice may be given both to a person and to another who may bind him; (b) Notice is given to unborn or unascertained persons, who are not represented under paragraph (a) or (b) of subdivision (2) above, by giving notice to all known persons whose interests in the proceedings are substanuaily identical to those of the unborn or unascertained persons; (4) At any point in a proceeding, a court may appoint a guardian ad litem to represent the interest of a minor, an incapacitated, disabled, unborn. or unascertained person, or a person whose identity or address is unknown, if the court determines that representation of the interest otherwise would be inadequate. If not precluded by conflict of interests. the same guardian ad litem may be appointed to represent several different persons or interests. HISTORY: L 1980 S.B. 637, AL 1983 S.B. 44 & Independent administration of decedents' estates application of probate code The relevant provisions of chapters 472 through 474, RSMo, apply to independent administrauon of decedents' estates to the extent that they are not inconsistent with sections to and , RSMo. HISTORY: L 1980 S.B. 634 EFFECTIVE Effective Approval of act or transaction in best interests of estate Notwithstanding any other provision of this chapter. chapter 473, RSMo, chapter 474, RSMo, and chapter 475, RSMo, to the contrary, upon a finding that an act or transaction was or is in the best interest of the estate, the court may approve. ratify, confirm and validate any act or transaction performed by the personal representative of the estate, without court authorization which the court would have had power under this chapter, chapter 473, RSMo, and chapter 474, RSMo, to authorize the personal representative to conduct. HISTORY: L 1993 S.B Power of court to confirm and validate acts--acts included The power of the court to approve, ratify. confirm and validate acts or transactions entered into by a personal representative of the estate without court authorization includes, without limitation, retention of real or personal property, compromises of claims by and against the estate, investments, purchases, sales, mortgages, exchanges, abandonment, leases of any duration, improvements, contracts to improve, contracts to sell, contracts to purchase, and contracts to exchange and grants of options, easements, profits or other rights with respect to land or other property. It also includes, without limitation, payment of a mortgage indebtedness on the real estate of the decedent out of the personal estate and purchase of real estate at a sale made under a mortgage, deed of trust, vendor's lien or other lien held by the decedent. HISTORY: L 1993 S.B

39 CHAPTER 473 PROBATE CODE ADMINISTRATION OF DECEDENTS ESTATES Venue 1. The will of any decedent shall be probated and letters testamentary or of administration shall be granted: (1) In the county in which the domicile of the deceased is situated; (2) If he had no domicile in this state then in any county wherein he left any property; except that when the major part of a nonresident decedent's estate in this state consists of real estate, the will shall be probated and letters testamentary or of administration shall be granted in the county in which the real estate or the major part thereof is located; (3) If the decedent had no domicile in this state and left no property therein. in any county in which the granting thereof is required in order to protect or secure any legal right. 2 If proceedings are commenced in more than one county, they shall be stayed except in the county where first commenced until final determination of venue in the county where first commenced. The proceedings are deemed commenced by the filing of an application for letters; and the proceedings first legally commenced extends to all of the property of the estate in this state. 3. All orders, settlements, trials and other proceedings pertaining to any estate shall be had or made in the county in which the letters were granted. HISTORY: RSMo L p AL S.B. 141 PRIOR REVISIONS: ; , ; ,548 (1961) When sections and are read together they clearly authorize the appointment of an administrator for the estate of a nonresident decedent to the end that plaintiffs in personal injury action could maintain such action against and obtain service upon the administrator. State ex rei. McCubbin v. Ginn (Mo.), 347 S.w.2d 119. Declaratory judgment, executor or administrator may obtain as to rights, RSMo ( Definition of terms and general provisions, Chap RSMo Disclaimers of property, Chap. 469, RSMo Durable power of attorney, RSMo to Foreign administrator, suits by, RSMo Mortgages, satisfaction by executor or administrator, RSMo to Nonprobate transfers, RSMo to Probate code, definitions, RSMo Public officer, executor or administrator of to deliver records, RSMo to Records of probate division, RSMo Savings accounts in insured savings and loan associations, investment in authorized, RSMo Tax assessment list, executor or administrator to give assessor, RSMo Character of proceeding--jurisdiction of court The administration of the estate of a decedent from the filing of the application for letter~ testamentary or of administration until the decree of final distribution and the discharge of the last personal representative is deemed one proceeding for purposes of jurisdiction. Such entire proceeding is a proceeding in rem. No notice is jurisdictional except the notice by publication provided in section , unless the provision requiring the notice expressly provides that the notice is jurisdictional. Whether the administration is supervised or independent, from the time of first publication of the notice provided in section , the probate division of the circuit court has in rem jurisdiction of all real and personal property of the decedent located within this state. HISTORY: L p , A.L p. 829, A.L S.B. 637 EFFECTIVE Effective (1966) Under present probate code, probate court acquires no more jurisdiction initially over an intestate's realty than it did under prior statutes. Clapper v. Chandler (Mo.), 406 S.w.2d 114. NOTES APPLICABLE TO ENTIRE CHAPTER c ~OSS REFERENCES: Administrators, profit on publication of :.. ces or advertisements prohibited, RSMo , Adversary probate proceeding defined for Chap. 473, RSMo Attachment proceeding, administrator made party, where, RSMo Bi-state development agency, bonds of, investment in authorized, RSM070.3n Cattle, female, sale by estate, brucellosis vaccination law special provisions. RSMo

40 Application for letters.. content 1. An application for letters testamentary or of administration shall state all of the following: (1) The name, age, sex, domicile, last residence address and the fact and date of death of the decedent; (2) The names, relationship to decedent, and residence addresses of the surviving spouse, heirs. devisees and legatees of the decedent. if any, and their birth dates, if minors; the names and addresses of the conservators of any minor or disabled heirs, legatees or spouse of the decedent, if known; and if applicant has reason to believe that there are any heirs or devisees who are mentally incapacitated or that there are other heirs or devisees but their names and addresses are unknown to him. he shall so state; (3) The probable value of the real and personal property; (4) If decedent had no domicile in this state. the location and the probable value of any land owned by him in this state at the time of his death, if any, and the probable value of the personal property within the state, so far as is known. which may be subject to administration in this state; (5) If the decedent died testate and the will has not been delivered to the court, the contents of the will, either by attaching a copy of it to the petition, or, jf the will is lost, destroyed or suppressed, by including a statement of the provisions of the will so far as known; (6) The names and residence addresses of the persons, if any, named as executors; (7) Where letters of administration on the estate of an intestate are sought, the name and residence address of the person for whom letters are prayed. and his relationship to the decedent or other facts, if any, which entitle such person to appointment; (8) The name and address of the attorney for the applicant; (9) That if letters are issued, the applicant will make a perfect inventory of the estate, pay the debts and legacies, if any, as far as the assets extend and the law directs, and account for and distribute or pay au assets which come into the possession of the personal representative, and perform all things required by law touching the administration of the estate; (10) Whether the application is for supervised or independent administration. 2. After letters have been granted on an estate, the personal representative or other interested person, if the information contained in the application required by subsection 1 is not complete or is no longer correct, shall communicate in writing promptly to the clerk such facts known to him as are necessary to complete or correct the same. HISTORY: L p , A.L p. 829, A.L S.B. 637, A.L S.B. 117, A.l S.B. 44 & If no application filed, others may request administration or probateupetition, form, contents--hearing, notice, orders 1. If no application for letters testamentary or of administration is filed by a person entitled to such letters pursuant to section within twenty days after the death of a decedent, then any interested person may petition the probate division of the circuit court which would be the proper venue for the administration of the estate of such decedent for the issuance of leiters testamentary or of administration. For purposes of this section, in addition to persons provided for in subdivision (15) of section , RSMo, any person who has attached a claim supported by an affidavit setting forth the basis upon which such person has a claim against the decedent shall be an interested person. 2. The petition must be filed within one year after the date of death of the decedent and shall include the following: (1) The decedent's name, the address of the decedent's last residence and the date of death of the decedent; (2) If a written will of the decedent has been presented for probate, the names and addresses of the personal representatives designated in such will; and (3) The names, addresses and relationships to the decedent of the decedent's heirs as is known to, or can be reasonably ascertained by, the petitioner. 3. Within fifteen days from the date of fijing, the petition shall be set for hearing to determine who should be directed to apply for letters testamentary or of administration, and not to determine the validity of any claim. Notice of the hearing shall be served upon all interested persons in the manner and within such time as directed by the court. Upon hearing of the petition, the court shall enter such order or orders as it deems appropriate, including any of the following: (1) An order directing the person found by the court to be entitled to the issuance of letters testamentary or of administration to apply for and qualify for such leiters within such time as is allowed by the court, and in default of such timely application and qualification, upon application, the court shall issue leiters of administration to some other person found suitable by the court; (2) An order refusing letters on the estate; or (3) An order dismissing the petition. HISTORY: RSMo , A.L p , A.L p. 829, A.L S.B. 637, A.l S.B. 494 PRIOR REVISIONS: ; ; EFFECTIVE Effective

41 (1961) Where appointment of an administrator who had no interest in the estate was made eleven months after decedent's death on application of attorney for widow having wrongful death action against decedent's estate, the burden was on those opposing the appointment to establish that persons entitled to administer were residents and otherwise qualified. In re Norman's Estate (A.), 347 SW.2d 908. (1962) In subsequent proceeding in prohibition to restrain action for damages for wrongful death against administrator was void for lack of finding of nonresidence of widow, judgment in 'In re Norman's Estate' held res judicata and preliminary writ quashed. State ex rei. Farmer v. Allison (A.), 359 SW.2d 245. (1992) Personal representatives did not waive and renounce their right to apply for letters testamentary by filing their petition after the twenty days allowed by the statute. Statute does not limit the time in which a named executor must file the application for leiters in probate; rather, statute merely ensures that where executor has failed to file in a in a timely manner, other interested persons should be free to do so Matter of Estate of Bloemker, 829 SW,2d 7 (Mo. App. E.D.). interlocutory appeal. Cordes v. Caldwell. 731 S.w.2d 463 (MoApp 1987) , Court or clerk to grant letters The probate division of the circuit court, or the clerk thereof, subject to modification or revocation by the court, shall grant letters testamentary and of administration. HISTORY RSMo , A.L p , A.L HS NOTES PRIOR REVISIONS ; 1919 I; Request for special notice of hearings At any time after the issuance of letters, any person interested in the estate, in person or by attorney, may serve upon the executor or administrator, or upon his attorney, and file with the clerk of the court where the proceedings are pending, with a written acknowledgment of or proof of service, a written request, stating that he desires written notice by ordinary mail of the time and place of all hearings on the settlement of accounts, on final distribution, and on any other matters for which any notice is required by law, by rule of court or by an order in the particular case. The applicant for notice shall include in his written request his post-office address or that of his attorney. Unless the court otherwise directs, upon filing the request the clerk shall give the applicant notice of all hearings for which any notice is required as aforesaid, or of such of those hearings as he designates in his request. HISTORY: L p (1987) Order granting special notice of probate hearings to interested person pursuant to this section was nol subject to 40

42 Notice of letters duty of clerk publication.. form The clerk, as soon as letters testamentary or of administration are issued, shall cause to be published in some newspaper a notice of the appointment of the personal representative, in which shall be included a notice to creditors of the decedent to file their claims in the court or be forever barred. The notice shall be published once a week for four consecutive weeks. The clerk shall send a copy of the notice by ordinary mail to each heir and devisee whose name and address are shown on the application for letters or other records of the court, but any heir or devisee may waive notice to such person by filing a waiver in writing. The personal representative may, but is not required to, send a copy of the notice by ordinary mail or personal service to any creditor of the decedent whose claim has not been paid, allowed or disallowed as provided in section Proof of publication of notice under this section and proof of mailing of notice shall be filed not later than ten days after completion of the publication. The notice shall be in substantially the following form: To all persons interested in the estate of..., decedent: On the...,.. day of..., 19.., (the last will of the decedent having been admitted to probate )... "... was appointed the personal representative of the estate of..., decedent, by the probate division of the circuit court of... County, Missouri. The business address of the personal representative is..., and the personal representative's attorney is... of.... All creditors of the decedent are notified to file claims in court within six months from the date of first publication of this notice or if a copy of this notice was mailed to, or served upon, such creditor by the personal representative, then within two months from the date it was mailed or served, whichever is later, or be forever barred to the fullest extent permissible by law. Such sixmonth period and such two-month period do not extend the limitation period that would bar claims one year after the dec edent's death, as provided in section , RSMo, or any other applicable limitation periods. Nothing in section , RSMo, shall be construed to bar any action against a decedent's liability insurance carrier through a defendant ad litem pursuant to section , RSMo. Receipt of this notice by mail should not be construed by the recipient to estate. The nature and extent of any person's interest, if any, can be determined from the files and records of this estate in the pro bate division of the circuit court of... County, Missouri. Date of the decedent's death was..., Date of first publication is..., Clerk of the Probate Division of the Circuit Court ""'''''''''''''' County, Missouri HISTORY: L p , A.L S.B. 86, A.L HB. 1634, A.L S.B. 637, A.L H.B. 369, A.L H.B. 145, A.L S.B. 88, A.l S.B. 494 EFFECTIVE Effective (1962) Weekly newspaper did not forfeit right theretofore vested in it to publish legal notices by suspending publication the last week in December of one year for vacation purposes and where it resumed continuous weekly publications after the procedure was questioned. State ex rei. Henderson v. Proctor (Mo.), 361 SW2d 802. (1985) Held, due process does not require any more than publication notice to a creditor that a decedent's estate is being administered and the notice provisions of sections and , RSMo, are constitutional. Estate of Busch v. Ferrell Duncan Clinic (Mo. banc) 700 SW2d 87. indicate that the recipient necessarily has a beneficial interest in the 41

43 Successor need not publish notice. when If notice is given of the first letters granted on an estate in accordance with section 473.D33, no notice of letters thereafter granted to a successor executor or administrator is required. HISTORY: RSMo , A.L p PRIOR REVISIONS: : : Notice where there are no known heirs When an intestate has left no known heirs, the clerk shall also publish a notice, once a week for six consecutive weeks in at least two newspapers, published in the places designated by the court. containing the name of the intestate, a description of his person, the time and place of his death, the place of his nativity, if known, and the appraised amount of his estate. HISTORY: RSMo , A.L p PRIOR REVISIONS: : : Will of decedent. where delivered--wills found in safe deposit boxes, how delivered--refusal to deliver. how handled 1. After the death of the testator, the person having custody of his will shall deliver it 10 Ihe probate division of the circuit court which has jurisdiction of the estate or to the probate division of the circuit court of the county where the will is found and if the latter, that court shall keep a copy and deliver the original will, by certified mail, to the probate division of the circuit court which has jurisdiction of the estate. 2. Wills of decedents found in safe deposit boxes are in the custody of the depository for the purposes of this section and said depository may make a copy of the will before delivering it to the proper court. 3. If the probate division of the circuit court is satisfactorily informed that any person has in his possession the will of any testator, and refuses to produce the same, the court may summon the person, and compel him, by attachment and commitment, to produce the same. HISTORY: RSMo , A.L p , A.L S.B. 85. A.L H.B PRIOR REVISIONS: : : Certificate of probate or rejection 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. HISTORY: RSMo , A.L p PRIOR REVISIONS: : ; Wills. presentment for probate. time limited.. presented, defined 1. A will, to be effective as a will, must be presented for and admitted to probate. 2 When used in chapter 472, RSMo, chapter 474, RSMo, chapter 475, RSMo, and this chapter, the term presented" means: (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, suppressed or otherwise not available, setting forth the reason such will is not available and setting forth the provisions of such will so far as known: and (2) One of the following: (a) An affidavit pursuant to section , which requests such will be admitted to probate; or (b) A petition which seeks to have such will admitted to probate: or (c) An authenticated copy of the order admitting such will to probate in any state, territory or district of the United States, other than this state. 3. No proof shall be taken of any will nor a certificate of probate thereof issued unless such will has been presented within the applicable time set forth as follows: (1) In cases where notice has previously been given in accordance with section of the granting of letters on the estate of such testator, within six months after the date of the first publication of the notice of granting of letters, or within thirty days after the commencement of an action under section to establish or contest the validity of a will of the testator named in such will, whichever later occurs; (2) In cases where notice has not previously been given in accordance with section of the granting of letters on the estate of testator, within one year after the date of death of the testator; (3) In cases involving a will admitted to probate in any state, territory or district of the United States, other than this 42

44 state, which was the decedent's domicile, at any time during the course of administration of the decedent's domiciliary estate in such other state, territory or district of the United States. 4. A will presented for probate within the time limitations provided in subsection 3 of this section may be exhibited to be proven, and proof received and administration granted on such will at any time after such presentation. 5. A will not presented for probate within the time limitations provided in subsection 3 of this section is forever barred from admission to probate in this state. 6. Except as provided in section , RSMo, no letters of administration shall be issued unless application is made to the court for such letters within one year from the date of death of the decedent. HISTORY: RSMo , A.L p , A.L S.B. 85, AL 1973 H.B 216, A.L H.B. 1634, A.L S.B. 494 PRIOR REVISIONS: ; ; EFFECTIVE Effective (1964) The mere filing of a will does not 'present' the will to the probate court. The jurisdiction of the court attaches when the will is presented to the court by a proper petition by some person entitled to take such action. State v. Hensley (A.), 385 S. W.2d 820. (1965) Held that a notice of grant of letters testamentary begins a continuous in rem proceeding and that the rejection of the alleged will on which they were granted does not deprive the court of jurisdiction and the limitation on actions provided in this section operates from the publication of the original notice. State v. Cleveland (Mo.), 387 SW2d 556. (t 966) As jurisdiction of circuit court in will contest is only derivative from probate court, it is without jurisdiction to entertain a suit to establish or to contest a will which has not been presented for probate. First Presbyterian Church of Monett v. Feist (A.), 397 SW2d 728. (1997) Action by probate division is condition precedent to bringing suit to set aside a will or to establish a will that has been rejected. Brunig v. Humburg, 957 SW2d 345 (Mo.App.E.D.) Testimony of subscribing witnesses, other evidence whereabouts unknown, then due execution of the will by testator and its attestation by subscribing witnesses shall be proved by the available subscribing witness, if any. and proof of the handwriting of any dead or mentally incapacitated subscribing witness or subscribing witness whose whereabouts is unknown, or by such other competent evidence as is available. HISTORY: L 1955 p , A.L H.B. 1634, A.L S.B. 637, A.L S.B. 117, A.L S.B. 44 & Commission for testimony of nonattendant witness If a witness to any will for good cause shown is prevented from attending at the time when an y will is produced for probate, the clerk or court may issue a commission annexed to the will or a photostatic copy thereof, and directed, if the witness resides out of the United States to any court having a seal. of any state, kingdom, republic or empire, or mayor or other chief officer of any city or town having a seal. or to any minister or consul of the United States to any country in which the witness resides; if without this state and within the United States, to any court having a seal, or to any notary public in the state, territory or district in which the witness resides; and if within this state, to any court having a seal, or judge thereof, notary public, mayor, or other chief officer of any city or town in the county where the witness resides, empowering him to take and certify the attestation of the witness. If any witness is a member of the armed forces of the United States on active duty and out of this state, the commission may be issued to any commissioned officer, other than a warrant officer, of any of the armed forces of the United States, on active duty, and shall authorize him to take and certify the attestation of the witness. HISTORY: RSMo , A.L p , A.L S.B. 132, A.L H.B PRIOR REVISIONS: ; ; At least two of the subscribing witnesses to a written will shall be examined if they are alive and competent to testify and otherwise available. Before any will is probated each of at least two witnesses thereto shall testify to facts showing that the will was executed in accordance with section , RSMo. This section does not alter the rules of evidence as to the establishment of a will by probate in solemn form or affect the probate of a self-proved will. 2. If either or both of the subscribing witnesses to the will are dead, physically or mentally incapable of testifying, or their 43

45 Testimony before officer. effect If the witness appears before such officer and makes oath or affirmation that the testator signed the writing annexed to the commission, as his last will, or that the testator signed the writing, of which the photostatic copy annexed to such commission is a copy as his last will, or that some other person signed it by his direction, and in his presence, that the witness subscribed his name thereto in the presence of testator, the testimony so taken shall have the same force as if taken before the court or clerk. HISTORY: RSMo , A.L 1955 p , A.L 1961 p. 653 PRIOR REVISIONS: ; ; Testimony to be recordedurecord as evidence 1. All the testimony adduced in support of any will shall be reduced to writing, signed by the witnesses and certified by the clerk. 2 The record of the testimony of any witness so certified is admissible in evidence in any action involving the validity of a will upon a showing that the subscribing witness is dead, mentally incapacitated or cannot be found. HISTORY RSMo , 541, AL 1955 p , AL 1983 S.S. 44 & 45 PRIOR REVISIONS: ,540; ,528; , Probate of will, whenuprocedure for contest 1. A will which appears to have the required signatures and a certificate as provided in section , RSMo, showing that the requirements of execution under section , RSMo, have been met, shall be probated without further proof. 2. Procedure for the contest of a will probated under subsection 1 shall be as provided in section Proof of nuncupative wills Proof of nuncupative wills is subject to the requirements of section , RSMo. HISTORY: L 1955 p Heirs, time limits to establish interest in estateuposthumous heirs in gestation. mother has right to file actionutime limitations 1. Any action to establish an interest in an estate by descent shall be filed prior to the expiration of the applicable objection period for a final settlement pursuant to section or for a statement of account pursuant to subsection 4 of section The mother of an alleged heir who is not yet born and is in gestation shall have the right to file an action in accordance with subsection 1 of this section on behalf of the alleged heir. HISTORY: L 1955 p A.L 1971 S.S. 85. AL 1985 S.S. 35. et al.. A.L 1989 H.B A.L 1996 S.B. 494 EFFECTIVE Effective (1996) Illegitimate child may prove paternity during probate pursuant to this section even if section statute of limitations has run. In the Matter of Carl Nocita. 914 SW.2d 358 (Mobane 1996) Proof required for probate and grant of administration 1. On the presentation and proof of a will to the clerk or court, if the clerk or court finds that the testator is dead and that the will was executed in all respects according to law, and does not find that the will was revoked, the will shall be admitted to probate as the last will of the testator. 2. On an application for letters, the clerk or court shall determine whether the deceased died testate or intestate and grant letters accordingly or on proper grounds, may deny the application. HISTORY: L 1955 p , A.L 1961 p. 653 HISTORY: L 1980 S.B. 637 EFFECTIVE Effective

46 473.0n. Proceedings reopened, when If the court determines the facts as provided in section , its order shall be final. subject to the following exceptions: (1) It may be reopened at any time, within six months from the date of the first publication of notice of letters, for the purpose of admitting a will to probate not theretofore presented to the court except that. if a previous will has been probated or rejected, it may not be reopened after the time for bringing a proceeding under section ; (2) It may be vacated or modified for good cause as provided in section , RSMo; (3) The finding that the alleged decedent is dead is not final or conclusive Probate of portion of will When part of a will is not admissible to probate because of fraud, duress, undue influence, mistake, ignorance of the testator of its content, partial revocation, or other cause, the other parts of the will may be admitted to probate under sections and HISTORY: l B. 637 HISTORY: L 1955 p , A.L 1971 S.B. 85 (1957) A contingent debtor who was defendant in action brought by administrator held entitled to attack validdy of appointment of administrator and to appeal from order denying removal of administrator. In re Dugan (Aj, 309 S.w.(2d) 137. Same rule applies to appointment of guardian of minors. In re Dugan (A.). 309 SW.2d Certificate of probate, contents- evidence The certificate of probate or rejection granted under section shall be attached to each written will which is in the custody of the court. Such certificate shall set forth the names of the witnesses examined together with their testimony. If for any reason a written will is not in the custody of the court, the court shall find the contents thereof, and the order admitting the will to probate shall state the contents and a certificate shall be annexed as above provided. Every will certified as herein provided, or the record thereof, or a duly certified transcript of the record, may be read in evidence in the courts in this state without further proof. HISTORY: L 1955 p

47 Will binding, when--contest of will, when, procedure 1. Unless any person interested in the probate of a will appears within six months after the date of the probate or rejection thereof by the probate division of the circuit court, or within six months after the first publication of notice of granting of letters on the estate of the decedent, whichever is later, and, by petition filed with the clerk of the circuit court of the county, contests the validity of a probated will, or prays to have a will probated which has been rejected by the probate division of the circuit court, then probate or rejection of the will is binding. An heir, devisee, trustee or trust beneficiary under another purported will of the same decedent, and a person who has acquired, before or after the death of the testator. all or part of the interest of such heir or devisee by purchase, gift, devise, intestate succession, mortgage or lien, is interested in the probate of a will for purposes of this section. 2. Whenever it is shown or appears to and is found by the judge of the probate division that any person interested in the probate of a will is a minn or mentally incapacitated person, and th at the filing of a contest may be to the interest of the minor or person, the court shall appoint a guardian ad litem for the minor or person, who shall file or join in the contest within the time fixed by subsection 1 of this section. 3. It is not necessary to join as parties in a will contest persons whose interests will not be affected adversely by the result thereof. Subject to the provisions of section , RSMo, persons not joined as parties in a will contest are not bound by the result thereof and have no rights in or to any consideration given for dismissal pursuant to subsection 8 of this section. 4. Upon filing of the petition the clerk of the circuit court shall immediately notify the probate division of the circuit court and transmit to it a copy of the petition within ten days after its filing. 5. Any contest of the validity of a probated will or any prayer to have probated a will which has been rejected by the judge of the probate division shall be heard before a circuit judge other than the judge of the probate division, provided, however, that with the consent of the judge of the probate division, such actions may be filed in or transferred to the probate division for hearing. Service of summons, petition, and subsequent pleadings thereto together with all subsequent proceedings in such will contest proceedings shall be governed by the Missouri Rules of Civil Procedure and the provisions of The Civil Code of Missouri which are in effect. 6. In any such action the petitioner shall proceed diligently to secure and complete service of process as provided by law on all parties defendant. If service of process is not secured and completed upon all parties defendant within ninety days after the petition is filed, the petition, on motion of any defendant duly served upon the petitioner or his attorney of record, in the absence of a showing by the petitioner of good cause for failure to secure and complete service, shall be dismissed at the cost of the petitioner. 7. If a timely petition is filed, it and the answer or answers thereto shall frame the issues of intestacy or testacy or which writing or writings constitute the decedent's will. The issues shall be tried by a jury, or if no party requires a jury, by the court, and the judgment thereon shall determine the issues. The verdict of jury or the finding and judgment of the court is final, saving to the court the right of granting a new trial and to the parties the right of appeal as in other cases. 8. Any such action may be voluntarily dismissed, after the period of contest has expired, by consent of all parties not in default, at the cost of the party or parties designated, at any time prior to final judgment. Dismissal under this subsection shall not be considered a compromise of the action requiring court approval pursuant to sections and , even though the parties have contractually agreed to an exchange of consideration for such dismissal or consent, and even though others similarly situated do not participate in such consideration. 9. If the action is dismissed under the provisions of subsection 6 or 8 of this section, the judge of the probate division shall proceed with the administration of the estate in accord with his previous order admitting the will to probate or rejecting a will as if the petition had never been filed with the clerk of the circuit court. (1971) The term 'interested in the probate of a will' as used in this section requires a contestant to have a financial interest in the estate, and one which would be benefited by setting the will aside. State ex rei. Cooper v. Cloyd (Mo.), 461 SW.2d 833. (1971) Where all legatees named in will were not named and served as defendants in will contest sun unw after sixty days from date petition was filed and no attempt was made to show good cause for failure to do so suit was properly dismissed Doran v. Wurth (Mo.), 475 SW.2d 49. ' (1973) Right of action to contest a will is purely statutory and in derogation of common law. Where coexecutors failed to adequately advise probate coun of decedents son's whereabouts, statute of limitation was not tolled Haas v. Haas (Mo.), 504 S.w.2d 44. (~9n) Legatee names individually in body of petition was duly served as an individual even though names in caption of petition and summons in his capacity as executor only. Watson v. Watson (Mo), 562 S.w.2d 329. (1984) The only question that may be litigated in a will contest is whether a document is the last will and testament of the decedent. and no other claims may be joined. Romann v. Vuechmann (Mo. App.), 686 SW.2d 25. (1987) As used in this section, the term 'adversely affected' means that the perso~ may lose some benefrt if the will contest succeeds. not if the will contest falls.. Zlmmerman v. Preuss, 725 S.w.2d 876 (Mo. banc 1987). (1~87) A.will contest may be dismissed voluntarily with prejudice pursuant to this section and the estate distributed in aocordance with coun approved settlement agreement of parties to will contest pursuant to sections ~nd so Io~g as agreement is reasonable and takes into account all Interest~ parties Incfudlllg those that may not be parties to will contest. Mamouhan Y. St Louis University, 732 S.w.2d 512 (Mo. bane 1987). (1996) The requirements of sections and must be foil~wed before the statutory bar of this section may be exercised to exclude a Will contest In an open estate. Bosworth v. Sewell. 918 S.w.2d 773 (Mo.bane 1996). (199.1) Acti~n by probate division is condition precedent to bringing su~ to set aside a Will or to establish a will that has been rejected. 8runig v. Humburg,957 SW.2d 345 (MoApp.E.D.). 46

48 Compromise of controversy as to probate. when binding A compromise of any controversy as to admission to probate of any instrument offered for probate as the will of a decedent, the construction, validity, or effect of any probated will, the rights or interest in the estate of the decedent of any successor, or the administration of the estate, if approved in a proceeding in the court for that purpose, is binding on all the parties thereto, including those unborn, unascertained, or who could not be located. An approved compromise is binding even though it may affect a trust or an inalienable interest. A compromise does not impair the rights of creditors or of taxing authorities who are not parties to it. HISTORY: L 1980 S NOTES EFFECTIVE Effective Court approval of compromise. procedure for securing The procedure for securing court approval of a compromise is as follows: (1) The terms of the compromise shall be set forth in an agreement in writing which shall be executed by a/l competent persons and parents acting for any minor child having beneficial interests or having claims which will or may be affected by the compromise. Execution is not required by any person whose identity cannot be ascertained or whose whereabouts are unknown and cannot reasonably be ascertained; (2) Any interested person, including a personal representative or trustee, may then submit the agreement to the court for its approval and for execution by the personal representative, the trustee of every affected testamentary trust, and other fiduciaries and representatives; (3) After notice to all interested persons or their representatives, including the personal representative of the estate and all affected trustees of!rullts, the court in which the controversy is pending. if it finds that the contest or controversy is in good faith and that the effect of the agreement upon the interests of persons represented by fiduciaries or other representatives is just and reasonable, shall make an order approving the agreement and directing all fiduciaries over which it has jurisdiction to execute the agreement. Minor children represented only by their parents may be bound only if their parents join with other competent persons in execution of the compromise. Upon the making of the order and the execution of the agreement, all further disposition of the estate is in accordance with the terms of the agreement. HISTORY: L 1980 S , A.L 1982 S.B. 700 Revision Will not effective until probated No will is effectual for the purpose of proving title to, or the right to the possession of, any real or personal property, disposed of by the will, until it has been admitted to probate. HISTORY: L p (1967) Joint will of deceased wife and surviving husband nol offered for probate after death of wife, had no standing as a will and was ineffectual for the purpose of proving title to or right to possession of real estate. Gumiak v. Liszewski (Mo.), 411 SW.2d

49 Refusal of letters 1. Notwithstanding the limitation periods provided in section , the probate division of the circuit court, in its discretion, may at any time refuse to grant letters in the following cases: (1) When the estate of the decedent is not greater in amount than is allowed by law as exempt property and the allowance to the surviving spouse or unmarried minor children under section , RSMo; (2) When the personal estate of the decedent does not exceed fifteen thousand dollars and there is no widower widow or unmarried minor children, any creditor of the ' decedent whose claim has not been barred by section or any creditor of the estate may apply for refusal of letters by giving bond in the sum of not less than the value of the estate, the bond to be approved by the court, conditioned upon the creditor's obligating himself or herself to pay, so far as the assets of the estate will permit, the debts of the decedent in the order of their preference, and to distribute the balance, if any, to the persons entitled to such balance under the law. Liability of the sureties on the bond shall terminate unless proceedings against them are instituted within two years after the bond is filed. The court may dispense with the filing of a bond if the court finds the bond is not necessary. 2. Proof may be allowed by or on behalf of the widower, widow, unmarried minor children or creditor before the court of the value and nature of the estate, and if the court is satisfied that no estate will be left after allowing to the surviving spouse or unmarried minor children their exempt property and statutory allowances or that the personal estate does not exceed fifteen thousand dollars when application is made by a creditor, the court may order that no letters of administration shah be issued on the estate, unless, upon the application of other creditors or parties interested, the existence of other or further property is shown. 3. After the making of the order, and until such time as it may be revoked, the surviving spouse, unmarried minor children or creditor may collect and sue for all the personal property belonging to the estate, if a surviving spouse or creditor, in the same manner and with the same effect as if the person had been appointed and qualified as executor or administrator of the estate, and if minor children, in the same manner and with the same effect as now provided by law for proceedings in court by infants in bringing suit. 4. When the estate of the decedent includes real estate and its value, less liens and encumbrances, together with the personal property, is not greater in value than the exempt property and allowances to the surviving spouse or unmarried minor children, the surviving spouse or unmarried minor children are entitled to such real property and may make record evidence of title to such real property without appointment of an executor or administrator by filing in the office of the recorder of deeds of each county where the real property is situated a certified copy of the order of refusal of letters, describing the real property, naming the persons entitled to such real property and showing their right to succeed to the property. 5. The surviving spouse or unmarried minor children who receive property of the estate under this section may retain such property, but a creditor receiving property under this section shall apply the proceeds of such property to debts of the estate in the order in which claims against the estate of deceased persons are now classified and preferred by law, and shall distribute the balance, if any, to the persons entitled thereto under the law. Upon compliance with this procedure, the real estate involved shall not thereafter be taken in execution for any debts or claims against the decedent, but the compliance has the effect of establishing the right of the surviving spouse or unmarried minor children to succeed to the real property; however, nothing in this section shall affect the right of secured creditors with respect to the real property. 6. Any person who has paid funeral expenses or debts of decedent is deemed a creditor for the purpose of making application for the refusal of letters of administration under this section and is subrogated to the rights of the original creditor. CROSS REFERENCES: Administrators, profit on publication of notices or advertisements prohibited, RSMo , Adversary probate proceeding defined for Chap. 473, RSMo Attachment proceeding, administrator made party, where, RSMo Bi-state development agency, bonds of,lnvestment in authorized RSMo ' Cattle, female, sale by estate, brucellosis vaccination law special provisions, RSMo Declaratory judgment, executor or administrator may obtain as io rights, RSMo Definition of terms and general provisions, Chap. 472, RSMo Disclaimers of property, Chap. 469, RSMo Durable power of attorney, RSMo to Foreign administrator, suits by, RSMo Mortgages, satisfaction by executor or administrator, RSMo to Nonprobate transfers, RSMo to Probate code, definitions, RSMo Public officer, executor or administrator of to deliver records RSMo to ' Records of probate division, RSMo Savings accounts in insured savings and loan associations investment in authorized, RSMo ' Tax assessment list, executor or administrator to give assessor RSMo ' 48

50 Clerk's duties as to certain forms.. not practice of law Upon requesllo the judge of the probate division of the circuit court, clerks of the court may under his supervision assist in filling out all forms necessary for obtaining an order of refusal of letters of administration pursuant to section , and the performance of the duties required by this section shall not constitute the practice of law as defined in section , RSMo. HISTORY: L S.B. 637, A.L S.B. 117 EFFECTIVE Effective Court may order administration previously commenced pursuant to guardianship law, dispensed with, when At any time during a proceeding commenced pursuanllo this chapler, or, after the dealh of a ward, al any time during a proceeding commenced pursuant 10 chapter 475, RSMo, upon pelition by any person who could have applied to the court pursuanllo section or section , if the court finds the requirements of either section would have been initially met, the court may order the pending matter be completed under section or section and proceed pursuant to either section as authorized by statute. The court may proceed wilh or without notice 10 any interested party. HISTORY: L S.B. 494 EFFECTIVE Effective Apportionment of property between surviving spouse and children In cases arising under sections and , the court, if it finds that it would be just and equitable to make an apportionment of property between a surviving spouse and unmarried minor children, shall in its order thereunder make such division of the property as will effectuate the apportionment. HISTORY~ L p Small estate distribution of assets without letters, when.. affidavit procedure fee 1. Distributees of an estate which consists of personal property or real property or both personal and real property have a defeasible right to the personal property, and are entitled to the real property of such estate, as provided in this section, without awaiting the granting of leiters testamentary or of administration, if all of the following conditions are met: (1) The value of the entire estate, less liens and encumbrances, does not exceed forty thousand dollars; (2) Thirty days have elapsed since the death of the decedent and no application for leiters or for administration or for refusal of letters under section is pending or has been granted, or if such refusal has been granted and subsequenuyrevoked; (3) A bond, in an amount not less than the value of the personal property, approved by the judge or clerk of the probate division is filed by the person making the herein required affidavit conditioned upon the payment of the debts of the decedent, including any debts to the state of Missouri the expenses of funeral and burial and compliance with ' future orders of the court in relation to the estate of the decedent; and further conditioned that any part of the property to which the distributee is not entitled will be delivered to the persons entitled to the property under the law. Liability of the sureties on the bonds provided for in this section terminates unless proceedings against them are instituted within two years after the bond is filed; except that, the court may dispense with the filing of a bond if it finds that the same is not necessary; (4) A fee, in the amount prescribed in subdivision (4) of subsection 1 of section , RSMo, and when required, the publication cost of the notice to creditors are paid or the proof of payment for such publication is provided to the clerk of the probate court. 2. Notwithstanding the limitation periods set out in section , the affidavit required by this section may be made by the person designated as personal representative under the will of the decedent, if a will has been presented for probate within the limitation periods specified in section , otherwise by any distributee entitled to receive property of the decedent any time after thirty days after decedenfs death, and shall set forth all of the following: (1) That the decedent left no will or, if the decedent left a will, that the will was presented for probate within the limitation periods specified in section ; (2) That all unpaid debts, claims or demands against the decedent or the decedent's estate and all estate taxes due if any, on the property transfers involved have been or will b~ paid,.except that any liability by the affiant for the payment of unpaid claims or demands shall be limited to the value of the property received; 49

51 (3) An itemized description and valuation of property of the decedent. As used in this subdivision, the phrase property of the decedent" shall not include property which was held by the decedent as a tenant by the entirety or a joint tenant at the time of the decedent's death; (4) The names and addresses of persons having possession of the property; (5) The names, addresses and relationship to the decedent of the persons entiued to and who will receive, the specific items of property remaining after payment of claims and debts of the decedent, included in the affidavit; (6) The facts establishing the right to such specific items of property as prescribed by this section. The certificate of the clerk shall be annexed to or endorsed on the affidavit and shall show the names and addresses of the persons entitled to the described property under the facts stated in the affidavit and shall recite that the will of decedent has been probated or that no will has been presented to the court and that all estate taxes on the property, if any are due, have been paid. 3. A copy of the affidavit and certificate shall be filed in the office of the clerk of the probate division and copies of the affidavit and certificate shall be furnished by the clerk. 4. The distributees mentioned in this section may establish their right to succeed to the real estate of the decedent by filing a copy of the foregoing affidavit and certificate of the clerk in the office of the recorder of deeds of each county where the real property is situated. 5. When the value of the property listed in the affidavit is more than fifteen thousand dollars, the clerk shall cause to be published in a newspaper of general circulation within the county which qualifies under chapter 493, RSMo, a notice to creditors of the decedent to file their claims in the court or be forever barred. The notice shall be published once a week for two consecutive weeks. Proof of publication of notice pursuant to this section shall be filed not later than ten days after completion of the publication. The notice shall be in substantially the following form: To all persons interested in the estate of..., Dece dent: On the... day of..., 19..., a small estate affidavit was filed by the distributees for t he decedent under section , RSMo, with the probate division of the circuit court of... County, Missouri. All creditors of the decedent, who died on..., 19...,are notified that section sets a limitation period th at would bar claims one year after the death of the decedent. A creditor may request that this estate be opened for administration. Receipt of this notice should not be construed by the recipient to indicate that the recipient may possibly have a beneficial interest in the estate. The nature and extent of any person's interest, if any, may possibly be determined from the affidavit on this estate filed in the probate division of the circuit court of... County, Missouri. Date of first publication is..., Clerk of the Probate Division of the Circuit Court... County, Missouri 6. Upon compliance with the procedure required by this section, the personal property and real estate involved shall not thereafter be taken in execution for any debts or claims against the decedent, but such compliance has the same effect in establishing the right of distributees to succeed to the property as if complete administration was had; but nothing in this section affects the right of secured creditors with respect to such property. 7. The affiant shall collect the property of decedent described in the affidavit. The property of decedent shall be liquidated by the affiant to the extent necessary to pay debts of decedent. If the decedent's property is not sufficient to pay such debts, abatement of the shares of the distributees shall occur in accordance with section The affiant shall distribute the remaining property to such persons identified in the affidavit as required in subdivision (5) of subsection 2 of this section who are entitled to receive the specific items of personal property, as described in the affidavit, or to have any evidence of such property transferred to such persons. To the extent necessary to facilitate distribution, the affiant may liquidate all or part of decedent's property. HISTORY: L p , A.L p. 829, A.L p. 640, A.L S.8. 19, A.L S.B. 112, A.L H.B. 1634, A.L S.B. 637, A.L S.B. 117, A.L S.B. 35, et ai, AL S.B. 787, A.L.1993 S.B. 88, A.L.1994 S.B. 701, A.L.1996 S.B.494 EFFECTIVE Effective

52 Effect of acquittances by distributees of small estate The person making payment, delivery, transfer or issuance of personal property or evidence thereof pursuant to the affidavit prescribed in section is discharged and released to the same extent as if made to an executor or administrator of the decedent, and he is not required to see to the application thereof or to inquire into the truth of any statement in the affidavit if made by any other person. If any person to whom the affidavit is delivered refuses to p~y, deliver, transfer, or issue any personal property or evidence thereof, it may be recovered or its payment, delivery, transfer, or issuance compelled in an action brought for that purpose by or on behalf of the persons entitled thereto under section , upon proof of the defeasible right declared by such section. Any person to whom payment, delivery, transfer or issuance is made is answerable and accountable therefor to any administrator or executor of the estate or to the surviving spouse or minor children of the decedent who proceed under section or or to any other person having a superior right. HISTORY: L 1955 p Small estate appraised, when The probate division of the circuit court in its discretion may order the appraisal of the property before a certificate is made under section or before an order refusing letters is made under section The appraisal shall be made by one or more appraisers appointed by the court and the cost thereof shall be paid by the persons entitled to the property in accordance with the order of the court. HISTORY: L 1955 p , A.L 1971 S , A.l H.B Persons entitled to letters 1. Letters testamentary shall be granted to the personal representative or personal representatives designated in the will. If part of the persons designated in the will are found by the court to be incompetent, unsuitable or improper or are disqualified or fail to apply for letters, letters shall be gr~nted to the others designated, and if all personal representatives designated are found by the court to be incompetent, unsuitable or improper or are disqualified or fail to apply, letters shall be granted to some other qualified person.. 2. Letters of administration shall be granted to the following persons if otherwise qualified: (1) To the husband or wife; (2) To one or more of those who are entitled to distribution of the estate, who the court shall believe will best manage and preserve the estate. A conservator of a distributee is not entitled to preference; (3) If the court believes no one of the persons entitled to administer is a competent and suitable person, or if any such person fails to apply for letters when directed by the court, some other person may be appointed; (4) A person entitled to letters of administration under subdivision (1) or (2) of this subsection, or who would be entitled thereto but for section , may, if he has attained the age of eighteen years and has sufficient mental capacity for the purpose, nominate a qualified person to act as personal representative. Any such person may renounce his right to nominate or to be appointed by an appropriate writing filed with the court. When two or more persons share a priority, those of them who do not renounce must concur in nominating another to act for them or in applying for appointment. 3. A natural person or corporate fiduciary, otherwise qualified, who is a nonresident of this state may be appointed as a personal representative. (1967) A sister h as no priority to the appointment as an administratrix ad litem as statutory provisions as to preferences which are applicable to cases of general administration do not govern the appointment of a special or temporary administrator pendente lite, and the probate court, in its discretion, may appoint some suitable person without regard to priorities. State v. Ross (A.), 420 S.w.2d 365. CROSS REFERENCES: Administrators, profit on publication of notices or advertisements prohibited, RSMo , Adversary probate proceeding defined for Chap. 473, RSMo Attachment proceeding, administrator made party, where, RSMo Bi-state development agency, bonds of, investment in authorized, RSMo Cattle, female, sale by estate, brucellosis vaccination law special provisions, RSMo Declaratory judgment, executor or administrator may obtain as to rights, RSMo Definition of terms and general provisions, Chap. 472, RSMo Disclaimers of property, Chap. 469, RSMo Durable power of attorney, RSMo to Foreign administrator, suits by, RSMo Mortgages, satisfaction by executor or administrator, RSMo to Nonprobate transfers, RSMo to Probate code, definitions, RSMo Public officer, executor or administrator of to deliver records, RSMo to Records of probate division, RSMo Savings accounts in insured savings and loan associations, investment in authorized, RSMo Tax assessment list, executor or administrator to give assessor, RSMo

53 Letters granted to others, when Letters may be granted at any time to any person deemed suitable if the persons entitled to preference file their renunciation thereof, in writing, with the clerk of the court. HISTORY: RSMo , A.L p , A.L S.B. 637 PRIOR REVISIONS: ; ; EFFECTIVE Effective Persons and corporations disqualified as personal representative. designation required.. service of process, how made 1. None of the following persons shall be appointed as a personal representative: (1) No full time judge of any court of this state or clerk, deputy clerk or division clerk of any court, but a judge, clerk, deputy clerk or division clerk may serve as a personal representative for a decedent who was a spouse or who was within the third degree of relationship by consanguinity or affinity as calculated according to the civil law; (2) A person under the age of eighteen years or of unsound mind; (3) A person who is under legal disability as a result of conviction of a crime; (4) A habitual drunkard; (5) Except as otherwise provided by section , RSMo. a corporation, partnership or association organized under the law of a state or country other than the state of Missouri, or any United States national banking association having its principal place of business outside the state of Missouri; (6) No personal representative of a personal representative, in consequence thereof, shall be a personal representative of the first decedent. 2. When any corporation is named as personal representative in any will hereafter executed, and qualifies as such, the presumption is that the will was not prepared by a salaried employee of such corporation. However, upon the application of any heir or devisee, made in the probate division of the circuit court of the county for the removal of such personal representative, said presumption may be rebutted by evidence satisfactory to the court hearing the application, unless the will or some codicil or certificate attached thereto contains a recital that at or before the execution of the will the testator had advice or counsel in relation thereto from someone not under salary from such corporation. In the absence of such recital, the court may on such application and upon satisfactory evidence that said will was prepared by a salaried employee of the corporation revoke the appointment of and remove such corporation as personal representative. 3. Before a nonresident of this state or a corporation organized under the laws of another state or country is issued letters testamentary or of administration he, she or it shall file in the probate division of the circuit court a designation, including the signature and address, of a resident of this state, or a corporation of this state authorized to administer trusts, as agent for the service of process on and the receipt of notice by such nonresident or foreign corporation. This designation shall be recited in the letters testamentary or of administration. Such a designation may be revoked only by a new designation of an agent for service and notice in this state, which shall be endorsed on the letters testamentary or of administration. By filing such designation, the nonresident submits personally to the jurisdiction of the court in all proceedings relating to the administration of the estate and to the performance of his. fiduciary duties until discharged of those duties by the court. 4. Service of process may be made upon a personal representative who is a nonresident of this state, or a corporation organized under the laws of another state or country, by registered or certified mail, addressed to his, her or its last reasonably ascertainable address Notice by ordinary first class mail is sufficient if registered or certified mail service to the addressee is unavailable. Service may be made upon such a personal representative in the manner in which service could have been made under other laws of this state on either the personal representative or his decedent immediately prior to death. If service is made upon a personal representative as provided in this subsection, he shall be allowed at least thirty days within which to appear or respond. HISTORY: RSMo ,10, A.L p , A.L H.B. 1634, A.L S.B. 637, A.L S.B. 117, A.L S.8. 35, et ai., A.L S.B. 787, A.L H.B. 637 PRIOR REVISIONS: , 10; ,10; , 18 (1987) This section does not permanently disqualify a person convicted of a felony from being appointed personal representative; rather the court in making the appointment is to consider whether ~uch. conviction is reasonably related to the competency of the IndiVidual to fulfill the duties of personal representative pursuant to the provisions of section In Re Estate of Foxworth, 732 S,W,2d 931 (Mo.App. 1987). 52

54 Form of letters testamentary Letters testamentary issued to executors may be in the following form: County of... ss. The state of Missouri to all persons to whom these presents shall come, greeting: Know ye, that the last will of..., deceased, has, in due form of law, been exhibited, proved and recorded, and inasmuch as it appears that..... has been appointed executor in and by the said last will to execute the same and to the end that the property of the testator may be preserved for those who appear to have a legal right or interest therein, and that the said last will may be executed according to the request of the testator, we do hereby authorize..., as such executor, to take possession and control of all personal property, owned by the said... at the time of his death, except the exempt property of the surviving spouse or unmar ried minor children, in whosesoever possession the same is found and to perform and fulfill all duties enjoined upon him by the will, so far as there shall be property and the law charges him, and in general to do and perform all other things which are required of him by law. In testimony whereof, I,..., clerk of the probate division of the circuit court in and for said county of..., have Hereunto signed my name and affixed the seal of said probate division, at office, this... day of..., AD.... Clerk of the Probate Division HISTORY RSMo , A.L 1955 p , AL 1978 H.B PRIOR REVISIONS: ; ; EFFECTIVE Effective Form of letters of administration Letters of administration issued in this state may be in the following form: County of... ss. The state of Missouri to all persons to whom these presents shall come, greeting: Know ye, that whereas..., late of the county of..., died intestate, as it is said, having at the time of his death, property in this state, which may be lost, destroyed or diminished in value if speedy care be not taken of the same. To the end, therefore, that said property may be collected, preserved and disposed of according to law, we do hereby appoint... administrator of all personal property owned by... at the time of his death, except the exempt property of the surviving spouse or unmarried minor children, with full power and authority to secure and dispose of said property according to law, and collect all moneys due said decedent, and in general to do and perform all other acts and things which are required of him by law. In testimony whereof, I..., clerk of the probate division of the circuit court in and for the county of... aforesaid, have hereunto signed my name and affixed the seal of said probate division, at office, this... day of..., AD Clerk of the Probate Division HISTORY RSMo , A.L p , AL 1978 H.B PRIOR REVISIONS: ; ; EFFECTIVE Effective ,127. Letters c.t.a. and d,b.n" form In all cases where letters of administration with will annexed, letters of administration de bonis non, during minority or absence, are issued by the judge or clerk of the probate division, the same shall be issued in conformity to the foregoing forms, as near as may be, taking care to make the necessary variations, additions or omissions to suit each particular case. HISTORY: RSMo , A.L p , AL H.B.1634 PRIOR REVISIONS: ; ; EFFECTIVE Effective

55 Letters or copies, evidence Letters or copies of the record thereof, duly certified under the seal of the proper court, shall be evidence. HISTORY: RSMo , A.L p PRIOR REVISIONS: ; ; , Administrator during minority or absence If the executor named in a will is a minor or absent from the state, letters may be granted, during the time of minority or absence, to some other person who shall take charge of the property and administer the same according to law, under the direction of the court. HISTORY: RSMo , A.L p PRIOR REVISIONS: ; ; Administrator pending contest, appointed whenuduties 1. If the validity of a will is contested by any person who, after a hearing in the probate division, is found to be interested in the probate of the will, the court shall grant letters of administration to the executor named in the will, if he has no beneficial interest in the estate save the compensation allowed by law to executors, upon giving bond in such amount as the court may require. 2. If, after such hearing, it appears that the executor named in the will has an interest adverse to any such contestant of the will, the court may, in its discretion, grant letters of administration to some disinterested person or corporation, who shall give proper bond. 3. An administrator appointed pursuant to this section shall proceed with the administration of the estate until termination of the will contest, at which time he shall account to the executor or legal administrator when qualified, and, if it shall appear to the court that the decedent died possessed of real estate in the state, the court shall direct him to take charge of and manage such real estate until the termination of such will contest Resignation by executor or administrator, procedure, effect Upon petition of an executor or administrator, and after the filing of his final settlement as required by subdivision (3) of subsection 2 of section , the court, for good cause shown, may permit him to resign and upon accepting his resignation shall revoke his letters. The effect of the resignation and revocation is the same as in other cases of revocation of letters. The petition may be heard without notice or after giving notice to the persons and in the manner directed by the court. HISTORY: L p Removal of personal representative If any personai representative becomes mentally incapacitated or is convicted of a felony or other infamous crime, or becomes an habitual drunkard, or in any manner incapable or unsuitable to execute the trust reposed in him, or fails to discharge his official duties, or wastes or mismanages the estate, or acts so as to endanger any corepresentative, or fails to answer any citation and attachment to make settlement, the court, upon its own motion, or upon complaint in writing made by any person interested supported by affidavit, after notice to the personal representative, and to the attorney of record, if any, of any personal representative who cannot be served with notice in this state, shall hear the matter and may revoke the letters granted. HISTORY: RSMo ,43, A.L p , A.L S.B. 637, AL 1983 S.B. 44 & 45 NOTES PRIOR REVISIONS: ,43; ,42; ,50 (1962) Administrator was guilty of breach of trust and properly removed where estate was grossly mismanaged and could have been settled in 2 years but was delayed for 7 years, during which time only 3 settlements were filed though no extension of time was obtained. Credits were properly disallowed for expenses caused by administrator's mismanagement and delay. In re Alexander's Estate (Mo.), 360 SW.2d 92. (1975) Moving to another state is not equivalent to becoming a 'nonresident' absent intent to remain there. In re Estate of Ritter (A.), 518 S.w.2d 453. HISTORY: RSMo , A.L p , A.L H.B.1634 PRIOR REVISIONS: EFFECTIVE Effective

56 Revocation of letters on finding will 1. If, after letters of administration are granted, a will of the deceased is found, and probate thereof granted, the letters shall be revoked, and letters testamentary granted. 2. If a will is proved, and letters thereon granted, and the probate thereof is afterward set aside, the letters shall be revoked, and other letters granted of the goods unadministered. HISTORY: RSMo , 41, A.L p PRIOR REVISIONS ,41; ,40; Administrator d.b.n., when appointed 1. If all the executors or the administrator of an estate die or resign or their letters are revoked, letters of administration of the goods remaining unadministered shall be granted in the discretion of the court to any qualified beneficiary or beneficiaries mentioned in the will, if any, or to any person to whom administration could have been granted if original letters had not been obtained. 2. If, after final settlement of an estate is had and the executor or administrator has been discharged, unadministered assets of the estate are discovered, letters of administration of the goods remaining unadministered, if there are unpaid allowed claims or if other good cause is shown, may be granted to those to whom administration would have been granted if the original letters had not been obtained. Any person to whom such letters are granted shall make his final settlement and be discharged as soon as possible after letters are granted. 3. Any administrator appointed under this section shall perform like duties and incur like liabilities as a former executor or administrator. HISTORY: RSMo , A.L p PRIOR REVISIONS: ; ; (1977) Discovery of unadministered assets standing alone is not sufficient to bring about operation of the statute. Matter of the Estate of Waller (A.), 559 S.w.2d Remaining executor or administrator to continue If there is more than one executor of an estate, and the letters of part of them are revoked or surrendered, or part of them dies, those who remain shall discharge all the duties required by law respecting the estate, except that the court, if it finds same to be in the interests of the estate, may revoke the letters testamentary of the surviving executor. and issue letters of administration with the will annexed to the survivor and some other qualified person to whom administration could have been granted if original letters had not been issued. HISTORY: RSMo , A.L p PRIOR REVISIONS: ; ; Compensation of personal representatives, accountants and attorneys 1. If a testator by will makes provision for the compensation of his personal representative, that shall be allowed and taken as his full compensation unless he files in the court a written instrument renouncing all claim for the compensation provided by the will before qualifying as personal representative. When no compensation is provided in the will, or when there is no will, or when the personal representative renounces all claim to the compensation provided in the will, the compensation of the personal representative shall be determined pursuant to this section. When there is only one personal representative he shall be allowed as the minimum compensation for his services the following percentages of the value of the personal property administered and of the proceeds of all real property sold under order of the probate court: On the first On the next On the next On the next On the next On all over $ 5,000, 5 percent; 20,000,4 percent; 75,000, 3 percent; 300,000, 2 3/4 percent; 600,000,2 1/2 percent; 1,000,000, 2 percent. In any case where reasonable compensation to the personal representative is in excess of the minimum provided in the above schedule, the court shall allow such additional compensation as will make the compensation of the personal representative reasonable and adequate. Performance by the personal representative of extraordinary services is not necessary to entitle him to such additional compensation. Such percentages shall be computed on the value of the personal property at the time of disbursement or distribution 55

57 thereof, except that where it is necessary to allow compensation before the property is disbursed or distributed, or to allow compensation to a personal representative who has been succeeded by another personal representative, the court may determine the fair market value of property at the time of making the allowance and base such percentage thereon. 2. When there are two or more joint or successor personal representatives they shall be allowed in the aggregate reasonable compensation for their services, not exceeding twice the minimum provided for in the schedule set forth in subsection 1 of this section or five percent of the value of the personal property administered and of the proceeds of the real property sold under order of the probate division, whichever is less, except that this maximum limitation shall not apply if possession has been taken of real property pursuant to order of the probate division but such real property has not been sold under order of the probate division, or if extraordinary services have been performed. Where there are two or more joint or successor personal representatives the compensation allowed them shall be apportioned among them by the court according to the services actually rendered by each, or as they may agree. 3. Attorneys performing services for the estate at the instance of the personal representative shall be allowed out of the estate as the minimum compensation for their services sums equal to the percentages set forth in the schedule contained in subsection 1 of this section. In any case where reasonable compensation to the attorneys is in excess of the minimum provided in the schedule the court shall allow such additional compensation as will make the compensation of the attorneys reasonable and adequate. Performance by the attorneys of extraordinary services is not necessary to entitle them to such additional compensation. If the personal representative is an attorney, no allowance shall be made for legal services performed by him or at his instance unless such services are authorized by the will or by order of the court or are consented to by all heirs and devisees whose rights may be adversely affected by the allowance. In addition, when one member of a law firm or professional corporation serves as personal representative of the estate and another member of the same law firm or professional corporation serves as the attorney for the estate, only one fee as set forth in subsection 1 of this section shall be allowed. 4. A personal representative may employ independent accountants, certified public accountants, or tax specialists holding a valid permit to practice before the United States Treasury Department to assist him in filing estate tax returns, federal and state income tax returns, or establishing records of account and reporting on financial results in those estates requiring this service and such person shall be allowed reasonable compensation for such service as determined by the court. If the personal representative is a certified public accountant, tax specialist holding a valid permit to practice before the United States Treasury Department or an independent accountant, no allowance shall be made for accountant services performed by him or at his instance unless such services are authorized by will or by order of the court or are consented to by all heirs and devisees whose rights may be adversely affected by the allowance. In addition, when one member of an accounting firm or professional corporation serves as an accountant for the estate, only one fee as set forth in subsection 1 of this section will be allowed. 5. If the court finds that any accountant's services or actions in connection therewith are wrong, improper or injurious to the estate, no accountant fee whatsoever shall be allowed. 6. Compensation properly allowable hereunder may be allowed to personal representatives or attorneys upon final settlement, or partial compensation upon application therefor, at any time or times during administration. If the court finds that a personal representative has failed to discharge his duties as such in any respect it may deny him any compensation whatsoever or may reduce the compensation which would otherwise be allowed. If the court finds that any attorney's services or actions in connection therewith are wrong, improper or injurious to the estate, no attorney fee whatever shall be allowed. 7. No personal representative, other than one who is an attorney, may appear in court except by attorney, and such attorney may not be a salaried employee of the personal representative, but when the personal representative is an attorney, nothing herein shall prevent his being represented in court by a partner, associate or employee who is an attorney. Any personal representative may prepare and file his own inventories and settlements. HISTORY: L p , A.L H.B. 1634, A.l 1980 S.B. 637, A.L H.B. 145 (1956) Attorneys for heirs in will contest, through whose efforts additional assets were brought into the estate, held not entitled to fee payable from the estate because prior statutes made no provision therefor. In re Estate of Foster v. Theis (A.), 290 S.W.2d 185. (1962) Administrator and attorneys were not entilied to fees where estate was grossly mismanaged, assets permitted to be wasted, proper accounts and records were not kept and acts amounted to breach of trust. In re Alexander's Estate (Mo.), 360 S.w.2d 92. (1969) Deduction allowed for the purpose of computing state inheritance taxes are to be computed on the valuation of the estate at death, and should not be computed on the basis of any increase in the value of the estate after death. Estate of of Stevenson v. David (Mo.),447 S.w.2d 299. (1976) Where testator in will 'gave' $15,000 to executor as compensation 'in lieu of all statutory commission and compensations to which he might otherwise have been entitled', the difference between the statutory minimum fee and the $15,000 was taxable as a bequest, in absence of any findings as to what was reasonable compensation. Matter of Estate of Lamb (Mo.), 533 S.w.2d

58 Compensation of accountants and attorneys (first class counties and St. Louis City) 1. In all counties of the first class and SI. Louis City, other provisions of law notwithstanding, attorneys performing services for the estate at the instance of the personal representative shall be allowed out of the estate as the minimum compensation for their services sums equal to the percentages set forth in the schedule contained in subsection 1 of section In any case where reasonable compensation to the attorneys is in excess of the minimum provided in the schedule the court shall allow such additional compensation as will make the compensation of the attomeys reasonable and adequate. Performance by the attorneys of extraordinary service is not necessary to entitle them to such additional compensation. 2. If the personal representative is an attorney, no allowance shall be made for legal services performed by him or at his instance unless such services are authorized by the will or by order of the court or are consented to by all heirs and devisees whose rights may be adversely affected by the allowance. In addition, when one member of a law firm or professional corporation serves as personal representative of the estate and another member of the same law firm or professional corporation serves as the attorney for the estate, only one fee as set forth in subsection 1 of section shall be allowed. 3. A personal representative may employ independent accountants, certified public accountants, or tax specialists holding a valid permit to practice before the United States Treasury Department to assist him in filing estate tax returns, federal and state income tax returns, or establishing records of account and reporting on financial results in those estates requiring this service and such person shall be allowed reasonable compensation for such service as determined by the court. If the personal representative is a certified public accountant, tax specialist holding a valid permit to practice before the United States Treasury Department or an independent accountant, no allowance shall be made for accountant services performed by him or at his instance unless such services are authorized by will or by order of the court or are consented to by all heirs and devisees whose rights may be adversely affected by the allowance. In addition, when one member of an accounting firm or professional corporation serves as an accountant for the estate, only one fee as set forth in subsection 1 of this section will be allowed. 4. Nothing in subsection 2 of this section shall apply to attorneys employed by any duly elected public administrator who is an attorney. HISTORY: L 1965 p ,2,3, A.L S.B. 637, A.L H.B Bond of personal representative.. conditions of bond 1. Except as provided in section , every personal representative, before entering upon the duties of his office, shall execute and file a bond, approved by the judge or the clerk, procured at the expense of the estate, with sufficient security, in an amount fixed by the judge or clerk for the protection of interested parties. 2. The condition of the bond shall be as follows: "The condition of the bond is that if... personal representative of the estate of..., deceased, shall faithfully administer said estate, account for, pay and deliver all money and property of said estate and perform all other things touching said administration required by law, or the order or decree of any court having jurisdiction, then the above bond to be void; otherwise to remain in full force.' HISTORY: RSMo , 19, A.L 1955 p , A.L S.B. 637 PRIOR REVISIONS: ,19; ,19; ,26 (1962) Ad ministrator and attorneys were not entitled to fees where estate was grossly mismanaged, assets permitted to be wasted, proper accounts and records were not kept and acts amounted to breach of trust. In re Alexander's Estate (Mo.), 360 S.w.2d 92. NOTES APPLICABLE TO ENTIRE CHAPTER CROSS REFERENCES: Administrators, profit on publication of notices or advertisements prohibited, RSMo , Adversary probate proceeding defined for Chap 473, RSMo Attachment proceeding, administrator made party, where, RSMo Bi-state development agency, bonds of, investment in authorized, RSMo Cattle, female, sale by estate, brucellosis vaccination law special provisions, RSMo Declaratory judgment, executor or administrator may obtain as to rights, RSMo Definition of terms and general provisions, Chap. 472, RSMo Disdaimers of property, Chap. 469, RSMo Durable power of attomey, RSMo to Foreign administrator, suits by, RSMo Mortgages, satisfaction by executor or administrator, RSMo to Nonprobate transfers, RSMo to Probate code, definitions, RSMo Public officer, executor or administrator of to deliver records, RSMo to Records of probate division, RSMo Savings accounts in insured savings and loan associations, investment in authorized, RSMo Tax assessment list, executor or administrator to give assessor, RSMo

59 Bond not required, when 1. When, by the terms of the will, the testator expresses a wish that no bond be required of the personal representative, no bond shall be required unless the court, in its discretion, finds it proper to require it; but the court, in its discretion, may at any subsequent time require a bond to be given. 2. Any assets of an estate may be deposited at any time with a depositary upon such terms as may be prescribed by order of the court and the amount of the bond of the personal representative may be reduced in proportion to the value of the assets deposited. Such assets may not thereafter be withdrawn from deposit without an order of the court which may also require that an additional bond be filed and approved before the withdrawal. 3. No bond shall be required of any corporation which at the time of its appointment by the court as personal representative has a certificate of the director of finance of the state of Missouri that such corporation has complied with the provisions of section , RSMo. 4. No bond shall be required if the court, upon good cause shown, finds that a bond is not required for the protection of interested parties. HISTORY: L p , A.L S.B. 163, A.L S.B. 637, A.L S.B. 35, et aj Agreements with surety as to deposit of assets It is lawful for the executor or administrator to agree with his surety for the deposit of any or all moneys and other assets of the estate with a bank, safe deposit or trust company, authorized by law to do business as such, or other depositary approved by the court, if such deposit is otherwise proper, in such manner as to prevent the withdrawal of the moneys or other assets without the written consent of the surety, or on order of the court made on such notice to the surety as the court may direct. HISTORY: L p Execution of bond Each bond shall be signed by the executor or administrator and his surety and shall be acknowledged before the judge or clerk or before some officer authorized to take acknowledgments of deeds and a certificate of the acknowledgment shall be endorsed thereon Obligees of bond liability of surety The bond of the executor or administrator shall run to the state of Missouri to the use of all persons interested in the estate and shall be for the security and benefit of such persons. The sureties shall be jointly and severally liable with the executor or administrator and with each other. HISTORY: L p Bond of joint executors or administrators When two or more persons are appointed executors or administrators of the same estate and are required to give a bond, the court may require either a separate bond from each or one bond from all of them, and none shall act or intermeddle in the estate except those giving bond as required by the court. HISTORY: L p Affidavit of personal sureties Each personal surety shall execute and file with the court an affidavit that he owns property subject to execution, of a value over and above his liabilities, equal to the amount of the bond, and shall include in such affidavit the total amount of his obligations as surety on other official or statutory bonds. The affidavit shall be attached to and kept with the bond in the files of the court. HISTORY: L p Persons not acceptable as sureties No judge of probate, sheriff, marshal, clerk of a court, or deputy of either, and no attorney at law, shall be taken as surety for any executor or administrator. HISTORY: RSMo , A.L p PRIOR REVISIONS: ; ; HISTORY RSMo , A.L p NOTES PRIOR REVISIONS: ; ;

60 Approval of bond The judge or clerk shall examine and approve or reject the bond of each executor or administrator and the approval or rejection thereof shall be endorsed thereon and entered on the records of the court. In the case of personal sureties, the judge or clerk shall take special care to accept as sureties, only those who are solvent and sufficient and who are not bound in too many other bonds. Before giving approval, the judge or clerk may take testimony or examine on oath the applicant or persons offered as his sureties as to the value and character of the assets of the personal surety. If the bond is rejected the executor or administrator, within such time as the judge, or in his absence, the clerk directs, shall give a bond with satisfactory sureties. HISTORY RSMo ,25, A.L p PRIOR REVISIONS: ,24,25; ,23,24; ,31, Bond valid though rejected Any bond taken by the clerk is valid until a new bond is given, notwithstanding its subsequent rejection by the court. HISTORY: RSMo , A.L p PRIOR REVISIONS ; ; Sufficiency of bond to be shown on settlements Whenever a final settlement is not made within one year, the court. before extending the time for making such settlement and before approving any annual settlement thereafter made, shall require the executor or administrator to establish the sufficiency of his bond and if the court has reason to believe that any surety thereon has become a nonresident of the state or has died or become insolvent or if, for any reason, the bond appears insufficient the court shall direct the executor or administrator to give new or additional security. HISTORY: RSMo , A.L p PRIOR REVISIONS: ; ; Inquiry into condition of sureties--order for new bond If the judge has reasonable grounds to believe that a surety on the bond of any executor or administrator has died, removed from the state or is or likely to become insolvent or that the principal on the bond is likely to become insolvent or is wasting the estate or that the bond was not taken according to law, he at any time, either on his own motion or on the motion of an interested party, including a surety, may set a time and place for examination into the matters and shall give notice thereof to the principal in the bond. The court, after such hearing, may direct the executor or administrator to give another bond! HISTORY: RSMo ,29,32, A.L p PRIOR REVISIONS: ,28,29,32; ,27, 28, 31; ,35, Court may require, increase or decrease bond, when The court may require bond, or increase or decrease the amount of the bond of the personal representative when good cause therefor appears. The clerk shall inquire into the adequacy of the bond upon the filing of an inventory, appraisement or settlement or when real estate is sold, mortgaged, leased or taken possession of under order of court and, if the bond is found to be in an amount in excess of or less than that last fixed under section , the court shall enter an order requiring an additional bond or reducing the penalty of the existing bond. HISTORY: L p , A.L S EFFECTIVE Effective Letters revoked on failure to give bond If an executor or administrator fails to give a bond as required by the court, within the time fixed by the court, his letters shall be revoked. HISTORY: RSMo ,32, A.L p PRIOR REVISIONS: ,32; ,31; ,39 59

61 Effect of new bond Any bond given to replace a former bond, when given and approved, discharges the former sureties from any liabilities arising from any misconduct of the principal after the filing of same, and the former sureties are only liable for misconduct which happened prior to the giving of the new bond. The executor or administrator shall be required to file an account of his administration to the date of the new bond. The new bond binds the sureties thereon with respect to acts and omissions of the executor or administrator from the time when the sureties on the original bond are no longer liable therefor, or from such prior time as the court directs. HISTORY: RSMo , A.L p PRIOR REVISIONS: ; ; The provisions of subsections 1, 2, and 3 of this section shall apply to a depositary which has executed a certification pursuant to section In assessing damages pursuant to this section, the court may apportion the losses sustained between the depositary and the obligors on the bond of the personal representative on the following basis: (1) Those damages sustained asa result of the failure of the depositary to hold the assets delivered to it in restricted custody shall be assessed against the depositary and 'the personal representative, together with that proportion of the consequential damages determined to have resulted by reason of such failure; (2) All other damages sustained as a result of the breach of the obligation of the bond shall be assessed against the obligors on the bond. HISTORY: L 1955 p , A.L S.B. 637 EFFECTIVE Effective Execution of bond deemed appearance by suretyuprocedure on breach of obligation of bond 1. The execution of the bond of a personal representative is deemed an appearance by the surety in the proceeding for the administration of the estate including all hearings with respect to the bond. 2. On breach of the obligation of the bond of the personal representative, the court, after notice to the obligors in the bond and to such other persons as the court directs, may summarily determine the damages as a part of the proceeding for the administration of the estate, and by appropriate process enforce the collection thereof from those liable on the bond. The determination and enforcement may be made by the court upon its own motion or upon application of a successor personal representative, or of any other personal representative, or of any other interested person. The court may hear the application at the time of settling the accounts of the defaulting personal representative or at such other time as the court may direct. Damages shall be assessed on behalf of all interested persons and may be paid over to the successor or other nondefaulting personal representative and distributed as other assets held by the personal representative in his official capacity. 3. If the court has already determined the liability of the personal representative, a surety shall not be permitted thereafter to deny liability in any action or hearing to dete~mine their liability; but the surety may intervene in any heanng to determine the liability of the personal representative Successor may sue on bond The succeeding administrator, or remaining executor or administrator, may proceed in any court having jurisdiction in civil actions against an executor or administrator and his sureties, or either of them or against any other person possessed of any part of the estate. HISTORY: RSMo , A.L p PRiOR REVISiONS: ; ; Limitations on suits Proceedings upon the bond of a personal representative shall not be brought subsequent to one year after the personal representative's discharge. HISTORY: L 1955 p , A.L S.B. 494 EFFECTIVE Effective ~1~63) In suit for accounting brought by heir at law against ong~nally appointed administratrix, the succeeding administrator de bonis non, and the surety on bond of administratrix statute of limit~tions, applic~ble would be section (5) 'rather than section since the suit appeared to be action for relief on ground of fraud and not a suit on the surety bond. Stark v. Cole (A.) 373 SW,2d 473. ' 60

62 Action on bond generally The bond of an executor or administrator may be sued on at the instance of any party injured, in the name of the state, to the use of such party, for waste or mismanagement of the estate, or other breach of the conditions of the bond; and damages shall be assessed thereon as on bonds with collateral conditions. HISTORY: RSMo , A.L p PRIOR REVISIONS: ; ; (1963) Suit for accounting by heir at law against originally appointed administratrix, the succeeding administrator de bonis non, surety on bond of administratrix was properly brought in heir's own name since plaintiffs case was bottomed on allegations of fraud occurring after the surety had performed its obligation under the bond by paying sum to the estate and cause of action was one personal to plaintiff. Stark v. Cole (A.), 373 SW,2d Inventory and appraisement Within thirty days after letters are granted on the estate of a deceased member of any partnership, the surviving partner or partners shall file a verified inventory of the partnersh ip in the probate division in which letters are issued on the estate, to be a part of the court records of the administration of the decedent's estate. If no letters are issued on the decedent's estate in this state the surviving partners shall file the inventory within sixty days after the death of a partner in the probate division of the circuit court of the county of which the decedent was a resident at the time of his death or, if a nonresident, in the probate division of the circuit court of the county in which the partnership had its principal business office in this state, the inventory to be indexed under the name of the deceased partner and also the name of the partnership and to be a part of the court records of the administration of the partnership. The inventory shall state the proportionate share of the deceased partner, the aggregate value of the assets of the partnership and the aggregate of its liabilities, but no detailed list of assets or liabilities is required unless ordered by the court. Upon the verified petition of any interested party or on its own motion the court, in its discretion, may order the surviving partners to file a detailed list of assets and liabilities of the partnership and it also may order that the assets of the partnership be appraised as provided by law for the appraisal of the assets of a decedent. On the request of any surviving partner, the court may issue a certificate reciting that he has filed an inventory of the assets of the partnership in accordance with this section and that he will be held to account to the executor or administrator of the estate of the decedent in accordance with the Uniform Partnership Law. HISTORY: L p , A.L p. 829, A.L H.B EFFECTIVE Effective NOTES APPLICABLE TO ENTIRE CHAPTER CROSS REFERENCES: Administrators, profit on publication of notices or advertisements prohibited, RSMo , Adversary probate proceeding defined for Chap. 473, RSMo Attachment proceeding, administrator made party, where, RSMo Bi-state development agency, bonds of, investment in authorized, RSMo Cattle, female, sale by estate, brucellosis vaccination law special provisions, RSMo Declaratory judgment, executor or administrator may obtain as to rights, RSMo Definition of terms and general provisions, Chap. 472, RSMo Disclaimers of property, Chap. 469, RSMo Durable power of attorney, RSMo to Foreign administrator, suits by, RSMo Mortgages, satisfaction by executor or administrator, RSMo to Nonprobate transfers, RSMo to Probate code, definitions, RSMo Public officer, executor or administrator of to deliver records, RSMo to Records of probate division, RSMo Savings accounts in insured savings and loan associations, investment in authorized, RSMo Tax assessment list, executor or administrator to give assessor, RSMo Settlement The surviving partner may continue in possession of the partnership estate, pay its debts, and settle its business, shall account to the executor or administrator of the estate of the decedent, and shall pay over such balances as from time to time are payable to him. Upon the verified petition of the executor or administrator or on its own motion the probate division whenever it appears necessary may order the surviving partner to account to the court. HISTORY: L p , A.L H.B EFFECTIVE Effective

63 Security If the surviving partner commits waste or if it appears to the court that it is for the best interest of the estate of the decedent, the probate division may order the surviving partner to give security for the faithful settlement of the partnership affairs and the payment to the executor or administrator of any amount due the estate. HISTORY: L p , A.L H.B EFFECTIVE Effective Citation of partner If the surviving partner fails or refuses to file the inventory, list of liabilities, or appraisal or it appears proper to order the surviving partner to account to the probate division or to file a bond, the court shall order a citation to issue requiring the surviving partner to appear and show cause why he has not filed an inventory, list of liabilities, or appraisal or why he should not account to the court or file a bond. The citation shall be served not less than ten days before the return day designated therein and shall be served and returned in the manner provided for summons in civil cases. If the surviving partner neglects or refuses to file an inventory, list of liabilities, or appraisal or fails to account to the court or to file a bond, after he has been directed to do so, the court may commit him to jail until he complies with the order of the court. Where the surviving partner fails to file a bond after being ordered to do so by the court, the court may also appoint a receiver of the partnership estate with like powers and duties of receivers in chancery, and order the costs and expenses of the proceedings to be paid out of the partnership estate or out of the estate of decedent, or by the surviving partner personally or partly by each of the parties. HISTORY: L p , A.L H.B EFFECTIVE Effective Inventory and appraisement.. classification of property 1. Within thirty days after letters are granted. unless a longer time is granted by the court, the personal representative shall make and return an inventory and appraisement, in one ~ritte~ instrument, of all of the property of the decedent, including exempt property, which comes to his possession or knowledge, a statement of all encumbrances, liens, and other charges on any item, and all other property possessed by decedent at the time of his death. The property shall be classified therein as follows: (1) Real property, with plat or survey description and the street address or approximate direction and distance from any city or town, and the popular name thereof, if any; (2) Furniture, household goods, and wearing apparel, but no detailed appraisement or listing of the items thereof is required; (3) Corporate stocks described by name, number of shares, class of stock; (4) Mortgages, bonds, notes, and other written evidences of debt. together with interest due thereon. described by name of debtor, recording data. and other identification; (5) Bank accounts. insurance policies payable to the personal representative. and money; (6) All other personal property accurately identified, including a statement of the decedent's proportionate share in any partnership and of its net value as shown in the inventory required by section No detailed appraisement or listing of the assets of the partnership property is required in the inventory filed by the personal representative; (7) All property possessed but not owned by the decedent at his death shall be listed in the inventory, but separately from other property, together with a statement as to the knowledge of the personal representative as to its ownership. 2. At any time when it appears necessary. the judge or clerk may authorize the personal representative to employ a qualified and disinterested appraiser to assist him in ascertaining the fair market value, as of the date of the decedent's death, of any asset the value of which may be subject to reasonable doubt. Different persons may be employed to appraise different kinds of assets included in the estate. The name and address of any appraiser shall be indicated on the inventory with the item or items he appraised. HISTORY: L 1955 p , A.L p. 829, AL 1959 S.B. 141, A.L 1980 S.B. 637, AL 1981 S.B. 117, A.L 1996 S.B 494 and EFFECTIVE Effective (S.B. 494) (S.B 869) NOTES APPLICABLE TO ENTIRE CHAPTER CROSS REFERENCES: Administrators, profit on publication of notices or advertisements prohibited, RSMo , Adversary probate proceeding defined for Chap. 473, RSMo Attachment proceeding, administrator made party, where, RSMo Bi-state development agency, bonds of, investment in authorized RSMo 70.3n ' Cattle, female, sale by estate, brucellosis vaccination law special provisions, RSMo Declaratory judgment, executor or administrator may obtain as to rights RSMo ' Definition of terms and general provisions, Chap. 472, RSMo Disclaimers of property, Chap. 469, RSMo Durable power of attomey, RSMo to Foreign administrator, suits by, RSMo Mortgages, satisfaction by executor or administrator, RSMo to Nonprobate transfers, RSMo to Probate code, definitions, RSMo Public officer, executor or administrator of to deliver records, RSMo to Records of probate division, RSMo Savi~gs aooounts in insured savings and loan associations, investment in authonzed, RSMo Tax assessment list, executor or administrator to give assessor RSMo ' 62

64 Affidavit to inventory The administrator or executor and appraisers shall annex to the inventory and appraisement an affidavit stating that it is a full inventory and description of all the property of the decedent which has come into the possession or knowledge of the executor or administrator, and of the property in the possession of the decedent at his death, as far as they know, and an appraisement of all the property subject to appraisement. The executor or administrator shall make an additional affidavit stating that he was not in debt or bound in any contract to the decedent at the time of his death, except as stated in the inventory and appraisement. The administrator or executor has power to administer the oaths for the affidavits required by this section and section HISTORY: RSMo , A.L 1955 p , A.L p. 829, A.L 1959 S.B. 141 PRIOR REVISIONS ; ; Additional inventory If, after making the first inventory and appraisement, any other real or personal estate of the deceased comes to the possession or knowledge of the executor or administrator, he shall file a similar additional inventory and appraisement thereof. HISTORY: RSMo , A.L 1955 p PRIOR REVISIONS ; ; Compensation of appraisers The court shall make a reasonable allowance to each appraiser for his compensation, taking into consideration the amount and character of the services rendered by each. and his reasonable travel and other expenses. HISTORY: L 1955 p Debt of executor not discharged If any person appoints his debtor executor of his will, the appointment does not discharge the debt, but the debt constitutes an asset in his hands. HISTORY: RSMo , A.L 1955 p PRIOR REVISIONS: ; ; Debt of administrator, assets All debts due by an administrator to his testator or intestate are considered assets in his hands. HISTORY: RSMo , A.L 1955 p PRIOR REVISIONS: ; ; Inventory as evidence Inventories and appraisements may be given in evidence, but are not conclusive for or against any executor or administrator, but other evidence may be introduced to vary the effect thereof. HISTORY: RSMo , A.L p PRIOR REVISIONS: ; ; Devolution of estate at death When a person dies, his real and personal property, except exempt property, passes to the persons to whom it is devised by his last will, or, in the absence of such disposition, to the persons who succeed to his estate as his heirs; but it is subject to the possession of the executor or administrator and to the election of the surviving spouse and is chargeable with the expenses of administering the estate, the payment of other claims and allowances to the family, except as otherwise provided in this law. HISTORY: L 1955 p NOTES APPLICABLE TO ENTIRE CHAPTER CROSS REFERENCES: Administrators, profit on publication of notices or advertisements prohibited, RSMo , Adversary probate proceeding defined for Chap. 473, RSMo Attachment proceeding, administrator made party, where, RSMo Biostate development agency, bonds of, investment in authorized, RSMo Cattie, female, sale by estate, brucellosis vaccination law special provisions, RSMo Declaratory judgment, executor or administrator may obtain as to rights, RSMo Definition of terms and general provisions, Chap. 472, RSMo Disclaimers of property, Chap. 469, RSMo Durable power of attorney, RSMo to Foreign administrator, suits by, RSMo Mortgages, satisfaction by executor or administrator, RSMo to Nonprobate transfers, RSMo to Probate code, definitions, RSMo Public officer, executor or administrator of to deliver records, RSMo to Records of probate division, RSMo Savings accounts in insured savings and loan associations, investment in authorized, RSMo Tax assessment list, executor or administrator to give assessor, RSMo

65 Possession of assets 1. Every executor or administrator has a right to and shall take possession of all the personal property of the decedent except exempt property of the surviving spouse and unmarried minor children, and administer it in accordance with this law. 2. The court, on its own motion or on the motion of any interested person, may order the executor or administrator to take possession of the real estate of the decedent when necessary for the payment of claims or for the preservation thereof. When ordered to take possession of real estate, the executor or administrator shall pay the taxes and collect the rents and earnings thereon until the estate is settled or until delivered by order of the court to the distributees. He may rent the real property of the estate for a period not exceeding one year. He shall keep in tenantable repair the buildings and fixtures under his control and may protect the same by insurance. He may maintain an action for the possession of the real property or to determine the title to the same. HISTORY: L 1955 p CROSS REFERENCES: Exempt property and allowances to surviving spouse and children, RSMo to Uniform act for simplification of fiduciary security transfers, RSMo to (1962) Administrator was properly refused credit for expenses of operation of deceased's farm where he had not sought or obtained an order from the probate court authorizing him to do so. In re Alexander's Estate (Mo.), 360 S.w.2d ,267. Assets for payment of claims The real and personal property liable for the payment of claims includes all property transferred by the decedent with intent to defraud his creditors or any of them, or transferred by any other means which is in law void as against his creditors or any of them, and the executor or administrator may recover the property, so far as necessary for the payment of claims, and take such steps as are necessary to recover the same. Property recovered by the executor or administrator constitutes general assets for the payment of all creditors; but no property so transferred shall be taken from anyone who purchased it for a valuable consideration, in good faith and without actual or constructive knowledge of the fraud. HISTORY: L 1955 p Collection of debts, prosecution and defense of suits Executors and administrators shall collect all money and debts of every kind due to the decedent, and give receipts and discharges therefor, and shall commence and prosecute all actions which may be maintained and are necessary in the course of his administration, and defend au actions brought against him. HISTORY: RSMo , A.L p PRIOR REVISIONS: ; ; CROSS REFERENCES: Administrator of deceased life tenant to collect rents due deceased, remedy, RSMo , Execution ordered by administrator d.b.n., when, RSMo (1956) Administrator was entitled to intervene and recover surplus proceeds arising from mortgage foreclosure sale of his decedent's land, as against purchaser from heir who contended administrator had no right to real estate. Trenton Motor Co. v. Watkins (A.), 291 SW2d Actions instituted by or against decedent, duties Executors and administrators shall prosecute and defend all actions commenced by or against the decedent during his lifetime which are maintainable by or against the executor or administrator. HISTORY: RSMo , A.L 1955 p PRIOR REVISIONS: ; ; Compromise of debts due estate When it appears for the best interest of the estate, the executor or administrator, on order of the court, may effect a fair and reasonable compromise with any debtor or other obligor, or extend, renew or in any manner modify the terms of any obligation owing to the estate. If the executor or administrator holds a mortgage, pledge or other lien upon property of another person, he may accept, in lieu of foreclosure, a conveyance or transfer of the encumbered assets from the owner thereof in satisfaction of the indebtedness secured by the lien, if it appears for the best interest of the estate and if the court so orders. In the absence of prior authorization or subsequent approval of the court, no compromise binds the estate. HISTORY: L 1955 p

66 Purchase at foreclosure of mortgage held by estate Whenever any note, bond, account, or other indebtedness belonging to the estate of any decedent is secured by mortgage, deed of trust, vendor's lien or other lien on any property, and the same is due and unpaid, the administrator or executor of the estate, under the order of the court, may purchase the property at the sale made under the mortgage, deed of trust or other lien, at a price not exceeding the amount due the estate on the note, bond, account or other indebtedness. HISTORY: RSMo , A.L p PRIOR REVISIONS: ; ; Title to real estate, how taken on such purchase how administered 1. Where real estate is acquired under either section or , the conveyance thereof shall be made to the executor or administrator who holds it in trust for the same persons, whether creditors, heirs or legatees, who would be entitled to the proceeds of the mortgage if the premises had been redeemed; but if it appears to the court that the property is not required for the payment of debts, legacies or family allowances, the court shall direct that the deed be made so as to effect a conveyance to the heirs or devisees of the decedent. 2. Any real estate acquired by an executor or administrator under section or constitutes assets in his hands, and shall be administered and accounted for as such, and may be leased or sold for the payment of debts in the same manner as any real estate of which the decedent died seized, but the sale thereof shall be made upon the order of the court and upon the petition filed as provided for by law in other cases. HISTORY: RSMo ,96, A.L p PRIOR REVISIONS: ,96; ,95; , Encumbered property to be redeemed, when 1. If any person dies leaving real or personal property encumbered by mortgage, deed of trust, pledge, or other lien, or owning any equity of redemption, the court, in accordance with the provisions of this subsection, may order the executor or administrator to redeem the same, in whole or in part, out of other personal assets of the estate, or may order the executor or administrator to sell other real estate or to mortgage or pledge real or personal property of the estate in his hands for the purpose of raising money for such redemption. If there is a will section applies with respect to the application or use of the property for the redemption. When not prejudicial to the rights of creditors, the court may order redemption, if it finds: (1) The property is not specifically devised by a will and redemption will promote the interests of the estate and upon payment of the secured debt the security will become an asset of the estate; or (2) The will of the decedent, either by express provision or clear implication. shows that the decedent intended that the secured debt, in the event of his death, should be paid out of other assets of his estate and the security exonerated from the lien of the debt; or (3) From the terms of the loan or mortgage agreement or from the circumstances surrounding the loan or mortgage transaction, that decedent, whether testate or intestate, intended that the debt, in the event of his death, should be paid out of the other assets of the estate and that the security should be thereby exonerated from the lien of the debt. 2. No redemption of property securing an obligation which is not due shall be compelled under this section without the consent of the holder of the secured debt unless a claim is filed thereon or the instrument creating the obligation permits redemption. 3. The court may order all of the right, title and interest of the deceased in the security to be sold for the same purposes and under the same conditions and procedure as is provided in this law for sales of other property of the decedent. HISTORY: L p , A.L p. 829 PRIOR REVISIONS: ; ; CROSS REFERENCES: Foreclosure of mortgages stayed by death of mortgagor, RSMo

67 Payment of debt of decedent secured by property of another"procedure When any indebtedness of a decedent is secured by mortgage, pledge or other lien on property which is owned by another or which, on the death of the decedent, becomes the exclusive property of another, but is not subject to. administration, the indebtedness shall be allowed and paid as other claims against the estate of the decedent unless it appears to the court that (1) the mortgage, pledge or lien was given to secure payment of the purchase price of the encumbered property or of an obligation incurred in connection with the improvement of the property, or (2) the decedent did not actually receive a substantial consideration in the transaction in which the indebtedness arose, or (3) the decedent had exclusive ownership and control of the property during his lifetime and it appears from the loan or mortgage agreement or circumstances surrounding the transaction giving rise to the mortgage, pledge or lien that decedent intended that the security should be exhausted in case of his death before any payment thereon is made from his estate. If the holder of the secured debt does not institute proceedings for the allowance and payment thereof against the estate of the decedent within three months after publication of notice of letters, then before the time for filing of claims expires the owner of any property given as security for an indebtedness under circumstances described in this section may petition the court for such orders as are necessary for the protection of his rights and for the allowance of so much of the indebtedness against the estate as will be sufficient to exonerate the security. Notice of hearing on the petition shall be given to the executor or administrator and to the holder of the indebtedness. After hearing the court may make such order in the premises as may be necessary to preserve the rights of the parties, including, if proper, an allowance of the claim against the estate. HISTORY: L p , A.L p , Disposition of valueless or encumbered property When any personal or real property is valueless, or is so encumbered, or is in such condition that it is of no benefit to the estate, the court may by order authorize the personal representative to make such disposition thereof as the court may find to be appropriate, including, where appropriate, the immediate distribution thereof to the heirs or legatees, the abandonment, giving away or.destruction thereof, the relinquishment of all interest of the estate therein, or such other disposition as may be appropriate in the circumstances. HISTORY: l.1955 p A.L S.B. 637 EFFECTIVE Effective Expenditures for preservation of property When any property of an estate is in such condition as to be in imminent danger of loss or destruction or loss in value, the executor or administrator may make such expenditures as are reasonably and prudently required to avoid such loss, destruction, or loss in value until he can obtain consideration of the matter by the court, and on approval of the court such expenditures shall be allowed as expenses of adminis~ration The court may by order authorize such further expenditures to prevent loss, destruction or loss in value as the interest of the estate requires, and shall allow them as expenses of administration. HISTORY: RSMo ,103, A.L p PRIOR REVISIONS: ,103; ,102; , Continuation of tusiness of decedent Upon a showing of advantage to the estate, the court may authorize the executor or administrator to continue any business of the decedent for the benefit of the estate; but if the decedent died testate and his estate is solvent, the order of the court is subject to the provisions of the will. The order may be with or without notice. If notice is not given to all interested persons before the order is made, the court shall promptly require the giving of notice to such interested persons as have not been previously notified to the effect that such order has been made and that they will have opportunity to show cause why it should not be set aside or modified. The order may provide: (1) For the conduct of the business solely by the executor or administrator, or as a corporation to be formed by the executor or administrator, or for the participation as a partner by the executor or administrator in a business in which the decedent was a partner, subject to applicable provisions of law and the agreement of the other person or persons continuing such business as partners; (2) The extent of the liability of the estate, or any part thereof, or of the executor or administrator, for obligations incurred in the continuation of the business; (3) As to whether liabilities incurred in the conduct of the business are to be chargeable solely to the part of the estate set aside for use in the business or to the estate as a whole; and (4) As to the period of time for which the business may be conducted, and such other conditions, restrictions, regulations and requirements as the court orders. HISTORY: l p

68 Specific execution of contract of decedent petition 1. If a decedent entered into a contract, specifically enforceable in equity, and did not execute the same in his lifetime, nor give power by will to execute the same, the other party, wishing specific execution of the contract, or the personal representative of the decedent, may present a verified petition to the court, setting forth the facts and stating that no part of the contract has been satisfied except as set forth, and praying that an order be made that the personal representative execute such contract specifically, by executing a deed for the same. 2. If the other party to the contract with the decedent is his personal representative, the personal representative may proceed against his copersonal representative, if any, in the same manner as prescribed by this law in other cases; but if there is no copersonal representative and he files the petition, the court shall appoint some suitable person as administrator ad litem who has the same powers and shall perform the same duties required of personal representative in such cases by this law. HISTORY: RSMo ,169,176, A.L p , A.L S.B. 637 PRIOR REVISIONS: ,170,177; ,169, 176; ,178,185 EFFECTIVE Effective Notice hearinguintervention Upon the filing of a petition for specific execution of the contract. the court shall fix the time and place for hearing thereon. Notice of the filing of the petition and of the time and place of hearing thereon, together with a copy of the petition, shall be served on the executor or administrator twenty days before the date of the hearing. The court may order notice of the filing of the petftion and of the time and place of hearing to be served by registered mail on the interested heirs or devisees whose addresses appear in the court's file and records in the estate. Any interested heir or devisee may appear and intervene, upon written application to intervene filed prior to the time of the hearing. HISTORY: RSMo , A.L p , A.l p. 829, A.l H.B ,310. Specific execution of contract of decedent. court order uwarranties conveyance or lease under will 1. If the court, after hearing all parties, believes that specific execution of such contract ought to be made, it shall make an order that the personaf representative execute and deliver an instrument of conveyance to the person entftled thereto upon performance of the contract. 2. The deed of conveyance shall refer in apt and appropriate terms to the order of court under which it is made, shall convey the property according to the order and shall be acknowledged by the personal representative. If the contract for a conveyance requires the giving of warranties, the deed to be given by the personal representative shall contain the warranties required. Such warranties shall be binding on the estate as though made by the decedent but shall not bind the personal representative personally. 3. If a personal representative has been given power by will to make a conveyance or lease, he may execute, in lieu of the foregoing procedure, and without order of the cuurt, a conveyance or lease to the person entitled thereto upon performance of the contract. 4. The deed made under this section is as effectual as if it had been executed by the decedent. HISTORY: RSMo ,172,173, A.L p , A.L S.B. 637, A.L H.B. 369 PRIOR REVISIONS: ,173,174; ,172, 173; ,181, ,313. Action for specific performance.. proceedings in probate division of circuit court A party entitled to specific execution of a contract for the conveyance of real estate shall proceed in the probate division of the circuit court under sections and HISTORY: l p , A.L p. 829, A.L H.B EFFECTIVE Effective PRIOR REVISIONS: ; ; EFFECTIVE Effective

69 Completion of contracts to purchase property exercise of options 1. If any person dies having purchased real or personal property, and has not completed the payment therefor, nor provided for its payment by will, the court may order the completion of payment upon the same findings and conditions as are required by section for the redemption of security for the decedent's debt. The court may, after notice to interested parties, order relinquishment, compromise or transfer of all such rights, title, and interest of the decedent in the property on such terms as the court finds to be for the benefit of the estate. This section shall not be construed to restrict any rights of the seller of the property. 2. If any person dies owning an option to purchase real or personal property, and it is to the advantage of the estate and will not be prejudicial to creditors or to specific devisees that such option be exercised, the court may by order authorize the exercise of the option by the executor or administrator and the payment by the executor or administrator of the purchase price Interest may be sold, when If the court believes that, after payment of claims, there will not be sufficient assets to pay for the real or personal property referred to in section , it may order the executor or administrator to sell all the right, title and interest of the decedent therein, including all right of the decedent to any option to purchase the real or personal property. HISTORY: RSMo A.L 1955 p Procedure in case of sale of school lands If any real estate referred to in subsection 1 of section has been purchased from any officer authorized by law to sell school lands. the court may order the same relinquished; and in such cases the officers may accept the relinquishment and surrender the obligation of the decedent. HISTORY: RSMo , A.l p PRIOR REVISIONS: ; ; Conveyances, how made procedure In all cases of relinquishment of the interest of a decedent in real estate under sections and and in all cases of the sale of the interest of a decedent in real estate under sections and , the executor or administrator may make the relinquishments by deed or may convey to the purchaser all the right, title and interest the testator or intestate had in and to the real estate at the time of his death. Before any relinquishment or sale referred to in this section is ordered by the court, the executor or administrator shall proceed on petition and notice the same as is required by this law for proceedings to sell real estate to pay debts for other purposes. HISTORY: RSMo , A.L 1955 p PRIOR REVISIONS: ; ; PRIOR REVISIONS: ; ; Interest relinquished to vendor, when If the real or personal property referred to in section has been purchased from any person, or if an option for its purchase has been obtained from any person, the court, if considered advantageous to the estate, may order the same relinquished to such person on the best terms that can be agreed upon. HISTORY: RSMo , A.l p PRIOR REVISIONS: ; ;

70 Investment of surplus funds If it appears that there is a surplus of money in the hands of the personal representative that will not shortly be required for the expenses of administration, or payment of claims, taxes or other required disbursements, the personal representative shall make such investment of the money on or after August 28, 1998, in accordance with the provisions of the Missouri prudent investor act, sections to , RSMo. The personal representative may also, without an order of court, invest in (1) direct obligations of, or obligations unconditionally guaranteed as to principal and interest. by the United States, or (2) accounts of savings and loan associations to the extent the accounts are insured by the Federal Savings and Loan Insurance Corporation, without inquiry as to whether the investment is reasonable and prudent. An order of court authorizing investments pursuant to this section does not relieve a personal representative or his sureties of responsibility and liability if the investment made is not in fact in accordance with the Missouri prudent investor act, sections to , RSMo. HISTORY: RSMo , A.L p , A.L p. 829, A.L S.B. 637, AL S.B. 700 Revision, AL 1998 H.B PRIOR REVISIONS: ; ; CROSS REFERENCES: Multinational banks, securities and obligations of, investment in, when, RSMo , Bank deposits Whenever it is consistent with proper administration of the estate, the executor or administrator may, without an order of court, deposit, as a fiduciary, the funds of the estate in a banking institution in this state as a general deposit and either as a demand, time or savings deposit. HISTORY: L p , A.L p Discovery of assets. procedure for 1. Any personal representative, administrator, creditor, beneficiary or other person who claims an interest in property which is claimed to be an asset of an estate or which is claimed should be an asset of an estate may file a verified petition in the probate division of the circuit court in which said estate is pending seeking determination of the title, or right of possession thereto, or both. The petition shall describe the property, if known, shall allege the nature of the interest of the petitioner and that title or possession of the property, or both, are being adversely withheld or claimed. The court may order the joinder, as a party, of any person who may claim an interest in or who may have possession of any such property. 2. Service of summons, petition and answer thereto together with all subsequent proceedings shall be governed by the Missouri Rules of Civil Procedure. Any party may demand a jury trial. 3. Upon a trial of the issues, the court shall determine the persons who have an interest in said property together with.the nature and extent of any such interest. The court shall direct the delivery or transfer of the title or possession, or both, of said property to the person or persons entitled thereto and may attach the person of any party refusing to make delivery as directed. If the party found to have adversely withheld the title or possession, or both, of said property has transferred or otherwise disposed of the same, the court shall render a money judgment for the value thereof with interest thereon from the date the property, or any interest therein, was adversely withheld. In addition to a judgment for title and possession, or either, or for the value thereof, the court may enter a judgment for all losses, expenses and damages sustained, if any, but not including attorney fees, if it finds that the property was wrongfully detained, transferred or otherwise disposed of. 4. If the court finds that a complete determination of the issues cannot be had without the presence of other parties, the court may order them to be brought in by an amended or supplemental petition. The court shall order the joinder of the personal representative of the estate if he is not named as a party. HISTORY: RSMo , AL p , A.L S.B. 210, A.L H.B. 1634, A.L S.B. 700 ReviSion. AL S.B. 88 (1958) Where money was given another by deceased to use for the benefit of deceased and upon her decease to be kept by the donee, a trust was created, and probate court had jurisdiction in proceeding under this statute to determine whether equitable title had ripened into legal title on deceased's death. Covey v. VanBibber (A), 311 SW.2d 112. (1961) Where ultimate issue in proceeding to discover assets was whether the assets constituted trust property or whether the trust had been revoked by decedent prior to her death, the probate court had no jurisdiction because the action is strictly equitable in nature. In re Frech's Estate (Mo.), 347 S.w.2d 224. (1963) Petition by executor held to state cause of action to establish and enforce a trust as to money held in joint bank account in names of decedent and defendant against contention that remedy at law was adequate in that probate court had jurisdiction to determine executor's claims in discovery proceedings and that such jurisdiction was exclusive. Matthews v. Pratt (Mo.), 367 SW.2d 632. (1968) In proceeding under this section evidence supported administrator's contention that items in controversy were held either in joint tenancy or tenancy by the entirety and were not assets of the estate. In re Estate of Jeffries (Mo.), 427 SW.2d 439. (1977) Petition to seek determination of title or right of possession to property may allege contingent interests on property as well as a specific interest. Clair v. Whittaker (Mo.). 557 S.w.2d 236. (1987) Failure to join the personal representative in an action to discover assets pursuant to this section is a jurisdictional defect since personal representative is an indispensable party pursuant to subsection 4 of this section. In Re Estate of Pilla, 735 S. W.2d 103 (Mo.App.1987). 69

71 limitations on filing of claims when claims barred 1. Except as provided in section , all claims against the estate of a deceased person, other than costs and expenses of administration, exempt property, family allowance, homestead allowance, claims of the United States and claims of any taxing authority within the United States, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise, which are not filed in the probate division of the circuit court within six months after the date of the first published notice of letters testamentary or of administration or, if notice was actually mailed to, or served upon, such creditor, within two months after the date such notice was mailed, or served, whichever later occurs, or which are not paid by the personal representative, within six months after the first published notice of letters testamentary or of administration, are forever barred against the estate, the personal representative, the heirs, devisees and legatees of the decedent. No contingent claim based on any warranty made in connection with the conveyance of real estate is barred under this section. This six-month period does not extend any other applicable limitation periods. 2. Unless written notice of actions instituted or revived under section or is filed in the probate division within six months after the first published notice of letters, no recovery may be had in any such action on any judgment therein against the personal representative out of any assets being administered upon in the probate division or from any distributee or other person receiving the assets. Timely filing of the claim against the estate, under this section, within six months after the first published notice of letters, whether said claim is filed before or after the institution or revival of an action against the personal representative or the estate shall satisfy the requirement of written notice herein imposed. 3. Nothing in this section affects or prevents any action or proceeding to enforce any mortgage, pledge or other lien upon property of the estate; except that attachment, judgment, and execution liens shall be enforced as provided in this chapter and not otherwise. HISTORY: L p , A.L p. 829, A.L S.B. 305, A.L p. 551, A.L H.B. 1634, A.L S,B. 637, A.L H.B. 145, A.L S.B. 88, A.L S.B. 494 CROSS REFERENCES: Limitations extended by death, survival, RSMo Survival of causes of action, RSMo , , , (1960) Where suit on personal injuries claim was filed within the nine months but notice thereof was not filed in the probate court within that time the suit would be dismissed because barred by the nonclaim statute. The 1959 amendment with respect to making the bar applicable only to assets of the estate discussed. Smith v. Maynard (Mo.), 339 S.w.2d 737. (1960) Where claim for compensation for services as originally filed was based on alleged contract to make provision for such compensation by will, the claim could be amended after expiration of nonclaim period to proceed on quantum meruit Reighley v. Fabricius Estate (A.), 332 SW,2d 76. (1961) A proceeding could be instituted in the circuit court for an accounting and distribution of an escrow fund between the parties entitled thereto notwithstanding a claim therefor had previously been filed in a probate court. Stark v. Moffit (A.), 352 S.w.2d 165. (1962) Actions against administrator of estate for personal injuries were barred where actions had been barred under nonclaim statute prior to statute's amendment since amendment did not extend new privileges granted therein to bringing of new actions whichhad been extinguished prior to effective date of amendment. State ex rei. Whitaker v. hall (Mo.), 358 S.w.2d 845, Potts v. Vadnais (Mo.), S.W.2d 543. (1963) Suit to enforce contractual right of surviving partner under partnership agreement to purchase deceased partner's interest did not constitute a claim against the deceased partner's estate within the meaning of the nonclaim statutes. Strumberg v. Mercantile Trust Co. (Mo.), 367 S.w.2d 535. (1963) Nunc pro tunc order of probate court to correct record to show the filing of copy of petition and duplicate copy of summons in personal injury suit against administratix of estate based solely on oral testimony of attomey that he handed instruments to probate clerk on certain date was error. In re Grooms' Estate (A.), 370 S.w.2d 709. (1964) Where condemnation proceeding was pending at time of condemnor's death, the fact that condemnor did not file notice of the action in probate court did not call for dismissal of condemnor's exceptions to commissioners' report and payment to condemnor of difference between the commissioners' award and smaller jury verdict was not recovery on a "judgment" within meaning of this section. Condemnation damages were not assets to be administered in probate court until administrators exercised their right to draw down amount deposited. St. Louis Housing Authority v. Bames (Mo.), 375 SW,2d 144. (1967) This section is mandatory and its prupose is to terminate all claims, whether due, not due, or contingent. In re Estate of Bierman (A.), 410 SW,2d 342. (1985) Held, due process does not require any more than publication notice to a creditor that a decedent's estate is being administered and the notice provisions of sections and , RSMo, are constitutional. Estate of Busch v. Ferrell Duncan Clinic (Mo. banc) 700 S.w.2d 87. NOTES APPLICABLE TO ENTIRE CHAPTER CROSS REFERENCES: Administrators, profit on publication of notices or advertisements prohibited, RSMo , Adversary probate proceeding defined for Chap. 473, RSMo Attachment proceeding, administrator made party, where, RSMo Bi-state development agency, bonds of, investment in authorized, RSMo Cattle, female, sale by estate, brucellosis vaccination law special provisions, RSMo Declaratory judgment. executor or administrator may obtain as to rights, RSMo Definition of terms and general provisions, Chap. 472, RSMo Disclaimers of property, Chap. 469, RSMo Durable power of attomey, RSMo to Foreign administrator, suits by, RSMo Mortgages, satisfaction by executor or administrator, RSMo to Nonprobate transfers, RSMo to Probate code, definitions. RSMo Public officer, executor or administrator of to deliver records, RSMo to Records of probate division, RSMo Savings accounts in insured savings and loan associations, investment in authorized, RSMo Tax assessment list, executor or administrator to give assessor, RSMo

72 Suits pending at decedent's death deemed duly filed, when--personal representative to list pending actions--period of nonclaim not affected 1. Any action pending against any person at the time of his death, which, by law, survives against the personal representative, is considered a claim duly filed against his estate from the time substitution of the personal representative for the deceased defendant, or motion therefor, is made and written notice thereof is filed in the probate division. 2. Within ninety days after the appointment of a personal representative, he shall file with the probate division a verified statement of all actions, known to him, pending against his decedent at decedent's death. Within this ninetyday period, the personal representative of a decedent against whom any action, known to the personal representative was pending at the date of death, shall notify in writing all adverse parties to the action or their attorneys of record therein, if any, and the clerk of the court in which the action was pending, stating the date of decedent's death, the name of the court which granted letters testamentary or of administration, the name and address of the person or persons to whom the letters were granted, the number of the estate, and the date of the first publication of notice of granting the letters testamentary or of administration. Nothing herein contained, however, shall be construed as extending, suspending, or in any other way affecting the period of nonclaim provided by section In the case of the corporate personal representative, the corporation shall be chargeable with the knowledge of the individual or individuals conducting the administration of the estate. In the case of multiple personal representatives, a personal representative having no knowledge of the pendency of a suit against the decedent shall not be chargeable with the knowledge of a copersonal representative. No personal representative shall have any liability for failing to give notice. HISTORY: RSMo , A.L p , A.L S.B. 305, A.L p. 642, A.L H.B. 1634, A.L S.B. 637 PRIOR REVISIONS: ; ; EFFECTIVE Effective Actions commenced after decedent's death deemed filed, when Any action commenced against a personal representative, after death of the decedent, is considered a claim duly filed against the estate from the time of serving the original process on the personal representative, and the filing of a written notice in ihe probate division of the institution of such action within the time prescribed in section HISTORY: RSMo ,A.L.1955p ,A.L.1959 S.B. 305, A.L H.B. 1634, A.L S.B. 637 PRIOR REVISIONS: ; ; EFFECTIVE Effective (1962) Actions against administrator of estate for personal injuries were barred where actions had been barred under nonclaim statute prior to statute's amendment since amendment did not extend new privileges granted therein to bringing of new actions which had been extinguished prior to effective date of amendment. State ex rei. Whitaker v. Hall (Mo.) 358 S.w.2d 845. Potts v. Vadnais (Mo.), 362 S.W.2d Establishment of claim by judgment- judgment deemed filed, when 1. A person having a claim against an estate may establish the same by the judgment or decree of some court of record, in the ordinary course of proceeding, upon filing a copy of the judgment or decree in the probate division. 2. Except where notice of revival of an action or of institution of an action is filed as required by section or , any judgment or decree is deemed filed within the meaning of section as of the time a copy of the judgment or decree is filed in the probate division as required by this section. HISTORY: RSMo , A.L p , A.L H.B. 1634, A.L S.B. 637 PRIOR REVISIONS: ; ; EFFECTIVE Effective (1961) Personal injury action which survived after death of defendant occurring six months before the amendment of the nonclaim statutes did not abate where plaintiff failed to comply with the original statutes but complied with the statutes as amended. Rabin v. Krogsdale (Mo.), 346 S.w.2d

73 Claims. form and verification--claim to be established bv evidence 1. No claim other than for costs and expenses of administration shall constitute a claim against an estate unless it is in writing, stating the nature and amount thereof, if ascertainable, and is signed by the claimant, or by some person for him who has knowledge of the facts, stating that to the best of his knowledge and belief he has given credit to the estate for all payments and offsets to which it is entitled and that the balance claimed is justly due. 2. If a claim is founded on a written instrument, the original or a copy thereof with all endorsements shall be attached to the claim. The original instrument shall be exhibited to the personal representative, upon demand. unless it is lost or destroyed, in which case its loss or destruction shall be stated in the claim. 3. The statement of claim herein required shall not be received as any evidence of the claim but such claim shall be established by competent evidence before it is paid or adjusted. 4. Upon the filing of any claim, the probate clerk shall immediately send a copy of the claim to the personal representative or his attorney. HISTORY: RSMo ,194, A.L p , A.L S.B. 141, A.L S.B. 637, A.L S.B. 35, et al. PRIOR REVISIONS: ,195; ,194; ,203 (1964) If a claimant concedes that payments were made on the subject of the claim, he must show such credits in his claim. But if he does not so concede, the burden is on the estate to prove payment, not on claimant to prove nonpayment. Hubbard v. Happel's estate (A.), 382 S.w.2d 416. (1974) Held that claim form used met requirements of this section and that signature not being on proper line did not invalidate the claim. State ex rei. Nollmann v. Gunn, (A.), 513 S.w.2d Claims not due, proceedings Secured claims--surrender of security.. payment When a creditor holds any security for his claim. the security shall be described in the claim. If the claim is secured by a mortgage, pledge, or other lien which has been recorded or filed for record, it is sufficient to describe the lien by date, and refer to the volume, page and place of recording or filing and the names of parties thereto. The claim shall be allowed in the same amount as if it were unsecured and the judgment allowing it shall describe the security. The creditor may surrender his security and be paid out of the assets of the estate. Nothing in this law shall be construed to compel the creditor to surrender his security until he receives payment of his debt in full or he is paid the value of the security. Payment of the claim shall be upon the basis of the full amount allowed if the creditor surrenders his security; otherwise payment shall be upon the basis of one of the following: (1) If the creditor exhausts his security before receiving payment. then upon the basis of the full amount of the claim less the amount realized upon exhausting the security; (2) If the creditor has not exhausted or does not have the right to exhaust his security, then upon the basis of the full amount of the claim less the value of the security determined by converting the same into money according to the terms of the agreement pursuant to which the security was delivered to the creditor, or by the creditor and personal representative by agreement, arbitration, compromise, or litigation. HISTORY: L 1955 p , A.L S.B. 637 EFFECTIVE Effective (1961) Where parties to divorce suit entered into property settlement which provided for the payment of the attorneys for both parties, the claim for the attorney fees upon the death of one of the parties to the divorce action who signed the agreement could be established in the probate court Yonke v. Albert's Estate (A.), 351 S.w.2d 794. The court may allow any claim filed against an estate, which is payable at a future day, at the then present value thereof, or the court may order the executor or administrator to retain in his hands sufficient funds to satisfy the same upon maturity; or if the heirs, devisees, or legatees offer to give bond to a creditor for the payment of his claim according to the terms thereof, the court may order the bond to be given in satisfaction of such claim. HISTORY: L p