Estates and Trusts

Professor Cheslik

Selected Missouri Statutes

CHAPTER 461: NONPROBATE TRANSFERS 12

§ 461.001. Transfers on death, certain provisions deemed nontestamentary, exceptions ..... 12 § 461.003. Law, how cited ...... 12 § 461.005. Definitions ......... 13 § 461.009. Nonprobate transfers not subject to requirements of a will--effect with or without consideration ................... 13 § 461.011. Transferring entity acting as agent for owner subject to nontransfer law, agency does not end with death of owner, duties. 14 § 461.012. Nonprobate transfers subject to agreement of transferring entity, when ....... 14 § 461.014. Transferring entity, obligation resulting from acceptance and registration..... 14 § 461.021. Beneficiary designation under written instrument or law, effect .......................... 14 § 461.023. Assignments effective on death of owner--delivery, effect ................................ 14

§ 461.025. Deeds effective on death of owner--recording, effect15 § 461.026. Procedure to transfer tangible personal property to take effect on death of owner ........ 15 § 461.027. 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 ................. 15 § 461.026. Registration of property, including accounts and securities in beneficiary form, effect .......................... 16 § 461.031. Effect of beneficiary designation on ownership of property during lifetime and at death. . . . . . . . . . . . . . . . . . . . . . . . . .. 16 § 461.033. Revocation or change of beneficiaries designation ....... 16 § 461.035. Agents may not make, revoke or change beneficiary unless document establishes agent's right or court order authorizes--

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authorized withdrawals may extinguish beneficiary's right to transfer ......................... 17 § 461.037. Property designated for a beneficiary if lost, destroyed, damaged or involuntarily converted, during owner's lifetime, effect .. 17 § 461.039. Effect of collateral conveyances or liens on property subject to nonprobate transfer ... 17 § 461.042. Survival required .... 17 § 461.043. 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 .. 16 § 461.045. Lineal descendant substitutes ...................... 16 § 461.048. Disclaimer ........... 18 § 461.051. 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 .................. 19 § 461.054. Disqualification for fraud, duress and undue influence and causing owner's death-­proceeding to determine disqualification ................. 19 § 461.059. Omitted spouse or child, probate rules do not apply-­after-born child or after-adopted child, effect on nonprobate transfers ........................ 20 § 461.062. Nonprobate transfer rules ............................ 20 § 461.065. Transferring entity, protection ....................... 22 § 461.067. Rights of owners and beneficiaries--improper distribution, liability of distributee--purchasers from distributee protected ............ 23 § 461.071. Rights of creditors .. 23 § 461.073. Scope and application of law ........................... 23 § 461.076. Jurisdiction of probate division of circuit court .... '" .24 § 461.079. Beneficiary designation

valid under law of another state enforceable in Missouri--effect of transfer determined by local law selected in document or designation ............................... , 24

§ 461.081. Nonprobate transfer laws to be effective when--prior transfers to be valid... . . . . . . .. 24 § 461.300. 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 ... 25

CHAPTER 471 UNIFORM SIMULTANEOUS DEATH LAW ......................... 26

§ 471.010. No sufficient evidence of survivorship ................. 26 § 471.020. Survival of beneficiaries ................... 26 § 471.030. Joint tenants or tenants by entirety ............. 26 § 471.040. Insurance policies .. 26 § 471.050. Law not retroactive. 26 § 471.060. Law does not apply if decedent provides otherwise ..... 26 § 471.070. Uniformity of interpretation ...... '" ......... 26 § 471.080. Short title ......... 27

CHAPTER 472 PROBATE CODE--GENERAL PROVISIONS ........................ 27

§ 472.010. Definitions ......... 27 § 472.013. Fraud under probate code--remedy--procedure ......... 28 § 472.020. Jurisdiction of probate division of circuit court ....... 29 § 472.025. State may be party to proceedings--service ............ 29 § 472.030. Powers of court-­executions, when returnable--service of process .............. 29 § 472.040. Costs ............... 30 § 472.050. Court open, when--sessions--time for acts ......... 30 § 472.060. Disqualification of judge ........................... 30 § 472.070. Powers of clerk ..... 30 § 472.080. Documents filed with court, form--content ............ 30 § 472.090. Objections to petition, form ............................ 31

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§ 472.100. Notice--court may require--how delivered ........... 31 § 472.110. Proof of service ..... 32 § 472.120. Amendment of proof of service .......................... 32 § 472.130. Waiver of notice ..... 32 § 472.135. Waiver of legal requirements, when--limitation on waiver ........................... 32 § 472.140. Record kept--adversary probate proceeding defined ....... 33 § 472.141. Proceedings to be conducted in accordance with rules of procedure -- order after action commenced ........................ 33 § 472.150. Vacation and modification of judgments ........ 33 § 472.160. Appeal--when--grounds for .............................. 34 § 472.170. Appeals from orders as to mental condition--procedure-­operates as supersedeas, when-­appointment of guardian--review .. 35 § 472.180. Time for appeal ...... 35 § 472.190. Appeals stayed or consolidated, when ............... 35 § 472.210. Appeals, procedure ... 35 § 472.280. Records of probate division of circuit court--may be kept by means other than bound volumes--reading equipment, index to be provided ................... 36 § 472.290. Rules of evidence to apply--exceptions--specific rules36 § 472.300. Proceedings involving trusts--estates--minors--disabled or incapacitated persons-­supervised settlements, procedure37 § 472.320. Independent administration of decedents' estates--application of probate code ............................. 37 § 472.330. Approval of act or transaction in best interests of estate ........................... 37 § 472.335. Power of court to confirm and validate acts--acts included ......................... 37

CHAPTER 473 PROBATE CODE-­ADMINISTRATION OF DECEDENTS ESTATES38

§ 473.010. Venue ................ 38 § 473.013. Character of proceeding--jurisdiction of court 38

§ 473.017. Application for letters--content ................ 39 § 473.020. If no application filed, others may request administration or probate-­petition, form, contents--hearing, notice, orders .................. 39 § 473.023. Court or clerk to grant letters ......................... 40 § 473.030. Request for special notice of hearings .............. 40 § 473.033. Notice of letters -­duty of clerk -- publication --form ............................ 41 § 473.037. Successor need not publish notice, when ............ 42 § 473.040. Notice where there are no known heirs . . . . . . . . . . . . . . . . .. 42 § 473.043. will of decedent, where delivered--wills found in safe deposit boxes, how delivered-­refusal to deliver, how handled. 42 § 473.047. Certificate of probate or rejection .................... 42 § 473.050. wills, presentment for probate, time limited--presented, defined ........................ , 42 § 473.053. Testimony of subscribing witnesses, other evidence ........................ 43 § 473.057. Commission for testimony of nonattendant witness43 § 473.060. Testimony before officer, effect ................. 44 § 473.063. Testimony to be recorded--record as evidence .... 44 § 473.065. Probate of will, when-­procedure for contest........... 44 § 473.067. Proof of nuncupative wills ........................... 44 § 473.070. Heirs, time limits to establish interest in estate-­posthumous heirs in gestation, mother has right to file action--time limitations ................ 44 § 473.073. Proof required for probate and grant of administration ....... '" ...................... 44

§ 473.077. Proceedings reopened, when ............................ 45 § 473.060. Certificate of probate, contents--evidence .............. 45 § 473.061. Probate of portion of

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will ............................. 45 § 473.083. Will binding, when-­contest of will, when, procedure.46 § 473.084. Compromise of controversy as to probate, when binding ............. , ............ 47 § 473.087. Will not effective until probated ................... 47 § 473.090. Refusal of letters ... 48 § 473.091. Clerk's duties as to certain forms--not practice of law ................................. 49

§ 473.092. Court may order administration previously commenced pursuant to guardianship law, dispensed with, when ............. 49 § 473.095. Apportionment of property between surviving spouse and children .................. , .. 49 § 473.097. Small estate -­distribution of assets without letters, when -- affidavit --procedure - - fee ................. 49 § 473.100. Effect of acquittances by distributees of small estate .. 51 § 473.107. Small estate appraised, when ............................. 51 § 473.110. Persons entitled to letters .......................... 51 § 473.113. Letters granted to others, when ..................... 52 § 473.117. Persons and corporations disqualified as personal representative -­designation required -- service of process, how made ................ 52 § 473.120. Form of letters testamentary ..................... 53 § 473.123. Form of letters of administration ................... 53 § 473.127. Letters c.t.a. and d.b.n., form ..................... 53 § 473.130. Letters or copies, evidence ......................... 54 § 473.133. Administrator during minority or absence .............. 54 § 473.137. Administrator pending contest, appointed when--duties .. 54 § 473.139. Resignation by executor or administrator, procedure, effect .... , ....... " ................... 54

§ 473.140. Removal of personal representative ................... 54

§ 473.143. Revocation of letters on finding will ................ , 55 § 473.147. Administrator d.b.n., when appointed .................. 55 § 473.150. Remaining executor or administrator to continue ..... ,. 55 § 473.153. Compensation of personal representatives, accountants and attorneys ....... 55 § 473.155. Compensation of accountants and attorneys (first class counties and St. Louis City) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 57

§ 473.157. Bond of personal representative -- conditions of bond ............................ 57 § 473.160. Bond not required, when ................................ 58

§ 473.163. Agreements with surety as to deposit of assets ......... 58 § 473.167. Execution of bond ... 58 § 473.170. Obligees of bond--liability of surety ............. 58 § 473.173. Bond of joint executors or administrators ............... 58 § 473.177. Affidavit of personal sureties ........................ 58 § 473.180. Persons not acceptable as sureties ..................... 58 § 473.183. Approval of bond .... 59 § 473.187. Bond valid though rejected ........................ 59 § 473.190. Sufficiency of bond to be shown on settlements ......... 59 § 473.193. Inquiry into condition of sureties--order for new bond. 59 § 473.197. Court may require, increase or decrease bond, when. 59 § 473.200. Letters revoked on failure to give bond ............ 59 § 473.203. Effect of new bond .. 60 § 473.207. Execution of bond deemed appearance by surety-­procedure on breach of obligation of bond ......................... 60 § 473.210. Successor may sue on bond. . . . . . . . . . . . . . . . . . . . . . . . . . .. 60 § 473.213. Limitations on suits 60 § 473.217. Action on bond generally ..................... " 61 § 473.220. Inventory and appraisement .................... 61 § 473.223. Settlement .......... 61

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§ 473.227. Security ............. 62 § 473.230. Citation of partner .. 62 § 473.233. Inventory and appraisement--classification of property ......................... 62 § 473.237. Affidavit to inventory ................................. 63

§ 473.240. Additional inventory.63 § 473.243. Compensation of appraisers ....................... 63 § 473.247. Debt of executor not discharged ....................... 63 § 473.250. Debt of administrator, assets ........................... 63 § 473.253. Inventory as evidence 63 § 473.260. Devolution of estate at death ............................ 63 § 473.263. Possession of assets .64 § 473.267. Assets for payment of claims ........................... 64 § 473.270. Collection of debts, prosecution and defense of suits .64 § 473.273. Actions instituted by or against decedent, duties ...... 64 § 473.277. Compromise of debts due estate ........................... 64 § 473.280. Purchase at foreclosure of mortgage held by estate ....... 65 § 473.283. Title to real estate, how taken on such purchase--how administered ..................... 65 § 473.290. Payment of debt of decedent secured by property of another--procedure ............... 66 § 473.293. Disposition of valueless or encumbered property. 66 § 473.297. Expenditures for preservation of property ......... 66 § 473.300. Continuation of business of decedent ............. 66 § 473.303. Specific execution of contract of decedent--petition ... 67 § 473.307. Notice--hearing--intervention ..................... 67 § 473.310. Specific execution of contract of decedent, court order --warranties -- conveyance or lease under will ....................... 67 § 473.313. Action for specific performance--proceedings in probate division of circuit court ........ 67 § 473.317. Completion of contracts to purchase property--exercise of

options ......................... 68 § 473.320. Interest may be sold, when ............................ 68 § 473.323. Interest relinquished to vendor, when ................. 68 § 473.327. Procedure in case of sale of school lands ............ 68 § 473.330. Conveyances, how made--procedure ....................... 68 § 473.333. Investment of surplus funds ........................... 69 § 473.337. Bank deposits ....... 69 § 473.340. Discovery of assets, procedure for ................... 69 § 473.360. Limitations on filing of claims--when claims barred ... 70 § 473.363. Suits pending at decedent's death deemed duly filed, when--personal representative to list pending actions--period of nonclaim not affected ........... 71 § 473.367. Actions commenced after decedent's death deemed filed, when ................................ 71

§ 473.370. Establishment of claim by judgment--judgment deemed filed, when ............................ 71 § 473.380. Claims, form and verification--claim to be established by evidence ......... 72 § 473.383. Claims not due, proceedings ..................... 72 § 473.387. Secured claims-­surrender of security--payment .. 72 § 473.390. Contingent claims ... 73 § 473.393. Collection of contingent claims from distributees -- limitations -- contribution .. 73 § 473.397. Classification of claims and statutory allowances. 73 § 473.398. Recovery of public assistance funds from recipient's estate, when authorized --procedure -- exceptions ......... 74

473.399. Definitions -­ooligation to repay assistance, claim against estate, when -­defenses, setoff -- exceptions .. 74 § 473.403. Allowance of claims-­court's duties--allowance by personal representative ......... 75 § 473.407. Defenses against claims . . . • . . . . . . . . • . • • • . • . • . • . . . • . . • .. 75

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§ 473.410. Offsets or counterclaims--personal representative to list--how asserted--procedure--judgment .... 75 § 473.413. Hearing and disposition of claims--notice ......... , ...... 75 § 473.423. Claim of personal representative--how established--procedure--fee ............ , ...... 76 § 473.427. Compromise of claims against estate ................... 76 § 473.430. Payments of claims and statutory allowances in order of classification --proportional payment- -priority ................ 76 § 473.433. 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 ..................... 76 § 473.437. Extension or renewal of encumbrances of assets ........... 77 § 473.440. Enforcement of judgment, attachment or execution liens which attached prior to decedent's death ................. 77 § 473.443. Proceedings where real estate has been sold under junior judgment ......................... 77 § 473.444. Limitations on filing claims--when claims barred ....... 78 § 473.457. Sale of property under power in will .................... 78 § 473.460. Purposes for which property may be sold, mortgaged, leased or exchanged .............. 79 § 473.463. No known heirs, property to be sold .............. 79 § 473.467. Reservation of property under direction of will--specific devises reserved ................. 79 § 473.470. Heirs may give bond and prevent sale .............. , ...... 79 § 473.473. Terms of sale ........ 79 § 473.477. Executor or administrator not to purchase, exception ........................ 80 § 473.480. Validity of proceedings ................................. 80

§ 473.483. Sales of perishable property ......................... 80

§ 473.487. Sale, mortgage or lease of personal property ............ 80 § 473.490. Sale of real estate on court's motion, when ............ 80 § 473.493. Petition to sell, mortgage or lease real estate--notice--order ................... 81 § 473.497. Creditor or other person may file petition, when .. 81 § 473.500. Order for sale, mortgage or lease of property, content -- duration -- reappraisal, when . . . . . . . . . . . . . . . . . . . . . . . . . . .. 81 § 473.507. Notice of public sale of real estate .................. 82 § 473.510. Public sale of real estate, where made, adjournment. 82 § 473.513. Report of sale--objections--approval ............ 82 § 473.517. New sale ordered, when ................................ 82 ~ 473.520. Conveyance executed, contents--effect ................ 83 § 473.523. Execution of conveyance or lease where personal representative resigns, dies or has letter revoked .................. 83 § 473.527. Taxes not liens in hands of transferee............. 83 § 473.530. Brokers', abstracting, and auctioneers' fees ........... 63 § 473.533. Platting of real estate ................................ 83

§ 473.537. Exchange of property 84 § 473.540. Settlements required, when ............................ 84 § 473.543. Settlements, contents-­vouchers for disbursement-­evidence, checks and drafts ..... 65 § 473.550. Interest to be accounted for.. . . . . . . . . . . . . . . . .. 65 § 473.553. Settlement docket, contents. . . . . . . . . . . . . . . . . . . . . . .. 85 § 473.557. Notice of time for settlement ...................... 85 § 473.560. Failure to file settlement, citation ............ 85 § 473.563. Settlement after citation, penalty ............... 86 § 473.567. Failure to settle after citation, letters revoked ....... 86 § 473.570. Settlement, payment of claims--apportionment where assets

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insufficient ..................... 86 § 473.573. Creditor may have execution, when .................. 86 § 473.577. Scire facias against sureties, when ................... 86 § 473.580. Proceedings on scire facias ........................... 86 § 473.583. Petition for final settlement and distribution ...... 87 § 473.587. Notice of final settlement ....................... 87 § 473.590. Objections to settlement, when filed--form--hearing--approval ................ 67 § 473.593. Credit for uncollectible debts shown in inventory ........................ 87 § 473.597. Conclusiveness of order approving final settlement ....... 88 § 473.600. Accounting for assets received and disbursed after final settlement ....................... 88 § 473.603. Settlement on death, resignation, or removal of personal representative ................... 88 § 473.607. Proceedings to compel settlement--judgment, enforcement88 § 473.610. Distribution, when required ......................... 89 § 473.613. Partial distribution.89 § 473.617. Decree of final distribution ..................... 90 § 473.618. Notice to judgment creditors of distribution--contents of request ....................... 91 § 473.620. Order in which assets are appropriated--abatement ...... 91 § 473.623. Contribution between devisees ......................... 91 § 473.627. Advancements to be determined ....................... 92 § 473.630. Right of retainer .... 92 § 473.633. Interest on general legacies ......................... 92 § 473.637. Distributees to refund, when--judgment ................... 92 § 473.640. Partition of personal property in kind ................. 92 § 473.643. Property sold to effect partition, when .................. 93 § 473.647. Notice of application for partition ................. , .. 93 § 473.650. Distributee may credit

share against purchase price, when ... , ........................... , 93

§ 473.653. proceedings to compel distribution ................... , 93 § 473.657. Distribution ........ 93 § 473.660. Discharge of personal representative .................. 94 § 473.663. No administration within one year after death and no will probated, interested party may petition--contents of petition--notice ...... , ......... " ....... , 94 § 473.665. Definitions ......... 94 § 473.668. Administration of estate of nonresident decedent as original proceeding............. 95 § 473.671. Jurisdiction of property--situs of intangibles .. 95 § 473.675. Applicability of law to estate of nonresident decedent--exceptions ...................... 96 § 473.676. Filing of copy of appointment of domiciliary foreign personal representative, when ... 96 § 473.677. Domiciliary foreign personal representative, powers, duties and obligations. . . . . . . . .. 97 § 473.678. Power of domiciliary foreign personal representative, when executed -- termination of powers -- substitution of local personal representative, when ... 97 § 473.682. Priority of personal representative appointed by court of decedent's domicile--exceptions ................................ 97

§ 473.685. Foreign personal representative subject to jurisdiction of courts of state, when ............................ 97 § 473.687. Foreign personal representative also subject to court's jurisdiction to same extent as decedent prior to death ...... 97 § 473.689. Service of process on foreign personal representative, how made ....... , ................ 98 § 473.691. Debtor or custodian may payor deliver personal property to foreign representative, when .... 98 § 473.692. Adjudication against any personal representative of estate binding on local personal

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representative ................... 98 § 473.694. Effect of law on reciprocal corporate fiduciaries law .............................. 98 § 473.697. Letters of administration for persons absent for five or more years -­application -- notice -- hearing.98 §. 473.700. Who may testify ...... 99 § 473.703. Publication of finding--time for rebuttal ............... 99 § 473.707. Issuance of letters, when ............................. 99 § 473.710. Revocation of letters, when--effect--procedure .......... 99 § 473.713. Distributees to give bond before receiving estate ..... 99 § 473.717. Supposed decedent substituted for administrator, when--effect on actions, judgments ................................ 100

§ 473.720. Payment of costs .... 100 § 473.733. Certificate and oath --bond, how sued on ............... 101 § 473.737. Administrators to have separate offices -- St. Louis administrator in civil courts building -- certain public administrators to have secretaries -- clerical personnel to be provided, when .................. 101 § 473.739. Compensation for attendance at training session, certain public administrators, expenses shall be reimbursed, when (certain noncharter counties of the first classification) ........... 101 § 473.740. 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 ...................... 102 § 473.741. County governing body may authori~e additional compensation, when -- maximum allowed -- additional compensation to terminate, when {certain first class counties .................. 102 § 473.742. Salary schedule for public administrators, certain counties -- administrator to choose salary or fee collection -- certain

administrators may join LAGERS. 103 § 473.750. Powers and duties under administration law ............. 104 § 473.753. Notice of administration, when and how given -- penalty for failure ......... 104 § 473.757. Civil officers to inform public administrator as to property, when ................. 105 § 473.760. Shall prosecute necessary suits ................ 105 § 473.763. Court may order public administrator to account to successor, when ................ 105 § 473.770. Deputies, appointment, tenure, compensation, powers (first class counties) -- delegation of duties, certain counties ....... 106 § 473.771. Deputies, appointment in all counties but first class -­tenure -- compensation -- powers 107 § 473.773. Public administrator and sureties liable for acts of deputies. . . . . . . . . . . . . . . . . . . . . .. 107 § 473.775. Staff to be deemed county employees -- full-time staff may be provided for certain administrators ................. 108 § 473.780. Independent administration, when ........... 108 § 473.783. Notice of independent administration, contents ....... 108 § 473.787. Duties of personal representative in independent administration -- attorney required, when ................. 109 § 473.793. Inventory of property by independent personal representative ................. 109 § 473.797. Independent personal representative may employ appraisers, attorney, accountant or tax specialist ................. 109 § 473.800. Supplementary inventory, when required--copies to interested persons ............. 110 § 473.803. Independent personal representative's right to decedent's property -- exceptions -- duties ....................... 110 § 473.810. Powers and duties of independent personal representative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 111

§ 473.811. Dealing in good faith for value with independent representative protected--no duty to inquire--liability of independent personal representative ................................ 112

§ 473.820. Liability of personal representative .................. 112 § 473.823. Compensation of independent personal representative and attorney .................... 112 § 473.827. Review of compensation of independent personal representative and of employment and compensation of others, when--refunds, when ................... 112 § 473.830. Court may restrain personal representative, when -­petition -- hearing -- procedure113 § 473.833. Revocation of independent administration, when -­petition -- hearing -- orders of court ........................... 113 § 473.837. Settlement of estate, when--notice--distribution ...... 113 § 473.840. Completion of administration--discharge of independent personal representative, when--procedures-­objections, time limitation, procedure ....................... 114 § 473.843. Time for complete settlement or filing of statement of account -- extension ......... 115 § 473.844. Distribution in kind-­deeds, evidentiary effect--improper distribution, liability of distributee, exceptions ......... 115 § 473.845. Interest of purchaser for value from, or lender to, distributee of property protected ................................ 115

CHAPTER 474 PROBATE CODE--INTESTATE SUCESSION & WILLS ................ 116

§ 474.010. General rules of descent ......................... 116 § 474.015. Failure to survive decedent by 120 hours deemed predecease of decedent --consequences .................... 117 § 474.020. Lineals take per capita and per stirpes, when ........... 117 § 474.030. Partial intestacy ... 117

§ 474.040. Collaterals of half blood inherit, how ............. 117 § 474.050. Posthumous children to inherit ........................ 117 § 474.060. Determination of relationship of parent and child-­adopted person is child of adopting parent, exception--illegitimate child, relationship determined. 118 § 474.070. Legitimation by marriage ....................... 118 § 474.080. Issue of void or dissolved marriage, legitimate. 118 § 474.090. Advancements counted against share, when--evaluation 118 § 474.100. Alienage no bar to descent ........................ 118 § 474.110. Curtesy and dower abolished ...................... 119 § 474.120. Inheritance and statutory rights deemed waived, when ........................... 119 § 474.130. Estate conveyed determines on failure of contractual bar ................ 119 § 474.140. Inheritance and statutory rights barred on misconduct of spouse ........... 119 § 474.150. Gifts in fraud of marital rights--presumptions on conveyances .................... 120 § 474.155. Contract to make will or devise, revoke or not revoke will or devise, or to die intestate, how established ..... 120 § 474.160. Election by surviving spouse to take against will, effect ............................... 120

§ 474.163. Valuation of estate, how determined ................. 121 § 474.170. Notice of right to elect .......................... 121 § 474.180. Time for making of election. . . . . . . . . . . . . . . . . . . . . .. 122 § 474.190. Form of election, filing ......................... 122 § 474.200. Right of election personal to surviving spouse ... 122 § 474.220. Waiver of right to elect .......................... 122 § 474.230. Effect of failure to elect to take against will ..... 122 § 474.235. Share of omitted spouse

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· ............................... 123 § 474.240. Share of omitted children, how determined ........ 123 § 474.250. Exempt property of surviving spouse or minor children ................................ 123

§ 474.260. One year support allowance, property in lieu thereof--allowance exempt from all claims .......................... 124 § 474.270. Exempt property applied for, when ....................... 124 § 474.280. Proceeds of sale of exempt property paid over, when.124 § 474.290. Homestead allowance -­partition of real estate selected, procedure -- waiver ............. 125 § 474.293. Provision of family allowance by independent personal representative -- limitations --relief by court ................. 126 § 474.300. Effect of death of spouse or child or marriage of minor on family and homestead allowances ...................... 126 § 474.310. Who may make will ... 126 § 474.320. Will form, execution, attestation ..................... 127 § 474.330. Who may witness will--effect of interest in will ...... 127 § 474.333. Will may provide for disposal of personal property by separate list ................... 127 § 474.337. Written will self-proved, how ..................... 128 § 474.340. Nuncupative wills ... 128 § 474.350. Revocation of nuncupative will ................ 128 § 474.360. Written will valid if executed in compliance with law.128 § 474.370. Foreign wills, recorded when, evidence .................. 129 § 474.380. Probate of foreign wills ........................... 129 § 474.382. Wills and trusts, English translation required, costs · ............................... 129

§ 474.390. Contest of foreign will · ............................... 129

§ 474.400. Revocation of wills .129 § 474.410. Revocation of subsequent will also revokes first will--exception ................. 130

§ 474.420. Change in circumstances--divorce ......... 130 § 474.425. Property given by testator during life treated as satisfaction of devise, when--valuation ..................... , 130 § 474.430. Court to conform to directions of will ............. 131 § 474.435. Class gift terminology includes certain persons and relationships, how determined .. 131 § 474.440. Bond to convey does not revoke devise .................. 131 § 474.450. Encumbrance does not revoke devise--exoneration, when131 § 474.455. Devisee who does not survive testator by 120 hours treated as predeceasing testator--exceptions ..................... 132 § 474.460. Testator surviving devisee, effect ................ 132 § 474.463. Exchange of securities not to adeem specific legacy ... 132 § 474.465. Failure of devise to become part of residue ......... 132 § 474.470. Rule in Shelley'S case abolished, effect .............. 132 § 474.480. Devise deemed to convey fee simple, when ............... 133 § 474.500. Wills of land to be recorded, where ................ 133 § 474.510. Deposit of will in court in testator's lifetime ... 133 § 474.520. Construction of will 134 § 474.530. Wills heretofore probated, effect--evidence ..... 134

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CHAPTER 461: NON PROBATE TRANSFERS

§ 461.001. 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 473.087, RSMo, and section 474.320, 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 461.003 to 461.081 apply to transfers under this section.

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 362.471

Motor vehicles and trailers, certificates of ownerShip, nonprobate transfers on death, form, procedure, RSMo 301.679 to 301.684

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§ 461.003. Law, how cited

Sections 461.003 to 461.081 may be cited as the "Nonprobate Transfers Law of Missouri".

HISTORY: L. 1989 H.B. 145 § 17

§ 461.005. Definitions

In sections 461.003 to 461.081, 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 461.045;

(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 461.003 to 461.081 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 472.290, 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

13

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 400.1·201. 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 400.8·102, RSMo, including securities as defined in section 409.401, 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. 1989 H.B. 145 § 18, A.L. 1995 S.B. 116

NOTES: '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 473.087, RSMo, (dealing with the requirement to probate a will), and section 474.320, RSMo, (dealing with will form, execution and attestation).

HISTORY: l. 1989 H.B. 145 § 19. A.L. 1995 S.9. 116

§ 461.025. 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.

HISTORY: L 1989 H.B. 145 § 25, A.L 1994 S.B. 701, A.L. 1995 S.9. 116

§ 461.026. 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. 1995 S.B. 116

lS

§ 461.027. 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. 1995 S.B. 116

§ 461.011. 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 461.003 to 461.081.

HISTORY: L. 1995 S.B. 116

§ 461.012. 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 461.003 to 461.081 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. 1989 H.B. 145 § 20, A.L. 1995 S.B. 116

§ 461.014. Transferring entity. obligation resulting from acceptance and registration

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.

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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 461.003 to 461.081.

HISTORY: l. 1989 H.B. 145 § 21, A.L 1995 S.B. 116

§ 461.021. 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. 1989 H.B. 145 § 23. A.L 1995 S.B. 116

§ 461.023. 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. 1989 H.B. 145 § 24, A.l. 1995 S.B. 116

§ 461.028. 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. 1989 H.B. 145 § 26, A.L. 1995 S.B. 116

§ 461.031. 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.

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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. 1989 H.B. 145 § 27, A.l. 1995 S.B. 116

§ 461.033. 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. 1989 H.B. 145 § 28, A.l. 1995 S.B. 116

§ 461.035. 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.8. 116

§ 461.037. 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. 116

§ 461.039. 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

17

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 461.300 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 461.300 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. 145 § 30, A.L 1995 S.B. 116

§ 461.042. 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. 145 § 31, A.L. 1995 S.B. 116

§ 461.043. 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. 1995 S.8. 116

§ 461.045. 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

18

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. 1989 H.B. 145 § 32, A.L. 1995 S.B. 116

§ 461.048. 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. 1989 H.B. 145 § 33, A.l. 1995 S.8. 116

§ 461.051. 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. 145 § 34, A.L 1995 S.B. 116

§ 461.054. '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

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. 1989 H.B. 145 § 35, A.L. 1995 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.)

§ 461.059. 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. 1989 H.B. 145 § 36, A.L. 1995 S.B. 116

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§ 461.062. 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 461.012, 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;

(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

21

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. 145 § 37, A.L 1995 S.B. 116

§ 461.065. Transferring entity, protection

1. The owner in making provision for a nonprobate transfer under sections 461.003 to 461.081 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 461.062, 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;

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(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 461.003 to 461.081. . .. 7. 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 461.003 to 461.081, 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 461.003 to 461.081 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 461.003 to 461.081 are in addition to protections provided by chapters 400, 403, 404 and 456, RSMo.

HISTORY: L. 1989 H.B. 145 § 38, A.L. 1995 S.B. 116

§ 461.067. 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 461.003 to 461.081 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 461.062 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 461.045 to 461.059 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. 1989 H.B. 145 § 39, A.L. 1995 S.B. 116

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§ 461.071. Rights of creditors A deceased owner's creditors, surviving spouse and unmarried minor children shaff have the rights set forth in section 461.300 with respect to the value of property passing by nonprobate transfer. HISTORY: L. 1989 H.B. 145 § 40. A.L. 19955.8. 116

§ 461.073. Scope and application of law 1. Subject to the provisions of section 461.079, sections

461.003 to 451.081 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 461.003 to 461.081 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 461.003 to 461.045 and 461.059 to 461.065 do not apply to accounts or depOSits in financial institutions unless the provisions of sections 461.003 to 461.081 are incorporated into the certificate, account or deposit agreement in whole or in part by express reference. 4. Sections 461.003 to 461.081 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 404.560, RSMo. 5. Sections 461.003 to 461.045 and 461.059 to 461.065 do not apply to certificates of ownership or title issued by the director of revenue. 6. Sections 461.003 to 461.045. 461.051 and 461.059 to 461.081 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 461.003 to 461.081 are incorporated into the policy or beneficiary designation in whole or in part by express reference. 7. Sections 461.003 to 461.045 and 461.059 to 461.065 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 461.051 shall not apply to any employee benefit plan governed by 29 U.S.C. Section 1001 et seq.

HISTORY: L.1989 H.B. 145 § 41, A.L. 1995 S.B. 116, A.L. 2001 H.B.644 merged with S.B. 227)

§ 461.076. 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. 145 § 42. A,L 1995 S.B. 116

§ 461.079. Beneficiary designation valid under law of another state enforceable in Missouri--effect of transfer determined by local law selected in document or deSignation

1. 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. 1995 S.8. 116

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§ 461.081. Nonprobate transfer laws to be effective when--prior transfers to be valid

1. Sections 461.003 to 461.081 shall apply to beneficiary designations for nonprobate transfers made on and after August 28,1989. Sections 461.003 to 461.081 shall apply to all non probate transfers occurring on and after January 1. 1990. 2, Any provision for a nonprobate transfer of money, benefits or property at death as now permitted in sections 461.003 to 461.081, 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. 145 § 43

§ 461.300. 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 461.003 to 461.081 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

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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 461.005, 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. 1995 S.B. 116

NOTES APPLICABLE TO ENTIRE CHAPTER

CROSS REFERENCES: Bank or trust companies pay-on-death accounts, form, effect. payment, RSMo 362.471

Motor vehicles and trailers, certificates of ownership, non probate transfers on death, form, procedure, RSMo 301.679 to 301.684

CHAPTER 471 UNIFORM SIMULTANEOUS DEATH LAW

§ 471.010. 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. 1947 V. I p. 13 § 1

(1961) Evidence justified finding that wife survived husband. Schmidt v. Pierce (Mo.). 344 S,W,2d 120.

§ 471,020. 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. 1947 V. I p. 13 § 3, A.L. 1959 S.B. 120

§ 471.030. 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.

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HISTORY: L. 1947 V. I p. 13 § 3, A.L. 1959 S.B. 120

§ 471.040. 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. 1947 V.I p. 13 § 4, A.L. 1959 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 522.

§ 471.050. 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. 1947 V.I p. 13 § 5

§ 471.060, 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. 1947 V.I p. 13 § 6, A.L. 1959 S.B. 120

§ 471.070. 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. 1947 V. I p. 13 § 7

§ 471.080. Short title

This law may be cited as "The Uniform Simultaneous Death Law"

HISTORY: L. 1947 V. I p. 13 § 8

CHAPTER 472 PROBATE CODE-GENERAL PROVISIONS

§ 472.005. 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, 1981. 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, 1981. 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

NOTES: EFFECTIVE Effective 1·1-81

'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. 473. RSMo

Cattle. female. sale by estate. brucellosis vaccination law special provisions. RSMo 267.555

Deaf persons. auxiliary services and aids. RSMo 476.750 Disclaimers of property, Chap. 469. RSMo Durable power of attomey, RSMo 404.700 to 404.735 Guardian and ward, Chap. 475, RSMo Intestate succession and wills, Chap. 474, RSMo Nonprobate transfers. RSMo 461.003 to 461.081

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§ 472.010. 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 474.160, 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 474.250, 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

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.

(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.), 280 5.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

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 § 475.320, 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 362.

§ 472.013. 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

§ 472.020. 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 1939 § 2437. A.L 1955 p. 385 § 3. A.L 1978 H.B. 1634. A.L 1983 S.B 44 & 45

NOTES PRIOR REVISIONS: 1929 § 2406: 1919 § 2542: 1909 § 4056

(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 472.020 and 456.225 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 164.

29

§ 472.025. State may be party to proceedinas-­service

Proceedings may be conducted under section 473.083, 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. 1967 p. 639 § 1, A.L 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 472.030. 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. 385 § 4, A.L 1978 H.B. 1634, A.L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

(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)

§ 472.040. 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 1939 § 203, A.l. 1955 p. 385 § 5, A.l. 1978 H.B.1634

NOTES: PRIOR REVISIONS: 1929 § 204; 1919 § 203; 1909 § 212

EFFECTIVE Effective 1·2·79

CROSS REFERENCES Probate fees. RSMo 483.580

§ 472.050. 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. 1955 p. 385 § 6, A.L 1978 H.B. 1634

§ 472.060. 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

30

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 1939 § 2444, A.L 1955 p. 385 § 7, A.L. 1978 H.B. 1634, A.l. 1983 S.B. 44 & 45 NOTES: PRIOR REVISIONS: 1929 § 2053; 1919 § 2549; 1909 § 4063

(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 399.

§ 472.070. 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. 1955 p. 385 § 8, A.l. 1978 H.B. 1634

§ 472.080. 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. 1955 p. 385 § 9, A.L. 1980 S.B. 637

§ 472.090. 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. 1955 p. 385 § 10

§ 472.100. 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

31

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 473.587, 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

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. 1955 p. 385 § 11, A.L. 1957 p. 829, A.L. 1980 S.B. 637, A.L. 1983 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 802.

§ 472.110. 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 493.060, 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.

HISTORY L. 1955 p. 385 § 12, AL. 1957 p. 829, A.L. 1980 S.B. 637

§ 472.120. 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. 1955 p. 385 § 12A

32

§ 472.130. 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. 1955 p. 385 § 14, A.l. 1957 p. 829, A.L. 1983 S.B. 44 &45

§ 472.135. 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. 1980 S.B. 637

§ 472.140. 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 472.141 means any proceeding brought pursuant to any provision of chapters 472. 473, 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. 1955 p. 385 § 15, A.L. 1978 H.B 1634, AL 1986 H.B. 1297

§ 472.141. 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

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. 1978 H.B. 1634, A.L. 1986 H.B. 1297

§ 472.150. 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. 1955 p. 385 § 16

(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 137.

§ 472.160. 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 472.070 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.

HISTORY: RSMo 1939 § 283, A.L. 1955 p. 385 § 17, A.L. 1957 p. 829. A.L. 1978 H.B. 1634, A.L. 1980 S.B. 637

NOTES: PRIOR REVISIONS: 1929 § 284; 1919 § 282; 1909 § 289

EFFECTIVE Effective 1-1-81

(1966) The right to appeal and whether an appellant is a party aggrieved within the meaning of § § 472.160 and 512.020 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 533.

34

(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.).

§ 472.170. 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.

HISTORY: RSMo 1939 § 284, A.L. 1955 p. 385 § 18, A.L. 1965 p. 632, A.L 1978 H.B. 1634, A.L 1980 S.B. 637, A.L 1983 S.B. 44 & 45

NOTES: PRIOR REVISIONS: 1929 § 285

35

§ 472.180. Time for appeal

All appeals shall be taken within the time prescribed by the rules of civil procedure relating to appeals.

HISTORY: RSMo 1939 § 285, A.L 1955 p. 385 § 21, A.L. 1978 H.B.1634

NOTES: PRIOR REVISIONS: 1929 § 286; 1919 § 283; 1909 § 290

EFFECTIVE Effective 1·2·79

§ 472.190. 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. 1955 p. 385 § 19, A.L. 1978 H.B. 1634

§ 472.210. Appeals, procedure

Appeals shall be taken in accordance with the rules of civil procedure relating to appeals.

HISTORY: RSMo 1939 § 286, AL. 1955 p. 385 § 22, A.L. 1965 p. 633, A.L. 1978 H.B. 1634

NOTES: PRIOR REVISIONS: 1929 § 287; 1919 § 284; 1909 § 291

EFFECTIVE Effective 1·2·79

§ 472.280. 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

36

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. 1955 p. 385 § 29, A.L. 1969 S.B. 81, A.L. 1978 H.B. 1634, A.L. 1983 S.B. 44 & 45

§ 472,290. 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. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1·1-81

§ 472.300. 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 472.100 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.

37

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 & 45

§ 472.320. 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 473.780 to 473.843 and 474.293, RSMo.

HISTORY: L 1980 S.B. 634

NOTES: EFFECTIVE Effective 1-1-81

§ 472.330. 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. 88 § 2

§ 472.335. 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. 88 § 3

CHAPTER 473 PROBATE CODE­ADMINISTRATION OF DECEDENTS ESTATES

§ 473.010. 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 1939 § § 4.5.531. L. 1955 p. 385 § 30. AL. 1959 S.B. 141

NOTES: PRIOR REVISIONS: 1929 § § 4. 5. 530; 1919 § § 4, 5. 518; 1909 § § 12.13,548

(1961) When sections 473.010 and 473.668 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.

NOTES APPLICABLE TO ENTIRE CHAPTER

c ~OSS REFERENCES: Administrators, profit on publication of : .. ces or advertisements prohibited, RSMo 493.130, 493.140

Adversary probate proceeding defined for Chap. 473, RSMo 472.140

Attachment proceeding, administrator made party, where, RSMo 521.430

Bi-state development agency, bonds of, investment in authorized, RSM070.3n

Cattle, female, sale by estate, brucellosis vaccination law special provisions. RSMo 267.555

38

Declaratory judgment, executor or administrator may obtain as to rights, RSMo 527.040 (

Definition of terms and general provisions, Chap. 472. RSMo Disclaimers of property, Chap. 469, RSMo Durable power of attorney, RSMo 404.700 to 404.735 Foreign administrator, suits by, RSMo 507.020 Mortgages, satisfaction by executor or administrator, RSMo

443.160 to 443.180 Nonprobate transfers, RSMo 461.003 to 461.081 Probate code, definitions, RSMo 472.010 Public officer, executor or administrator of to deliver records,

RSMo 109.020 to 109.040 Records of probate division, RSMo 472.280 Savings accounts in insured savings and loan associations,

investment in authorized, RSMo 369.194 Tax assessment list, executor or administrator to give assessor,

RSMo 137.350

§ 473.013. 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 473.033, 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 473.033, 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. 1955 p. 385 § 31, A.L. 1957 p. 829, A.L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

(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.

§ 473.017. 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. 1955 p. 385 § 32, A.L. 1957 p. 829, A.L. 1980 S.B. 637, A.L. 1981 S.B. 117, A.l. 1983 S.B. 44 & 45

39

§ 473.020. 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 473.110 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 472.010, 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 1939 § 8, A.L. 1955 p. 385 § 34, A.L. 1957 p. 829, A.L. 1980 S.B. 637, A.l. 1996 S.B. 494

NOTES: PRIOR REVISIONS: 1929 § 8; 1919 § 8; 1909 § 10

EFFECTIVE Effective 5-23-96

(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.).

§ 473.023, 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 1939 § 1, A.L. 1955 p. 385 § 33, A.L. 1978 HS. 1634

NOTES PRIOR REVISIONS 1929 § 1; 1919 § I; 1909 § 9

§ 473.030. 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. 1955 p. 385 § 36

(1987) Order granting special notice of probate hearings to interested person pursuant to this section was nol subject to

40

interlocutory appeal. Cordes v. Caldwell. 731 S.w.2d 463 (MoApp 1987)

§ 473.033. 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 473.403. 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 six-month 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 473.444, RSMo, or any other applicable limitation periods. Nothing in section 473.033, RSMo, shall be construed to bar any action against a decedent's liability insurance carrier through a defendant ad litem pursuant to section 537.021, RSMo. Receipt of this notice by mail should not be construed by the recipient to

indicate that the recipient necessarily has a benefiCial interest in the

41

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 .................................... ,

19 ..... Date of first publication is

.............................................. , 19 ..... .

Clerk of the Probate Division of the Circuit Court ""'''''''''''''' County, Missouri

HISTORY: L. 1955 p. 385 § 37, A.L. 1969 S.B. 86, A.L. 1978 HB. 1634, A.L. 1980 S.B. 637, A.L. 1983 H.B. 369, A.L. 1989 H.B. 145, A.L. 1993 S.B. 88, A.l. 1996 S.B. 494

NOTES: EFFECTIVE Effective 5-23·96

(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 473.360 and 473.033, RSMo, are constitutional. Estate of Busch v. Ferrell· Duncan Clinic (Mo. banc) 700 SW2d 87.

§ 473.037. 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 1939 § 79, A.L. 1955 p. 385 § 38

NOTES: PRIOR REVISIONS: 1929 § 79: 1919 § 78: 1909 § 86

§ 473.040. 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 1939 § 80, A.L. 1955 p. 385 § 39

NOTES: PRIOR REVISIONS: 1929 § 80: 1919 § 79: 1909 § 87

§ 473.043. 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 1939 § 569, A.L. 1955 p. 385 § 40, A.L. 1971 S.B. 85. A.L. 1978 H.B. 1634

NOTES:

PRIOR REVISIONS: 1929 § 568: 1919 § 556: 1909 § 584

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§ 473.047. 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 1939 § 532, A.L. 1955 p. 385 § 41

NOTES: PRIOR REVISIONS: 1929 § 531: 1919 § 519; 1909 § 549

§ 473.050. 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 473.097, 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 473.033 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 473.083 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 473.033 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

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 537.021, 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 1939 § 532, A.L. 1955 p. 385 § 42, A.L. 1969 S.B. 85, AL 1973 H.B 216, A.L. 1978 H.B. 1634, A.L. 1996 S.B. 494

NOTES: PRIOR REVISIONS: 1929§ 531; 1919§ 519; 1909§ 549

EFFECTIVE Effective 5-23-96

(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.).

§ 473.053. Testimony of subscribing witnesses, other evidence

1. 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 474.320, 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

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. 385 § 43, A.L. 1978 H.B. 1634, A.L. 1980 S.B. 637, A.L. 1981 S.B. 117, A.L. 1983 S.B. 44 & 45

§ 473.057. 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 1939 § 533, A.L. 1955 p. 385 § 44, A.L. 1973 S.B. 132, A.L. 1978 H.B. 1634

NOTES: PRIOR REVISIONS: 1929 § 532; 1919 § 520; 1909 § 550

§ 473.060. 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 1939 § 534, A.L 1955 p. 385 § 45, A.L 1961 p. 653

NOTES: PRIOR REVISIONS: 1929 § 533; 1919 § 521; 1909 § 551

§ 473.063. 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 1939 § § 537, 541, AL 1955 p. 385 § 46, AL 1983 S.S. 44 & 45

NOTES: PRIOR REVISIONS: 1929 § § 536,540; 1919 § § 524,528; 1909 § § 554, 558

§ 473.065. Probate of will, whenuprocedure for contest

1. A will which appears to have the required signatures and a certificate as provided in section 474.337, RSMo, showing that the requirements of execution under section 474.320, 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 473.083.

HISTORY: L 1980 S.B. 637

NOTES: EFFECTIVE Effective 1·1-81

44

§ 473.067. Proof of nuncupative wills

Proof of nuncupative wills is subject to the requirements of section 474.340, RSMo.

HISTORY: L 1955 p. 385 § 47

§ 473.070. 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 473.590 or for a statement of account pursuant to subsection 4 of section 473.840. 2. 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. 385 § 48. A.L 1971 S.S. 85. AL 1985 S.S. 35. et al.. A.L 1989 H.B. 145. A.L 1996 S.B. 494

NOTES: EFFECTIVE Effective 5·23·96

(1996) Illegitimate child may prove paternity during probate pursuant to this section even if section 210.828 statute of limitations has run. In the Matter of Carl Nocita. 914 SW.2d 358 (Mobane 1996).

§ 473.073. 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. 385 § 49, A.L 1961 p. 653

§ 473.0n. Proceedings reopened, when

If the court determines the facts as provided in section 473.073, 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 473.083;

(2) It may be vacated or modified for good cause as provided in section 472.150, RSMo;

(3) The finding that the alleged decedent is dead is not final or conclusive.

HISTORY: L 1955 p. 385 § 50, 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 145.

§ 473.080. Certificate of probate, contents-­evidence

The certificate of probate or rejection granted under section 473.047 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. 385 § 51

45

§ 473.081. 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 473.073 and 473.083.

HISTORY: l. 1980 5.B. 637

§ 473.083. 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 472.300, 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

46

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 473.084 and 473.085, 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 474.084 ~nd 474.085 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 473.017 and 473.033 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.).

§ 473.084. 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.8. 637

NOTES EFFECTIVE Effective 1-1-81

47

§ 473.085. 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.8. 637, A.L 1982 S.B. 700 Revision

§ 473.087. 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. 1955 p. 385 § 53

(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 84.

§ 473.090. Refusal of letters

1. Notwithstanding the limitation periods provided in section 473.050, 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 474.260, 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 473.444 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

48

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 493. 1 30, 493. 140

Adversary probate proceeding defined for Chap. 473, RSMo 472. 140

Attachment proceeding, administrator made party, where, RSMo 521.430

Bi-state development agency, bonds of,lnvestment in authorized RSMo 70.377 '

Cattle, female, sale by estate, brucellosis vaccination law special provisions, RSMo 267.555

Declaratory judgment, executor or administrator may obtain as io rights, RSMo 527.040

Definition of terms and general provisions, Chap. 472, RSMo Disclaimers of property, Chap. 469, RSMo Durable power of attorney, RSMo 404.700 to 404.735 Foreign administrator, suits by, RSMo 507.020 Mortgages, satisfaction by executor or administrator, RSMo

443.160 to 443.180 Nonprobate transfers, RSMo 461.003 to 461.081 Probate code, definitions, RSMo 472.010 Public officer, executor or administrator of to deliver records

RSMo 109.020 to 109.040 ' Records of probate division, RSMo 472.280 Savings accounts in insured savings and loan associations

investment in authorized, RSMo 369.194 ' Tax assessment list, executor or administrator to give assessor

RSMo 137.350 '

§ 473.091. 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 473.090, and the performance of the duties required by this section shall not constitute the practice of law as defined in section 484.010, RSMo.

HISTORY: L. 1980 S.B. 637, A.L. 1981 S.B. 117

NOTES: EFFECTIVE Effective 6-10-81

§ 473.092. 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 473.090 or section 473.097, 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 473.090 or section 473.097 and proceed pursuant to either section as authorized by statute. The court may proceed wilh or without notice 10 any interested party.

HISTORY: L. 1996 S.B. 494

NOTES: EFFECTIVE Effective 5-23-96

§ 473.095. Apportionment of property between surviving spouse and children

In cases arising under sections 473.090 and 473.093, 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. 1957 p. 829

49

§473.097. 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 473.090 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 483.580, 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 473.050, 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 473.050, 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 473.050;

(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;

(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 473.097, 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 473.444 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

50

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 ................................. , 19 ................................................... . 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 473.620. 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. 1955 p. 385 § 54, A.L. 1957 p. 829, A.L. 1967 p. 640, A.L. 1971 S.8. 19, A.L. 1973 S.B. 112, A.L. 1978 H.B. 1634, A.L. 1980 S.B. 637, A.L. 1981 S.B. 117, A.L. 1985 S.B. 35, et ai, AL. 1986 S.B. 787, A.L.1993 S.B. 88, A.L.1994 S.B. 701, A.L.1996 S.B.494

NOTES: EFFECTIVE Effective 5-23-96

§ 473.100. 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 473.097 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 473.097, 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 473.090 or 473.093 or to any other person having a superior right.

HISTORY: L 1955 p. 385 § 55

§ 473.107. 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 473.097 or before an order refusing letters is made under section 473.090. 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. 385 § 58, A.L 1971 S.8. 163, A.l. 1978 H.B. 1634

§ 473.110. 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

51

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 473.117, 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 493.130, 493.140

Adversary probate proceeding defined for Chap. 473, RSMo 472.140

Attachment proceeding, administrator made party, where, RSMo 521.430

Bi-state development agency, bonds of, investment in authorized, RSMo 70.377

Cattle, female, sale by estate, brucellosis vaccination law special provisions, RSMo 267.555

Declaratory jUdgment, executor or administrator may obtain as to rights, RSMo 527.040

Definition of terms and general provisions, Chap. 472, RSMo Disclaimers of property, Chap. 469, RSMo Durable power of attorney, RSMo 404.700 to 404.735 Foreign administrator, suits by, RSMo 507.020 Mortgages, satisfaction by executor or administrator, RSMo

443.160 to 443.180 Nonprobate transfers, RSMo 461.003 to 461.081 Probate code, definitions, RSMo 472.010 Public officer, executor or administrator of to deliver records,

RSMo 109.020 to 109.040 Records of probate division, RSMo 472.280 Savings accounts in insured savings and loan associations,

investment in authorized, RSMo 369.194 Tax assessment list, executor or administrator to give assessor,

RSMo 137.350

§ 473.113. 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 1939 § 9, A.L. 1955 p. 385 § 61, A.L. 1980 S.B. 637

NOTES: PRIOR REVISIONS: 1929 § 9; 1919 § 9; 1909 § 17

EFFECTIVE Effective 1·1-81

§ 473.117. 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 362.600,

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

52

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 1939 § § 6,10, A.L. 1955 p. 385 § 62, A.L. 1978 H.B. 1634, A.L. 1980 S.B. 637, A.L. 1981 S.B. 117, A.L. 1985 S.8. 35, et aI., A.L. 1986 S.B. 787, A.L. 1987 H.B. 637

NOTES: PRIOR REVISIONS: 1929 § § 6, 10; 1919 § § 6,10; 1909 § § 14, 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 561.016. In Re Estate of Foxworth, 732 S,W,2d 931 (Mo.App. 1987).

§ 473.120. 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 1939 § 37, A.L 1955 p. 385 § 63, AL 1978 H.B. 1634

NOTES: PRIOR REVISIONS: 1929 § 37; 1919 § 36; 1909 § 44

EFFECTIVE Effective 1-2-79

53

§ 473.123. 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. 19 .............................. .. Clerk of the Probate Division

HISTORY RSMo 1939 § 38, A.L. 1955 p. 385 § 64, AL 1978 H.B. 1634

NOTES: PRIOR REVISIONS: 1929 § 38; 1919 § 37; 1909 § 45

EFFECTIVE Effective 1-2-79

§ 473,127. 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 1939 § 39, A.L. 1955 p. 385 § 65, AL. 1978 H.B.1634

NOTES: PRIOR REVISIONS: 1929 § 39; 1919 § 38; 1909 § 46

EFFECTIVE Effective 1-2-79

§ 473.130. 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 1939 § 36, A.L. 1955 p. 385 § 66

NOTES: PRIOR REVISIONS: 1929 § 36; 1919 § 35; 1909 § 43

§ 473.133, 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 1939 § 13, A.L. 1955 p. 385 § 67

NOTES: PRIOR REVISIONS: 1929 § 13; 1919 § 13; 1909 § 21

§ 473.137. 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.

HISTORY: RSMo 1939 § 14, A.L. 1955 p. 385 § 68, A.L. 1978 H.B.1634 NOTES: PRIOR REVISIONS: 1929 § 14

EFFECTIVE Effective 1·2·79

54

§ 473.139. 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 473.540, 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. 1957 p. 829

§ 473.140. 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 1939 § § 10,43, A.L. 1955 p. 385 § 69, A.L. 1980 S.B. 637, AL 1983 S.B. 44 & 45

NOTES PRIOR REVISIONS: 1929 § § 10,43; 1919 § § 10,42; 1909 § § 18,50

(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.

§ 473.143. 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 1939 § § 40, 41, A.L. 1955 p. 385 § 70

NOTES: PRIOR REVISIONS 1929 § § 40,41; 1919 § § 39,40; 1909 § § 47.48

§ 473.147. 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 1939 § 47, A.L. 1955 p. 385 § 71

NOTES: PRIOR REVISIONS: 1929 § 47; 1919 § 46; 1909 § 54

(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 312.

55

§ 473.150. 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 1939 § 46, A.L. 1955 p. 385 § 72

NOTES: PRIOR REVISIONS: 1929 § 46; 1919 § 45; 1909 § 53

§ 473.153. 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

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

56

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. 1955 p. 385 § 73, A.L. 1978 H.B. 1634, A.l 1980 S.B. 637, A.L. 1989 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 560.

§ 473.155. 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 473.153. 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 473.153 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. 634 § § 1,2,3, A.L. 1980 S.B. 637, A.L. 1989 H.B.145

57

§ 473.157. Bond of personal representative .. conditions of bond

1. Except as provided in section 473.160, 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 1939 § § 18, 19, A.L 1955 p. 385 § 74, A.L. 1980 S.B. 637

NOTES: PRIOR REVISIONS: 1929 § § 18,19; 1919 § § 17,19; 1909 § § 25,26

(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 493.130, 493.140

Adversary probate proceeding defined for Chap 473, RSMo 472.140

Attachment proceeding, administrator made party, where, RSMo 521.430

Bi-state development agency, bonds of, investment in authorized, RSMo 70.377

Cattle, female, sale by estate, brucellosis vaccination law special provisions, RSMo 267.555

Declaratory judgment, executor or administrator may obtain as to rights, RSMo 527.040

Definition of terms and general proviSions, Chap. 472, RSMo Disdaimers of property, Chap. 469, RSMo Durable power of attomey, RSMo 404.700 to 404.735 Foreign administrator, suits by, RSMo 507.020 Mortgages, satisfaction by executor or administrator, RSMo

443.160 to 443.180 Nonprobate transfers, RSMo 461.003 to 461.081 Probate code, definitions, RSMo 472.010 Public officer, executor or administrator of to deliver records,

RSMo 109.020 to 109.040 Records of probate diviSion, RSMo 472.280 Savings accounts in insured savings and loan associations,

investment in authorized, RSMo 369.194 Tax assessment list, executor or administrator to give assessor,

RSMo 137.350

§ 473.160. 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 362.590, 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. 1955 p. 385 § 75, A.L. 1971 S.B. 163, A.L. 1980 S.B. 637, A.L. 1985 S.B. 35, et aJ.

§ 473.163. 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. 1955 p. 385 § 76

§ 473.167. 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.

HISTORY RSMo 1939 § 22, A.L. 1955 p. 385 § 77

NOTES PRIOR REVISIONS: 1929 § 22; 1919 § 21; 1909 § 29

58

§ 473.170. 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. 1955 p. 385 § 78

§ 473.173. 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. 1955 p. 385 § 79

§ 473.177. 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. 1955 p. 385 § 80

§ 473.180. 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 1939 § 21, A.L. 1955 p. 385 § 81

NOTES: PRIOR REVISIONS: 1929 § 21; 1919 § 20; 1909 § 28

§ 473.183. 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 1939 § § 22.24,25, A.L. 1955 p. 385 § 82

NOTES: PRIOR REVISIONS: 1929 § § 22,24,25; 1919 § § 21,23,24; 1909 § § 29,31,32

§ 473.187. 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 1939 § 26, A.L. 1955 p. 385 § 83

NOTES: PRIOR REVISIONS 1929 § 26; 1919 § 25; 1909 § 33

§ 473.190. 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 1939 § 22, A.L. 1955 p. 385 § 84

NOTES: PRIOR REVISIONS: 1929 § 22; 1919 § 21; 1909 § 29

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§ 473.193. 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 1939 § § 27.28,29,32, A.L. 1955 p. 385 § 85

NOTES: PRIOR REVISIONS: 1929 § § 27,28,29,32; 1919 § § 26,27, 28, 31; 1909 § § 34,35,36.39

§ 473.197. 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 473.157, the court shall enter an order requiring an additional bond or reducing the penalty of the existing bond.

HISTORY: L. 1955 p. 385 § 86, A.L. 1980 S.8. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 473.200. 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 1939 § § 31,32, A.L. 1955 p. 385 § 87

NOTES: PRIOR REVISIONS: 1929§§ 31,32;1919§§ 30,31; 1909§§ 38,39

§ 473.203. 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 1939 § 30, A.L. 1955 p. 385 § 88

NOTES: PRIOR REVISIONS: 1929§ 30; 1919§ 29; 1909§ 37

§ 473.207. 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.

60

4. The provisions of subsections 1, 2, and 3 of this section shall apply to a depositary which has executed a certification pursuant to section 473.160. 5. 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. 385 § 89, A.L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 473.210. 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 1939 § 55, A.L. 1955 p. 385 § 90

NOTES: PRiOR REVISiONS: 1929 § 55; 1919 § 54; 1909 § 62

§ 473.213. 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. 385 § 91, A.L. 1996 S.B. 494

NOTES: EFFECTIVE Effective 5-23-96

~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 516.120(5) 'rather than section 473.213 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. '

§ 473.217. 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 1939 § 281, A.L. 1955 p. 385 § 92

NOTES: PRIOR REVISIONS: 1929 § 282; 1919 § 280; 1909 § 287

(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 473.

§ 473.220. 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.

61

HISTORY: L. 1955 p. 385 § 93, A.L. 1957 p. 829, A.L. 1978 H.B. 1634

NOTES: EFFECTIVE Effective 1-2-79

NOTES APPLICABLE TO ENTIRE CHAPTER

CROSS REFERENCES: Administrators, profit on publication of notices or advertisements prohibited, RSMo 493.130, 493.140

Adversary probate proceeding defined for Chap. 473, RSMo 472.140

Attachment proceeding, administrator made party, where, RSMo 521.430

Bi-state development agency, bonds of, investment in authorized, RSMo 70.377

Cattle, female, sale by estate, brucellosis vaccination law special provisions, RSMo 267.555

Declaratory jUdgment, executor or administrator may obtain as to rights, RSMo 527.040

Definition of terms and general provisions, Chap. 472, RSMo Disclaimers of property, Chap. 469, RSMo Durable power of attorney, RSMo 404.700 to 404.735 Foreign administrator, suits by, RSMo 507.020 Mortgages, satisfaction by executor or administrator, RSMo

443.160 to 443.180 Nonprobate transfers, RSMo 461.003 to 461.081 Probate code, definitions, RSMo 472.010 Public officer, executor or administrator of to deliver records,

RSMo 109.020 to 109040 Records of probate division, RSMo 472.280 Savings accounts in insured savings and loan associations,

investment in authorized, RSMo 369.194 Tax assessment list, executor or administrator to give assessor,

RSMo 137.350

§ 473.223. 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. 1955 p. 385 § 94, A.L. 1978 H.B. 1634

NOTES: EFFECTIVE Effective 1-2-79

§ 473.227. 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. 1955 p. 385 § 95, A.L. 1978 H.B. 1634 NOTES: EFFECTIVE Effective 1-2-79

§ 473.230. 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. 1955 p. 385 § 96, A.L. 1978 H.B. 1634 NOTES: EFFECTIVE Effective 1-2-79

§ 473.233. 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;

62

(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 473.220. 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. 385 § 97, A.L. 1957 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 58 869 NOTES: EFFECTIVE Effective 5·23·96 (S.B. 494) 8·28-96 (S.B 869) NOTES APPLICABLE TO ENTIRE CHAPTER CROSS REFERENCES: Administrators, profit on publication of notices or advertisements prohibited, RSMo 493.130, 493.140

Adversary probate proceeding defined for Chap. 473, RSMo 472.140 Attachment proceeding, administrator made party, where, RSMo 521.430 Bi-state development agency, bonds of, investment in authorized RSMo

70.3n ' Cattle, female, sale by estate, brucellosis vaccination law speCial

provisions, RSMo 267.555 Declaratory judgment, executor or administrator may obtain as to rights

RSMo 527.040 ' Definition of terms and general provisions, Chap. 472, RSMo Disclaimers of property, Chap. 469, RSMo Durable power of attomey, RSMo 404.700 to 404.735 Foreign administrator, suits by, RSMo 507.020 Mortgages, satisfaction by executor or administrator, RSMo 443.160 to

443.180 Nonprobate transfers, RSMo 461.003 to 461.081 Probate code, definitions, RSMo 472.010 Public offICer, executor or administrator of to deliver records, RSMo

109.020 to 109.040 Records of probate division, RSMo 472.280 Savi~gs aooounts in insured savings and loan associations, investment in

authonZed, RSMo 369.194 Tax assessment list, executor or administrator to give assessor RSMo

137.350 '

§ 473.237. 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 473.233.

HISTORY: RSMo 1939 § 59, A.L 1955 p. 385 § 98, A.L. 1957 p. 829, A.L 1959 S.B. 141

NOTES: PRIOR REVISIONS 1929 § 59; 1919 § 58; 1909 § 66

§ 473.240. 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 1939 § 60, A.L 1955 p. 385 § 99

NOTES: PRIOR REVISIONS 1929 § 60; 1919 § 59; 1909 § 67

§ 473.243. 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. 385 § 100

§ 473.247. 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 1939 § 101, A.L 1955 p. 385 § 101 NOTES: PRIOR REVISIONS: 1929 § 101; 1919 § 100; 1909 § 108

§ 473.250. Debt of administrator, assets

All debts due by an administrator to his testator or intestate are considered assets in his hands.

63

HISTORY: RSMo 1939 § 100, A.L 1955 p. 385 § 102

NOTES: PRIOR REVISIONS: 1929 § 100; 1919 § 99; 1909 § 107

§ 473.253. 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 1939 § 74, A.L. 1955 p. 385 § 103 NOTES: PRIOR REVISIONS: 1929 § 74; 1919 § 73; 1909 § 81

§ 473.260. 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. 385 § 105 NOTES APPLICABLE TO ENTIRE CHAPTER CROSS REFERENCES: Administrators, profit on publication of notices or advertisements prohibited, RSMo 493.130, 493.140

Adversary probate proceeding defined for Chap. 473, RSMo 472.140

Attachment proceeding, administrator made party, where, RSMo 521.430

Biostate development agency, bonds of, investment in authorized, RSMo 70.377

Cattie, female, sale by estate, brucellosis vaccination law special provisions, RSMo 267.555

Declaratory jUdgment, executor or administrator may obtain as to rights, RSMo 527.040

Definition of terms and general provisions, Chap. 472, RSMo Disclaimers of property, Chap. 469, RSMo Durable power of attorney, RSMo 404.700 to 404.735 Foreign administrator, suits by, RSMo 507.020 Mortgages, satisfaction by executor or administrator, RSMo

443.160 to 443.180 Nonprobate transfers, RSMo 461.003 to 461.081 Probate code, definitions, RSMo 472.010 Public officer, executor or administrator of to deliver records,

RSMo 109.020 to 109.040 Records of probate division, RSMo 472.280 Savings accounts in insured savings and loan associations,

investment in authorized, RSMo 369.194 Tax assessment list, executor or administrator to give assessor,

RSMo 137.350

§ 473.263. 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. 385 § 106

NOTES: CROSS REFERENCES: Exempt property and allowances to surviving spouse and children, RSMo 474.250 to 474.280 Uniform act for simplification of fiduciary security transfers, RSMo 403.250 to 403.350

(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 92.

§ 473,267. 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. 385 § 107

64

§ 473.270. 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 1939 § 94, A.L. 1955 p. 385 § 108

PRIOR REVISIONS: 1929 § 94; 1919 § 93; 1909 § 101

CROSS REFERENCES: Administrator of deceased life tenant to collect rents due deceased, remedy, RSMo 441.160,441.170 Execution ordered by administrator d.b.n., when, RSMo 513.080 (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 659.

§ 473.273. 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 1939 § 97, A.L 1955 p. 385 § 109

NOTES: PRIOR REVISIONS: 1929 § 97; 1919 § 96; 1909 § 104

§ 473.277. 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. 385 § 110

§ 473.280. 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 1939 § 95, A.L. 1955 p. 385 § 111

NOTES: PRIOR REVISIONS: 1929 § 95; 1919 § 94; 1909 § 102

§ 473.283. Title to real estate, how taken on such purchase··how administered

1. Where real estate is acquired under either section 473.277 or 473.280, 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 473.277 or 473.280 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 1939 § § 95,96, A.L. 1955 p. 385 § 112

NOTES: PRIOR REVISIONS: 1929 § § 95,96; 1919 § § 94,95; 1909 § § 102, 103

65

§ 473.287. 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 473.620 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. 1955 p. 385 § 113, A.L. 1957 p. 829

NOTES: PRIOR REVISIONS: 1929 § 139; 1919 § 138; 1909 § 147

CROSS REFERENCES: Foreclosure of mortgages stayed by death of mortgagor, RSMo 443.300

§ 473.290. 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. 1955 p. 385 § 114, A.L. 1963 p. 655

§ 473.293, 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. 385 § 115. A.L. 1980 S.B. 637

66

NOTES: EFFECTIVE Effective 1-1-81

§ 473.297. 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 1939 § § 102,103, A.L. 1955 p. 385 § 116

NOTES: PRIOR REVISIONS: 1929 § § 102,103; 1919 § § 101,102; 1909 § § 109,110

§ 473.300. 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. 1955 p. 385 § 117

§ 473.303. 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 1939 § § 168,169,176, A.L. 1955 p. 385 § 118, A.L. 1980 S .B. 637

NOTES: PRIOR REVISIONS: 1929 § § 169,170,177; 1919 § § 168,169, 176; 1909 § § 177,178,185

EFFECTIVE Effective 1-1-81

§ 473.307. 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 1939 § 170, A.L. 1955 p. 385 § 119, A.l. 1957 p. 829, A.l. 1978 H.B. 1634

NOTES: PRIOR REVISIONS: 1929 § 171; 1919 § 170; 1909 § 179

EFFECTIVE Effective 1-2-79

67

§ 473,310. 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 1939 § § 171,172,173, A.L. 1955 p. 385 § 120, A.L. 1980 S.B. 637, A.L. 1983 H.B. 369

NOTES: PRIOR REVISIONS: 1929 § § 172,173,174; 1919 § § 171,172, 173; 1909 § § 180,181,182

§ 473,313. 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 473.303 and 473.307.

HISTORY: l. 1955 p. 385 § 120, A.L. 1957 p. 829, A.L. 1978 H.B. 1634

NOTES: EFFECTIVE Effective 1-2-79

§ 473.317. 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 473.287 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.

§ 473.320. 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 473.317, 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 1939 § 134. A.L 1955 p. 385 § 122

NOTES: PRIOR REVISIONS: 1929 § 135; 1919 § 134; 1909 § 143

§ 473.323. Interest relinquished to vendor, when

If the real or personal property referred to in section 473.317 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 1939 § 135, A.l. 1955 p. 385 § 123

NOTES: PRIOR REVISIONS: 1929 § 136; 1919 § 135; 1909 § 144

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§ 473.327. Procedure in case of sale of school lands

If any real estate referred to in subsection 1 of section 473.317 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 1939 § 136, A.l. 1955 p. 385 § 124

NOTES: PRIOR REVISIONS: 1929 § 137; 1919 § 136; 1909 § 145

§ 473.330. Conveyances, how made··procedure

In all cases of relinquishment of the interest of a decedent in real estate under sections 473.323 and 473.327 and in all cases of the sale of the interest of a decedent in real estate under sections 473.287 and 473.320, 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 1939 § 137, A.L 1955 p. 385 § 125

NOTES: PRIOR REVISIONS: 1929 § 138; 1919 § 137; 1909 § 146

§ 473.333. 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 456.900 to 456.913, 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 456.900 to 456.913, RSMo.

HISTORY: RSMo 1939 § 104, A.L. 1955 p. 385 § 126, A.L. 1957 p. 829, A.L. 1980 S.B. 637, AL. 1982 S.B. 700 Revision, AL 1998 H.B. 1571 NOTES: PRIOR REVISIONS: 1929 § 104; 1919 § 103; 1909 § 111 CROSS REFERENCES: Multinational banks, securities and obligations of, investment in, when, RSMo 409.950

§ 473.337, 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. 1955 p. 385 § 127, A.L. 1957 p. 829

§ 473.340. 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.

69

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 1939 § 63, AL. 1955 p. 385 § 128, A.L. 1973 S.B. 210, A.L. 1978 H.B. 1634, A.L. 1982 S.B. 700 ReviSion. AL. 1993 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).

§ 473.360. limitations on filing of claims··when claims barred

1. Except as provided in section 473.370, 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 473.363 or 473.367 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. 1955 p. 385 § 139, A.L. 1957 p. 829, A.L. 1959 S.B. 305, A.L. 1969 p. 551, A.L. 1978 H.B. 1634, A.L. 1980 S,B. 637, A.L. 1989 H.B. 145, A.L. 1993 S.B. 88, A.L. 1996 S.B. 494

CROSS REFERENCES: Limitations extended by death, survival, RSMo 516.240516.250 Survival of causes of action, RSMo 431.130,537.010, 537.020, 537.030

(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,

70

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 473.360 and 473.033, 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 493.130, 493.140

Adversary probate proceeding defined for Chap. 473, RSMo 472.140 Attachment proceeding, administrator made party, where, RSMo 521.430 Bi-state development agency, bonds of, investment in authorized, RSMo

70.377 Cattle, female, sale by estate, brucellosis vaccination law special

provisions, RSMo 267.555 Declaratory judgment. executor or administrator may obtain as to rights,

RSMo 527.040 Definition of terms and general provisions, Chap. 472, RSMo Disclaimers of property, Chap. 469, RSMo Durable power of attomey, RSMo 404.700 to 404.735 Foreign administrator, suits by, RSMo 507.020 Mortgages, satisfaction by executor or administrator, RSMo 443.160 to

443.180 Nonprobate transfers, RSMo 461.003 to 461.081 Probate code, definitions. RSMo 472.010 Public officer, executor or administrator of to deliver records, RSMo

109.020 to 109.040 Records of probate division, RSMo 472.280 Savings accounts in insured savings and loan associations, investment in

authorized, RSMo 369.194 Tax assessment list, executor or administrator to give assessor, RSMo

137.350

§ 473.363. 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 473.360. 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 1939 § 183, A.L. 1955 p. 385 § 140, A.L. 1959 S.B. 305, A.L. 1967 p. 642, A.L. 1978 H.B. 1634, A.L. 1980 S.B. 637

NOTES: PRIOR REVISIONS: 1929 § 184; 1919 § 183; 1909 § 192

EFFECTIVE Effective 1-1-81

(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 58.

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§ 473.367. 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 473.360.

HISTORY: RSMo 1939§ 184,A.L.1955p.385§ 141,A.L.1959 S.B. 305, A.L. 1978 H.B. 1634, A.L. 1980 S.B. 637

NOTES: PRIOR REVISIONS: 1929§ 185; 1919§ 184; 1909§ 193

EFFECTIVE Effective 1·1-81

(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 543.

§ 473.370. 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 473.363 or 473.367, any judgment or decree is deemed filed within the meaning of section 473.360 as of the time a copy of the judgment or decree is filed in the probate division as required by this section.

HISTORY: RSMo 1939 § 188, A.L. 1955 p. 385 § 142, A.L. 1978 H.B. 1634, A.L. 1980 S.B. 637

NOTES: PRIOR REVISIONS: 1929 § 189; 1919 § 188; 1909 § 197

EFFECTIVE Effective 1-1-81

§ 473.380. 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 1939 § § 192,194, A.L. 1955 p. 385 § 145, A.L. 1959 S.B. 141, A.L. 1980 S.B. 637, A.L. 1985 S.B. 35, et al.

NOTES: PRIOR REVISIONS: 1929 § § 193,195; 1919 § § 192,194; 1909 § § 201,203

(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 710.

§ 473.383. Claims not due, proceedings

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. 1955 p. 385 § 146

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§ 473.387. 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. 385 § 147, A.L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1·1-81

(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.

§ 473.390. Contingent claims

Contingent claims which cannot be allowed as absolute debts shall be filed nevertheless in the court and proved. If allowed as a contingent claim, the order of allowance shall state the nature of the contingency. If the claim becomes absolute before distribution of the estate, it shall be paid in the same manner as absolute claims of the same class. In all other cases the court may provide for the payment of contingent claims in anyone of the following methods:

(1) The creditor and executor or administrator may determine, by agreement, arbitration or compromise, the value thereof, according to its probable present worth, and upon approval thereof by the court, it may be allowed and paid in the same manner as an absolute claim.

(2) The court may order the executor or administrator to make distribution of the estate but to retain in his hands sufficient funds to pay the claim if and when the same becomes absolute; but for this purpose the estate shall not be kept op3n longer than two years after distribution of the remainder of the estate has been made; and if the claim has not become absolute within that time, distribution shall be made to the distributees of the funds so retained, after paying any costs and expenses accruing during such period and the distributees are liable to the creditor to the extent of the estate received by them, if the contingent claim thereafter becomes absolute. When distribution is made to distributees the court may require such distributees to give bond for the ' satisfaction of their liability to the contingent creditor.

(3) Th~ court may order distribution of the estate as though the contingent claim did not exist, but the distributees are liable to the creditor to the extent of the estate received by them, if the contingent claim thereafter becomes absolute; and the court may require such distributees to give bond for the performance of their liability to the contingent creditor.

HISTORY: L. 1955 p. 385 § 148

(1958) Contrac~ between three owners of corporation requiring each to pay speCified amount to corporation, when, as and if it needed money and was short of cash held valid and allowable against estate of deceased party as a contingent claim. Becker­Behrens-Gist Lbr. Co. v. Adams (A.), 311 SW.2d 70.

§ 473.393. Collection of contingent claims from distributees •• limitations •• contribution

If a contingent claim has been filed and allowed against an estate and all the assets of the estate including the fund, if any, set apart for the payment thereof, have been distributed, and the claim thereafter becomes absolute, the creditor may recover thereon against those distributees whose distributive shares have been increased by reason of the fact that the

73

amount of the claim as finally determined was not paid prior to final distribution, if an action therefor is commenced within six months after the claim becomes absolute. The distributees are jointly and severally liable, but no distributee is liable for an amount exceeding the amount of the estate or fund distributed to him. If more than one distributee is liable to the creditor, he shall make all distributees who can be reached by process parties to the action. By its judgment the court shall determine the amount of the liability of each of the defendants as between themselves, but if any is insolvent or unable to pay his proportion, or beyond the reach of process, the others, to the extent of their respective liabilities, nevertheless, are liable to the creditor for the whole amount of his debt. If a person liable for the debt fails to pay his just proportion to the creditor, he is liable to indemnify all who, by reason of the failure on his part, have paid more than their just proportion of the debt, the indemnity to be recovered in the same action or in separate actions.

HISTORY: L. 1955 p. 385 § 149, A.L. 1978 H.B. 1634

NOTES: EFFECTIVE Effective 1-2-79

§ 473.397. Classification of claims and statutory allowances

All claims and statutory allowances against the estate of a decedent shall be divided into the following classes:

(1) Costs; (2) Expenses of administration; (3) Exempt property, family and homestead allowances; (4) Funeral expenses; (5) Debts and taxes due the United States of America' (6) Expenses of the last sickness, wages of servants, '

claims for medicine and medical attendance during the last sickness, and the reasonable cost of a tombstone'

(7) Debts and taxes due the state of Missouri, a~y county, or any political subdivision of the state of Missouri;

(8) Judgments rendered against the decedent in his lifetime and judgments rendered upon attachments levied upon property of decedent during his lifetime;

(9) All other claims not barred by section 473.360.

HISTORY: RSMo 1939 § 181, A.L. 1955 p. 385 § 150, A.L. 1965 p. 635, A.L. 1969 S.B. 84, A.L. 1980 S.B. 637 NOTES: PRIOR REVISIONS: 1929 § 182; 1919 § 181; 1909 § 190 EFFECTIVE Effective 1-1-81 CROSS REFERENCES: State claims paramount--personalliability on failure to pay, RSMo 430.330 to 430.350

(1~8.6) Probate .court has no jurisdiction to appoint an administrator ad litem once an appeal from its decision has been filed. Bank of Kansas City v. District Director of I.R.S., 721 S.w.2d 226 (Mo.App. 1986).

§ 473.398. Recovery of public assistance funds from recipient's estate, when authorized .. procedure ee exceptions

1. Upon the death of a person, who has been a recipient of aid, assistance, care, services, or who has had moneys expended on his behalf by the department of health and senior services, department of social services, or the department of mental health, or by a county commission, the total amount paid to the decedent or expended upon his behalf after January 1, 1978, shall be a debt due the state or county, as the case may be, from the estate of the decedent. The debt shall be collected as provided by the probate code of Missouri, chapters 472,473,474 and 475, RSMo. 2. Procedures for the allowance of such claims shall be in accordance with this chapter, and such claims shall be allowed as a claim of the seventh class under subdivision (7) of section 473.397. 3. Such claim shall not be filed or allowed if it is determined that:

(1) The cost of collection will exceed the amount of the claim;

(2) The collection of the claim will adversely affect the need of the surviving spouse or dependents of the decedent to reasonable care and support from the estate. 4. Claims consisting of moneys paid on the behalf of a recipient as defined in 42 U.S.C. 1396 shall be allowed, except as provided in subsection 3 of this section, upon the showing by the claimant of proof of moneys expended. Such proof may include but is not limited to the following items which are deemed to be competent and substantial evidence of payment:

(1) Computerized records maintained by any governmental entity as described in subsection 1 of this section of a request for payment for services rendered to the recipient; and

(2) The certified statement of the treasurer or his designee that the payment was made. 5. The provisions of this section shall not apply to any claims, adjustments or recoveries speCifically prohibited by federal statutes or regulations duly promulgated thereunder. Further, the federal government shall receive from the amount recovered any portion to which it is entitled.

HISTORY: L. 1977 H.B. 462 § § 1 to 4, A.L. 1981 S.B. 117, A.L. 1985 S.B. 5, et aI., A.L. 1995 S.B. 357

74

§ 473.399. Definitions .. obligation to repay assistance, claim against estate, when 00 defenses. setoff 00 exceptions

1. As used in this section, the following terms mean: (1) • Assistance", funds expended by a state agency to or

on behalf of a person in the form of aid, care, or services, except that for the purposes of this section, aid to families with dependent children shall not be considered assistance;

(2) "Obligor estate", the estate against which an obligation under this section arises;

(3) "Recipient", a person to whom or on whose behalf assistance is provided;

(4) "State agency", the department of social services, department of health and department of mental health of the state of Missouri. 2. For the purposes of this section, the providing of assistance shall create an obligation which may be recovered by filing a claim in the probate division of the circuit court against the decedent estate of the spouse of the deceased reCipient upon such spouse's death as provided by the probate code of Missouri, chapters 472, 473, 474 and 475, RSMo. The amount of the state debt shall be the full amount of assistance without interest provided to the recipient during the marriage of such reCipient and spouse; provided that the liability of the obligor estate shall not exceed the value of the combined resources of the recipient and the spouse of the recipient on the date of death of the recipient. 3. The state agency providing the assistance may initiate a claim on the debt against the obligor estate. 4. The obligor estate may assert as a defense to the state agency's claim that more than two years prior to the providing of assistance, the recipient voluntarily abandoned the spouse. 5. An obligor estate shall have the right of setoff against the state debt for any amounts recovered by the state agency from the estate of the deceased recipient pursuant to section 473.398. 6. Claims shall not be filed under this section when collection of the state debt would be contrary to federal statutes for assistance programs in which federal funds are received.

HISTORY: L. 1990 H.B. 1725 § 1

§ 473.403. Allowance of claims--court's duties-­allowance by personal representative

1. Except as provided in subsections 2 and 3 hereof, no claimant is entitled to payment unless his claim has been duly filed and allowed by the court. Upon the adjudication of any claim the court shall allow it in whole or in part, or disallow it. The order allowing the claim has the effect of a judgment and bears interest at the legal rate, unless the claim provides for a different rate in which case the judgment shall be rendered accordingly. 2. Except in case of the personal representative's own claim, any claim may be paid by the personal representative. without allowance thereof by the court, and credit may be had therefor in his settlement, provided the same is either paid or filed within the time prescribed by section 473.360; but, if written exceptions thereto are duly filed by any interested party within the time allowed for filing exceptions to the final settlement of the personal representative, hearing by the court shall be had thereon. On such hearing the burden is on the personal representative to prove that the estate was liable on the claim for the amount so paid. If the court adjudges that the estate was not liable for any part of the amount paid, the exceptions to such extent shall be sustained. 3. Claims for expenses of administration may be allowed upon application of the claimant or of the personal representative, or may be allowed in the discretion of the court at any settlement regardless of whether or not they have been paid by the personal representative.

HISTORY: L 1955 p. 385 § 152, AL 1969 p. 553, A.L 1980 S.S. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 473.407, Defenses against claims

Any executor or administrator may assert the same offsets and other defenses against any suit or other proceeding instituted against the estate of his testator or intestate which he might have made in his lifetime.

HISTORY: RSMo 1939 § 191, A.L 1955 p. 385 § 153

NOTES: PRIOR REVISIONS: 1929 § 192; 1919 § 191; 1909 § 200

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§ 473.410. Offsets or counterclaims--personal representative to list--how asserted--procedure-­judgment

The personal representative shall file a statement of all offsets or counterclaims against the creditor not less than twenty days prior to the date of hearing. The court may permit the statement to be filed in less than twenty days prior' to the date of the hearing for good cause. Upon hearing of the claim and offsets or counterclaims the court shall determine the amount due by and against the estate and render judgment in favor of or against the estate for the net amount. If a judgment is rendered against a claimant for any net amount, execution may issue in the same manner as on judgments in civil cases. An offset mayor may not diminish or defeat the recovery sought by the opposing party. Such offset may claim relief exceeding in amount or different in kind from that sought in the claim of the creditor.

HISTORY: L 1955 p. 385 § 154, A.L 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 473.413. Hearing and disposition of claims .. notice

Each court may provide by rule for the time and notice of hearing and disposition of claims filed therein or may set any individual claim or claims for hearing irrespective of rule. Except when ordered by the court for cause or upon agreement of the parties the time for hearing of any claim shall not be fixed at any time before the expiration of twenty days after notice thereof has been served on the personal representative.

HISTORY: L 1955 p. 385 § 155, AL. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 473.423. Claim of personal representative .. how established .. procedure--fee

A personal representative may establish a claim against the estate by proceeding against his corepresentative in the manner prescribed for other persons; but if there is no corepresentative, he shall file his claim and other papers, and, unless the persons whose interests would be adversely affected consent thereto in writing, the court shall appoint some suitable person as administrator ad litem to appear and manage the defense. The fee allowed to the administrator ad litem shall be charged against the claimant as costs unless the claimant can show that the claim arose prior to decedent's death or, that by advancing funds on behalf of the estate, the estate was benefited thereby, in which event the fee allowed the administrator ad litem shall be charged as costs against the estate and paid as an expense of administration.

HISTORY: RSMo 1939 § 202, A.L. 1955 p. 385 § 158, A.L. 1980 S.B.637

NOTES: PRIOR REVISIONS 1929 § 203; 1919 § 202; 1909 § 211 EFFECTIVE Effective 1-1-81

§ 473.427. Compromise of claims against estate

When a claim against the estate has been filed or suit thereon is pending, the creditor and personal representative, if it appears for the best interest of the estate, may compromise the claim, whether due or not due, absolute or contingent, liquidated or unliquidated.

HISTORY: L. 1955 p. 385 § 159, A.L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

(1960) Court property entered judgment based on compromise agreement between administrator and claimant. Evidence held not to show impropriety of the allowance or that the compromise was not in the best interest of the estate. Robb v. Casteel (A.), 340 SW.2d 180.

§ 473.430. Payments of claims and statutory allowances in order of classification "proportional payment-·priority

All claims and statutory allowances against an estate shall be paid by the personal representative, as far as he has assets, in the order specified in section 473.397; and no claim or statutory allowance of one class shall be paid until

76

all previous classes are satisfied or it appears that there are sufficient assets to satisfy all previous classes. If there are not sufficient assets to pay the whole of anyone class, claims shall be paid in proportion to their amounts. Exempt property, family allowance and homestead allowance have priority for payment. in the order listed, among themselves.

HISTORY: RSMo 1939 § 207, A.L. 1955 p. 385 § 160, A.L. 1980 S.B. 637 NOTES: PRIOR REVISIONS: 1929 § 208; 1919 § 207; 1909 § 216 EFFECTIVE Effective 1-1-81

§ 473.433. 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

1. Prior to the expiration of six months after the date of the first publication of letters, no personal representative shall be compelled to pay any claim presented to him or filed with the court; provided, however, that subsequent to the expiration of the time specified in section 473.360, no personal representative shall pay any claim except costs and expenses of administration, unless, within the time specified in sections 473.360, 473.363, and 473.367, said claim has either been filed with the court or acknowledged by the personal representative in writing to be a just claim. 2. Upon the expiration of six months after the date of first publication of letters, or when it appears that there are sufficient assets to pay all claims whether or not theretofore allowed, the personal representative shall proceed to pay all claims to which he has consented or which have been allowed by final judgment. 3. If it appears at any time that the estate is or may be insolvent, that there are insufficient funds on hand, or that there is other good and sufficient cause, the personal representative may report that fact to the court and apply for any order that he deems necessary in connection therewith. 4. Notwithstanding sections 473.360, 473.363, and 473.367, a personal representative may pay any claim at any time with the consent of all interested parties. 5. No claim filed with the court or acknowledged by the personal representative in writing to be a just claim, within the time speCified in sections 473.360, 473.363 and 473.367, shall be barred on the basis of the claim not having been served upon the personal representative within the time specified in sections 473.360,473.363, and 473.367.

HISTORY: L. 1955 p. 385 § 161, A.L. 1969 p. 553, A.L. 1980 S.B. 637, A.L. 1982 S.B. 700 Revision, A.L. 1996 S.B. 494 NOTES: EFFECTIVE Effective 5-23-96

(1995) Six-month bar also applies in conservatorships. Rebound, Inc. v. Pugh, 912 S.w.2d 660 (Mo.App.w.D. 1995).

§ 473.437. Extension or renewal of encumbrances of assets

When any assets of the estate are encumbered by mortgage. pledge or other lien, the personal representative may renew or extend any obligation secured by the encumbrance or conveyor transfer the assets to the creditor in satisfaction of his lien, in whole or in part, pursuant to agreement with the holder of the encumbrance, whether or not the holder of the encumbrance has filed a claim, if it appears to be for the best interest of the estate.

HISTORY: L. 1955 p. 385 § 162, A.L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 473.440. Enforcement of judgment, attachment or execution liens which attached prior to decedent's death

When any real or personal property of an estate is bound by the lien of any jUdgment, attachment or execution, which attached prior to the death of decedent, the personal representative, when the best interests of the estate require, may obtain the redemption thereof, except that, if the estate is insolvent, the property subject to the lien shall be sold in the manner provided by law for the sale of property for the payment of obligations of the estate. The proceeds of the sale shall be used first to satisfy and pay the judgment or execution without regard to the classification thereof, except that claims in classes one through seven of section 473.397 have precedence over such liens, and the residue, if any, shall be administered as other assets. If there is more than one jUdgment, attachment or execution lien, and the estate is insufficient to pay all of them, they shall be paid according to their priority, or, if they are of equal priority, the proceeds shall be applied to the several liens in proportion to their respective amounts.

HISTORY: L. 1955 p. 385 § 163, A.L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

CROSS REFERENCES: Attached property of decedent to be sold only under administration proceedings, RSMo 521.450, 521.460 Executions not to issue against executor or administrator, when, RSMo 513.075 Executors or administrators not to be summoned as garnishees, when, RSMo 525.030

77

§ 473.443. Proceedings where real estate has been sold under junior judgment

1. If real estate, being or having been bound by the liens of several judgments or attachments, has been sold under a junior judgment, the personal representative shall file a petition alleging the fact of the sale, the name of the plaintiff in the junior judgment, the name of the purchaser, the dates and amounts of the several judgments and attachments, and the names of the persons in whose favor the several judgments were rendered, or such attachments are prosecuted. 2. The court thereupon shall cause a copy of the petition to be served, in the manner provided by statute or civil rule, upon the plaintiff in the judgment under which the real estate was sold and the purchaser thereof, together with an order that unless good cause to the contrary is shown, at a date fixed by the court, an order will be made for the sale of the whole or so much of the real estate as is sufficient to pay the prior judgments or attachments. 3. The ~urchaser of the real estate has the privilege of paying the prior judgments at any time within three months after the date of the service of the petition, or, in case of attachments, within the time specified in section 473.360. 4. If the purchaser of the real estate under the junior judgment fails to pay the prior jUdgment, or judgment upon prior attachments, or both, within the time prescribed in subsection 3 above, the real estate shall be sold in the manner provided by law for the sale of real estate of decedents free from the encumbrance of the title derived from the sale under the junior jUdgment, and the proceeds of the sale shall be disposed of according to law.

HISTORY: RSMo 1939§ 151,A.L.1955p.385§ 164,A.L.1980 S.B.637

NOTES: PRIOR REVISIONS: 1929 § 152; 1919 § 151; 1909 § 160

EFFECTIVE Effective 1-1-81

§ 473.444. Limitations on filing claimsnwhen claims barred

1. Unless otherwise barred by law, 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, or are not paid by the personal representative, shall become unenforceable and shall be forever barred against the estate, the personal representative, the heirs, devisees and legatees of the decedent one year following the date of the decedent's death, whether or not administration of the decedent's estate is had or commenced within such one-year period and whether or not during such period a claimant has been given any notice, actual or constructive, of the decedent's death or of the need to file a claim in any court. No contingent claim based on any warranty made in connection with the conveyance of real estate is barred under this section. 2. 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 law and not otherwise.

HISTORY L 1989 H.B. 145

NOTES: EFFECTIVE Effective 7-13-89

§ 473.457. Sale of property under power in will

1. The sale and conveyance of property under a will shall be made by the acting executor or administrator with the will annexed, if no other person is apPointed by the will for that purpose, or if such person fails or refuses to act. 2. Whenever power to sell or otherwise deal with property under a will, by the terms thereof, is personal to the executor therein designated, the court may direct the exercise thereof by a successor executor or administrator or by some other person. The court has full power to supervise the exercise of such powers and to make such orders as are necessary to effectuate the will of testator. 3. When power to sell, mortgage, lease or exchange property of the estate has been given to any executor under the terms of any will, the executor may proceed under such power, or under the provisions of this law, as he may determine.

HISTORY: RSMo 1939 § 132, A.L. 1955 p. 385 § 168

7B

NOTES: PRIOR REVISIONS: 1929 § 133; 1919 § 132; 1909 § 141

NOTES APPLICABLE TO ENTIRE CHAPTER

CROSS REFERENCES: Administrators, profit on publication of notices or advertisements prohibited, RSMo 493.130, 493.140

Adversary probate proceeding defined for Chap. 473, RSMo 472.140

Attachment proceeding, administrator made party, where, RSMo 521.430

Bi-state development agency, bonds of, investment in authorized, RSM070.377

Cattle, female, sale by estate, brucellosis vaccination law special proviSions, RSMo 267.555

Declaratory judgment, executor or administrator may obtain as to rights, RSMo 527.040

Definition of terms and general provisions, Chap. 472, RSMo Disclaimers of property, Chap. 469, RSMo Durable power of attorney, RSMo 404.700 to 404.735 Foreign administrator, suits by, RSMo 507.020 Mortgages, satisfaction by executor or administrator, RSMo

443.160 to 443.180 Nonprobate transfers, R~Mo 461.003 to 461.081 Probate code, definitions, RSMo 472.010 Public officer, executor or administrator of to deliver records,

RSMo 109020 to 109.040 Records of probate division, RSMo 472.280 Savings accounts in insured savings and loan associations,

investment in authorized, RSMo 369.194 Tax assessment list, executor or administrator to give assessor,

RSMo 137.350

§ 473.460. Purposes for which property may be sold, mortgaged, leased or exchanged

1. Real or personal property belonging to an estate may be sold, mortgaged, leased or exchanged under court order for any of the following purposes:

(1) For the payment of claims allowable against the estate; (2) For the payment of any allowance made to the surviving

spouse and minor children of a decedent; (3) For the payment of any legacy given by the will of the

decedent; (4) For the payment of expenses of administration including

court costs; (5) For the payment of any gift, estate, inheritance or

transfer taxes assessed upon the transfer of the estate or due from the decedent or his estate;

(6) For any other purpose in the best interests of the estate; or if it would be burdensome to the heirs or devisees to distribute the personal property or the real estate in kind. 2. Real and personal property may be sold or mortgaged under order of the court when necessary for the purpose of making distribution of the estate or any part thereof. 3. Personal property of the estate shall be exhausted before real estate is ordered sold for the payment of the obligations of the estate unless the court otherwise orders.

HISTORY: L. 1955 p. 385 § 169, AL. 1957 p. 829, A.L. 1965 p. 636, A.L. 1980 S.B 637

NOTES EFFECTIVE Effective 1-1-81

CROSS REFERENCES: Conveyances to urban redevelopment corporation, when, RSMo 353.120 Homestead allowance, property not to be sold, when, RSMo 474.290

(1963) Subdivision (6) does not apply to situations of concern only to heirs and therefore neither the fact that it is desirable to sell the land because it cannot be satisfactorily partitioned in kind nor the fact that the real estate would bring a better price at a private sale by an administrator could make 'necessary' the sale of real estate under subdivision (6). Mcintosh v. Connecticut General Life Insurance Co. (Mo.), 336 SW.2d 409.

(1974) Held that failure to allege facts in support of statutory grounds for sale of property does not deprive probate court of jurisdiction. Coons v. Stokes (A.), 514 SW,2d 33.

§ 473.463. No known heirs. property to be sold

When there are no known heirs or legal representatives of heirs, the personal representative shall sell all the real and personal estate of the decedent as to which he died intestate six months after administration is granted, unless the court otherwise orders.

79

HISTORY: RSMo 1939 § 115, A.L. 1955 p. 385 § 170, A.L. 1980 S.B.637

NOTES: PRIOR REVISIONS: 1929 § 116; 1919 § 115; 1909 § 125

EFFECTIVE Effective 1-1-81

§ 473.467. Reservation of property under direction of willnspecific devises reserved

1. If any testator directs that his estate or any specific part or parts thereof be not sold, the same shall be reserved unless such sale is necessary for the payment of claims or allowances to surviving spouse or minor children. 2. Specific devises shall not be sold in any case unless necessary in accordance with section 473.620.

HISTORY: RSMo 1939§§ 112, 114,A.L.1955p.385§ 171

NOTES: PRIOR REVISIONS: 1929§§ 113,115; 1919§§ 112,114; 1909 § § 122, 124

§ 473.470. Heirs may give bond and prevent sale

An order prohibiting the sale of property for the payment of obligations of the estate may be granted if any of the persons interested in the estate executes and files in the court a bond in such sum and with such sureties as the court approves, conditioned to pay all obligations of the estate to the extent that the other property of the estate is insufficient therefor, within such time as the court directs. An action may be maintained on such bond by the executor or administrator.

HISTORY: L. 1955 p. 385 § 172

§ 473.473. Terms of sale

In all sales of real or personal property the court may authorize credit to be given by the executor or administrator for the payment of such portion of the purchase price and for such periods of time, upon such rates of interest, with such security, and upon such other conditions as the court finds to be in the interests of the estate.

HISTORY: L. 1955 p. 385 § 173, A.L. 1957 p. 829

§ 473.477. Executor or administrator not to purchase. exception

No executor or administrator shall purchase any property belonging to the estate which is sold either at public or private sale, unless written consent thereto is filed by the distributees.

HISTORY: RSMo 1939 § 161, A.L. 1955 p. 385 § 174

NOTES: PRIOR REVISIONS 1929 § 162; 1919 § 161; 1909 § 170

§ 473.480. Validity of proceedings

No proceedings for sale, mortgage, lease, exchange or conveyance by an executor or administrator of property belonging to the estate shall be subject to collateral attack on account of any irregularity in the proceedings if the court which ordered the same had jurisdiction of the estate.

HISTORY: L. 1955 p. 385 § 175

§ 473.483. Sales of perishable property

Every executor or administrator may sell at private or public sale all goods and chattels of the decedent that are liable to perish, be consumed or rendered worse by the keeping upon obtaining order of the court so to do. Approval of the court of a sale without prior order validates the sale.

HISTORY: RSMo 1939 § 111, AL 1955 p. 385 § 176

NOTES: PRIOR REVISIONS 1929§ 112; 1919§ 111; 1909§ 121

§ 473.487. Sale. mortgage or lease of personal property

An executor or administrator may file a petition to sell, mortgage or lease any personal property belonging to the estate. The petition shall set forth the reasons for the application and describe the property involved. The petition may be heard with or without notice as the court directs. Notice of the hearing, if required, shall state briefly the nature of the application and shall be given as provided in section 472.100, RSMo. The court may order the sale, mortgage or lease of the property described or any part thereof, on the most advantageous terms obtainable. No report or confirmation of the transaction is necessary unless required

80

by the court; but no privately negotiated sale, mortgage or lease made under this section is valid unless prior authorization or subsequent approval of the court is secured.

HISTORY: L. 1955 p. 385 § 177, A.L. 1957 p. 829

§ 473.490. Sale of real estate on court's motion. when

1. If, upon any settlement of the executor or administrator, it appears that the personal property of an estate is not sufficient for the payment of claims, legacies or allowances to the surviving spouse or unmarried minor children, the court may require a hearing to determine if real property of the estate should be sold, mortgaged or leased for that purpose. 2. Notice of the hearing, stating the time and nature thereof, shall be given by the clerk in the manner and to the persons as provided in subsection 2 of section 473.493. 3. Upon hearing the matter, and upon the adduction of satisfactory proof, the court may order the sale, mortgage or lease of such real property of the estate as the circumstances may require, and the same proceedings under this law shall thereafter be had in relation to the sale, mortgage or lease as if the same had been instituted on petition of the executor or administrator, or a creditor or other interested person.

HISTORY: RSMo 1939 § 165, A.L. 1955 p. 385 § 178, A.L. 1957 p.829

NOTES: PRIOR REVISIONS: 1929§ 166; 1919§ 165; 1909§ 174

§ 473.493. Petition to sell. mortgage or lease real estate--notice--order

1. An executor or administrator may file a petition to sell, mortgage or lease any real property belonging to the estate. The petition shall set forth the reason for the application and describe the property involved. It may apply for different authority as to separate parts of the property; or it may apply in the alternative for authority to sell, mortgage or lease. If the property is bound by the lien of a judgment or attachment, that fact shall be stated in the petition together with detailed information as to the date, amount and holder of the lien. Upon the filing of the petition, the court shall fix the time and place for the hearing thereof. 2. Notice of the hearing shall state briefly the nature of the application and shall be given to heirs and devisees whose names and addresses appear in the files or records of the case in the probate division of the circuit court and who are interested persons and to such other persons as the court directs. The notice shall be given by ordinary mail or by publication or both as ordered by the court. Publication, if any, shall be at least once each week for four consecutive weeks in accordance with section 472.100, RSMo. Where service by publication is ordered, the hearing shall be held at the time speCified in the notice which shall not be before the thirtieth day or later than the forty·second day after the date of the first insertion of the publication and, in other cases, the hearing shall be had at the time speCified in the notice. For good cause shown on the date specified, or on a date to which the hearing is duly continued, the court may continue the hearing to a later date without further notice. 3. At the hearing and upon satisfactory proofs, the court may order the sale, mortgage or lease of the property described or any part thereof. When a claim secured by a mortgage on real property, under the provisions of this law, is payable at the time of distribution of the estate or prior thereto, the court with the consent of the mortgagee may, nevertheless, order the sale of the real property subject to the mortgage, but such consent releases the estate should a deficiency later appear.

HISTORY: L. 1955 p. 385 § 179, A.L. 1957 p. 829

81

§ 473.497. Creditor or other person may file petition. when

If the executor or administrator does not make such application, a creditor or other person interested in the estate may file a like petition, giving twenty days' notice to the executor or administrator. On the filing of the petition the court may order the executor or administrator to furnish such information and records as the court deems necessary. On the petition the court shall proceed in the same manner as provided in section 473.493.

HISTORY: RSMo 1939 § 145, A.L. 1955 p. 385 § 180

NOTES: PRIOR REVISIONS: 1929 § 146; 1919 § 145; 1909 § 154

§ 473.500. Order for sale. mortgage or lease of property. content -- duration .. reappraisal. when

The order shall describe the property to be sold, mortgaged or leased and may deSignate the sequence in which the several parcels shall be sold, mortgaged or leased. An order for sale shall direct whether the property shall be sold at private sale or public auction. If real property is to be sold at private sale it shall direct that the same shall not be sold for less than three· fourths of the appraised value; or if real property is to be leased, it shall direct that the same shall not be leased for less than the appraised rental value. If real property is to be mortgaged, it shall fix the maximum amount of principal, the maximum rate of interest, the earliest and latest date of maturity, and shall direct the purpose for which the proceeds shall be used. An order for sale, mortgage or lease shall remain in force until terminated by the court. The court may, if it finds that there is probable cause to believe that the value of the property has changed, order a reappraisal thereof.

HISTORY: L. 1955 p. 385 § 181, A.L. 1959 S.B. 141, A.L. 1980 S.B.637

NOTES: EFFECTIVE Effective 1·1-81

§ 473.507. Notice of public sale of real estate

In all public sales of real estate made under this law, the executor or administrator shall cause a notice containing a particular description of the real estate to be sold and the street address or approximate direction and distance from any city or town, and popular name thereof, if any, stating the time, place and terms of sale, to be published once a week for four consecutive weeks prior to the sale in some newspaper. The name of the estate shall be printed in capital letters in the notice. The notice shall be published in accordance with section 472.100, RSMo, except that the newspaper in which publication is made must be published in the county in which the land is situated, or if there is none, in an adjoining county. Omission of or error in the street address or approximate direction or distance from any city or town or popular name, or any of them, shall not affect the validity of the notice.

HISTORY: RSMo 1939 § 159. AL. 1955 p. 385 § 183

NOTES: PRIOR REVISIONS: 1929 § 160; 1919 § 159: 1909 § 168

§ 473.510. Public sale of real estate, where made, adjournment

1. All public sales of real estate, made by order of the court, shall be made at the courthouse door of the county in which the real estate is situated, or at such other place in the county as may be fixed by the court order, at the time specified in the notice, and shall be conducted openly by auction. 2. The executor or administrator may adjourn the sale from time to time, but not for longer than three months in all. Every adjournment shall be announced publicly at the time and place fixed for the sale.

HISTORY: RSMo 1939 § 160, A.L. 1955 p. 385 § 184

NOTES: PRIOR REVISIONS: 1929§ 161; 1919§ 160; 1909§ 169

§ 473.513. Report of sale··objections··approval

1. Within ten days after making a sale, mortgage or lease of real estate, the executor or administrator shall make a full report of his proceedings, with the certificate of appraisement if a new appraisement is required by the court, and a copy of the advertisement, if a public sale, which report shall be verified by affidavit that he did not, directly or indirectly,

82

purchase the real estate or any part thereof, or any interest therein, and that he is not interested in the property sold except as stated in the report. If the written consent of distributees to the purchase by the executor or administrator is filed as provided by section 473.477 the affidavit is not required. The report of sale shall remain on file ten days before being acted upon by the court. 2. A person interested in the estate desiring to object to confirmation may file objections in writing, setting forth the reasons therefor. 3. The court shall examine the report and if satisfied that the sale, mortgage or lease has been at the price and terms most advantageous to the estate and in all respects made in conformity with law and ought to be confirmed, shall approve the same and order the executor or administrator to make a deed, mortgage, lease or other proper instruments to the person entitled thereto.

HISTORY: RSMo 1939 § 162, A.L. 1955 p. 385 § 185

NOTES: PRIOR REVISIONS: 1929 § 163; 1919 § 162; 1909 § 171

§ 473.517. New sale ordered, when

If the report and proceedings of the executor or administrator are not approved by the court, his proceedings shall be void. When from any cause no sale, mortgage or lease is made, the court with or without further notice to heirs or devisees, may order a new sale, mortgage or lease upon which the same proceedings shall be had as upon the original order or, unless the original order is terminated as provided in section 473.500, further proceedings may be had on the original order itself.

HISTORY: RSMo 1939 § 163, A.L. 1955 p. 385 § 186

NOTES: PRIOR REVISIONS: 1929 § 164; 1919 § 163; 1909 § 172

§ 473.520. Conveyance executed, contents··effect

1. Upon approval of a sale, mortgage or lease in accordance with section 473.513, the executor or administrator shall execute. acknowledge and deliver a conveyance to the grantee or mortgagee or a lease to the lessee according to the order of approval. 2. In case of a sale or mortgage. the conveyance shall refer in apt and appropriate terms to the order of ~ale or mortgage and the court by which it was made, the certificate of appraisement, the advertisement, the time and place of sale, the report of the proceedings and order of approval thereof by the court and the consideration and conveying or mortgaging to the grantee or mortgagee all the right. title and interest which the decedent had in the same. 3. In case of a lease, the lease shall contain like information and shall grant to the lessee posseSSion an.d use of al.1 the right, title and interest which decedent had In the demised premises. 4. Such deed, mortgage or lease shall convey to the grantee, or mortgagee, or lessee all the right, title an~ interes~ which the decedent had in such real estate at the time of hiS death, in accordance with its terms, and be evidence of the facts therein recited.

HISTORY RSMo 1939 § 164, AL. 1955 p. 385 § 187

NOTES: PRIOR REVISIONS 1929 § 165; 1919 § 164; 1909 § 173

§ 473.523. Execution of conveyance or lease where personal representative resigns. dies or has letter revoked

When a personal representative reSigns or dies, or his letters are revoked after the sale, exchange, mortgage or lease of real estate. and before executing a conveyance or lease therefor, the purchaser, mortgagee, or lessee, his heirs, assigns or grantees may petition the court, stating the facts. If he satisfies the court that the purchase money was paid, the court shall order the personal representative then acting, or, if after final settlement, the sheriff of the county to execute and acknowledge to the purchaser, mortgagee or lessee. his heirs, assigns or grantees an appropriate conveyance or lease. referring to the petition and order of court. with such other recitals as provided by section 473.520. Such conveyance or lease shall be executed accordingly and has the same effect to all intents and purposes as if made by the personal representative who made the sale, exchange, mortgage or lease of the real estate.

83

HISTORY: RSMo 1939 § 166, A.L. 1955 p. 385 § 188, A.L. 1980 S.B.637

NOTES: PRIOR REVISIONS: 1929 § 167; 1919 § 166; 1909 § 175

EFFECTIVE Effective 1·1-81

§ 473.527. Taxes not liens in hands of transferee

The lien of the state for estate taxes shall not extend to any interest acquired by a purchaser, mortgagee, or lessee through any transfer made by an executor or administrator under a power contained in a will or under order of the court.

HISTORY: L. 1955 p. 385 § 189

§ 473,530. Brokers', abstracting, and auctioneers' fees

In connection with the sale, mortgage, lease or exchange of property, the court may authorize the executor or administrator to pay, out of the proceeds realized therefrom or out of the estate, the customary and reasonable auctioneers', brokers' and real estate sales fees or commissions, and any necessary expenses for abstracting. title insurance. survey, revenue stamps and other necessary costs and expenses in connection therewith.

HISTORY: L. 1955 p. 385 § 190, AL. 1987 H.B. 356

§ 473.533. Platting of real estate

Whenever in the opinion of the court, it is to the interest of the estate to divide any lands belonging to the estate into village or town lots, the court, upon application of the executor or administrator, may make an order causing the same to be done; and thereupon the executor or administrator shall cause a plat of the lands so ordered to be divided to be made according to the provisions of the statute concerning the plats of towns and villages, and submit the same to the court for its approval. Upon approval of the plat by the court, a copy of the order approving the same, properly certified, shall be endorsed thereon; and the plat, so endorsed, shall be deposited and recorded as authorized by law in other cases.

HISTORY: RSMo 1939 § 177, A.L. 1955 p. 385 § 191

NOTES: PRIOR REVISIONS: 1929 § 178; 1919 § 177; 1909 § 186

§ 473.537. Exchange of property

Whenever it appears upon the petition of the executor or administrator or of any person interested in the estate to be to the best interests of the estate to exchange any real or personal property of the estate for other property, the court may authorize the exchange upon such terms and conditions as it may prescribe, which may include the payment or receipt of part cash by the executor or administrator. If personal property of the estate is to be exchanged, the proceedings required for the sale of such property shall apply so far as may be; if real property of the estate is to be exchanged, the procedure for the sale of such property shall apply so far as may be.

HISTORY: L. 1955 p. 385 § 192

§ 473.540. Settlements required, when

1. Every personal representative shall file in the court a statement of his accounts with proper vouchers, for seWement at the following times, unless the court otherwise orders:

(1) Annually on the anniversary date of the date of leiters until the administration is completed;

(2) At any other time when directed by the court either on its own motion or on application of any interested person. 2. Every personal representative shall file final settlement of his estate at the following times:

(1) On the first court day after the expiration of six months and ten days after the date of the first publication of notice of letters granted or as soon thereafter as administration is completed;

(2) Within ten days after revocation of his leiters unless the court otherwise orders;

(3) Upon his application to resign and before his resignation is accepted. 3. A personal representative may in case of continuance of the final seltlement pursuant to order of the court, file the final settlement at any time before the date to which it was continued. The court may, in its discretion, for good cause shown, extend the time for filing any intermediate or final seltlement, or permit the late filing thereof, without penalty.

HISTORY: RSMo 1939 § 213, A.L. 1955 p. 385 § 193, A.L. 1980 S.B.637

NOTES: PRIOR REVISIONS: 1929 § 214; 1919 § 213; 1909 § 222

EFFECTIVE Effective 1-1-81

CROSS REFERENCES: Partition sale proceeds, distribution before settlement prohibited, RSMo 528.140

84

NOTES APPLICABLE TO ENTIRE CHAPTER

CROSS REFERENCES: Administrators, profit on publication of notices or advertisements prohibited, RSMo 493.130, 493.140

Adversary probate proceeding defined for Chap. 473, RSMo 472.140

Attachment proceeding, administrator made party, where, RSMo 521.430

Bi-state development agency, bonds of, investment in authorized, RSMo 70.377

Cattle, female, sale by estate, brucellosis vactination law special provisions, RSMo 267.555

Declaratory judgment, executor or administrator may obtain as to rights, RSMo 527.040

Definition of terms and general provisions, Chap. 472, RSMo Disclaimers of property, Chap. 469, RSMo Durable power of attomey, RSMo 404.700 to 404.735 Foreign administrator, suits by, RSMo 507.020 Mortgages, satisfaction by executor or administrator, RSMo

443.160 to 443.180 Nonprobate transfers, RSMo 461.003 to 461.081 Probate code, definitions, RSMo 472.010 Public officer, executor or administrator of to deliver records,

RSMo 109.020 to 109.040 Records of probate division, RSMo 472.280 Savings accounts in insured savings and loan aSSOCiations,

investment in authorized, RSMo 369.194 Tax assessment list, executor or administrator to give assessor,

RSMo 137.350

§ 473.543. Settlements, contents--vouchers for disbursement--evidence, checks and drafts

1. Each settlement filed by a personal representative shall state the period for which it is made and, among other things, shall contain a just and true account of all moneys by him collected, the date when collected, from whom collected and on what account collected, whether on claims charged in the inventory or for property sold or otherwise; and it shall show the exact amount of principal and interest collected on each claim, and also the amount and date of each expenditure or distribution, and to whom and for what paid. Such settlement shall also show what interest has been obtained by the personal representative upon any funds in his hands, and when obtained, on what amounts, for what time and at what rate percent. Each expenditure of more than seventy-five dollars for which a personal representative claims credit in any settlement shall be supported by vouchers executed by the person to whom the disbursement was made. The court has discretion to require vouchers for expenditures of less than seventy-five dollars. Every settlement shall be signed by the personal representative. 2. When the law, local probate rule or practice requires the production of original canceled checks or drafts as part of any interim or final settlements of any kind by personal representatives, conservators, or other persons, such information may be retained and reproduced in a form permitted under section 362.413, RSMo; and, provided such information meets the requirements of section 362.413, RSMo, no court may require the production of the original checks and drafts.

HISTORY: RSMo 1939 § 213, A.L. 1955 p. 385 § 194, A.L. 1980 S.B. 637, A.L. 1996 S.B. 494, A.L. 1998 S.B. 792

NOTES: PRIOR REVISIONS: 1929 § 214; 1919 § 213; 1909 § 222

§ 473.550. Interest to be accounted for

All interest received by executors or administrators on debts due to the decedent are assets in their hands. They shall not use the money of the decedent for their own private purposes. If they do so, they shall be liable to the estate for interest and any loss of principal. The deposit pursuant to section 473.337 of funds of the estate in the banking department of a banking institution which is the sole or joint executor or administrator may, however, be made in all cases in which such deposit would have been proper if such banking institution were not an executor or administrator of the estate. The court, at each settlement, shall exercise an equitable control in making executors and administrators

as

account for interest, and for that purpose may take testimony or examine the executor or administrator on oath.

HISTORY: RSMo 1939 § § 222,223, A.L. 1955 p. 385 § 196, A.L. 1971 S.B. 163

NOTES: PRIOR REVISIONS: 1929 § § 223,224; 1919 § § 222,223; 1909 § § 231,232

§ 473.553. Settlement docket. contents

The clerk of the court shall keep a docket and enter therein a list of all personal representatives, the date of their letters and the time at which they are required to file their settlements.

HISTORY: RSMo 1939 § 214, A.L. 1955 P 385 § 197, A.L. 1957 p. 829, A.L. 1980 S.B. 637

NOTES: PRIOR REVISIONS: 1929 § 215; 1919 § 214; 1909 § 223

EFFECTIVE Effective 1-1-81

§ 473.557. Notice of time for settlement

The clerk shall notify each executor or administrator by ordinary mail of the day on which each of his settlements is required to be filed at least forty days before such date. Failure to receive the notice herein required shall not excuse any executor or administrator from making settlement at the time required by law.

HISTORY: L. 1955 p. 385 § 198

§ 473.560. Failure to file settlement. citation

If any executor or administrator fails to appear and file settlement on the day for which his settlement is docketed, the court shall continue the settlement to some future day and issue a citation to the executor or administrator requiring him to file settlement on the day to which the settlement is continued or show good cause, if any he has, why his settlement has not been filed and why his letters should not be revoked. The citation shall be served in the manner prescribed by the court in accordance with section 472.100, RSMo.

HISTORY: RSMo 1939 § 216, A.L. 1955 p. 385 § 199

NOTES: PRIOR REVISIONS: 1929 § 217; 1919 § 216; 1909 § 225

§ 473.563. Settlement after citation, penalty

If, after service of the citation, the executor or administrator appears and files his settlement he shall be fined for his failure to file settlement at the proper time in a sum not exceeding one hundred dollars, unless he satisfies the court that it was impracticable for him to file settlement. All fines shall be paid into the county treasury and the executor or administrator and his sureties are liable for the same upon their bonds.

HISTORY: RSMo 1939 § 218, A.L. 1955 p. 385 § 200

NOTES: PRIOR REVISIONS: 1929 § 219; 1919 § 218; 1909 § 227

§ 473.567. Failure to settle after citation, letters revoked

If the executor or administrator fails to appear as required by the citation or, appearing, fails or refuses to file settlement, or to t.how cause why settlement should be continued, the court, in addition to the fine provided for in section 473.563, may revoke his letters and issue attachments or other process to compel final settlement, directed to any county in the state. In all such cases the delinquent shall pay costs.

HISTORY: RSMo 1939 § 219, A.L. 1955 p. 385 § 201

NOTES: PRIOR REVISIONS: 1929 § 220; 1919 § 219; 1909 § 228

§ 473.570. Settlement, payment of claims .. apportionment where assets insufficient

After every settlement, when the best interests of the estate require it, on application of any interested person, the court shall ascertain the amount of money of the estate which has come to the hands of the personal representative from all sources and the amount of claims allowable against the estate, and may order the payment of the claims so allowable. If it appears that there is not sufficient assets to pay the whole of the debts and expenses of administration, the court may apportion, in accordance with the provisions of this law, among the creditors that percentage of their claims as appears will not adversely affect the rights of other creditors or the payment of administration expenses. The court may order that the personal representative pay the claims allowable against the estate according to the apportionment, reserving sufficient assets to pay expected claims and also reserving apportionments made on claims which remain undecided until decision is had thereon.

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HISTORY: RSMo 1939 § 224, A.L. 1955 p. 385 § 202, A.L. 1980 S.B.637

NOTES: PRIOR REVISIONS: 1929 § 225; 1919 § 224; 1909 § 233

EFFECTIVE Effective 1-1-81

§ 473.573. Creditor may have execution, when

If an executor or administrator fails to pay any claim ordered to be paid, in accordance with an order under section 473.570 when demanded, the clerk of the court, on application of the creditor, and being satisfied that the demand has been made, shall issue execution for the amount ordered to be paid, and costs, against the property, goods and chattels and real estate of the executor or administrator.

HISTORY: RSMo 1939 § 226, A.L. 1955 p. 385 § 203

NOTES: PRIOR REVISIONS: 1929 § 227; 1919 § 226; 1909 § 235

§ 473.577. Scire facias against sureties, when

If an execution is returned unsatisfied, the creditor may sue out of the court a scire facias against anyone or more of the sureties of the executor or administrator, referring to the bond, the order of payment, the execution and return, and requiring the surety to show cause why judgment should not be rendered against him for the amount ordered to be paid and still unsatisfied.

HISTORY: RSMo 1939 § 227, A.L. 1955 p. 385 § 204

NOTES: PRIOR REVISIONS: 1929 § 228; 1919 § 227; 1909 § 236

§ 473.580. Proceedings on scire facias

The scire facias may be directed to and served in any county in this state, and if, upon return thereof, good cause to the contrary is not shown, the court shall render judgment against the surety for the amount unpaid and costs and award execution therefor.

HISTORY: RSMo 1939 § 228, A.L. 1955 p. 385 § 205

NOTES: PRIOR REVISIONS: 1929 § 229; 1919 § 228; 1909 § 237

§ 473.583. Petition for final settlement and distribution

At the time of filing of a final settlement the executor or administrator shall petition the court to allow and approve his settlement and if the estate is in a proper condition to be closed, he shall also petition the court for an order authorizing him to distribute the estate, and shall specify in the petition the persons to whom distribution is to be made and the proportions or parts of the estate to which each is entitled.

HISTORY: L. 1955 p. 385 § 206

§ 473.587. Notice of final settlement

When an estate is in a condition to be closed before filing his final settlement and petition for distribution, the personal representative shall give, or cause to be given, at least twenty-nine days' notice by publication in the manner provided by section 472.100, RSMo, stating (1) that he will file final settlement and petition for distribution on a date certain or as continued by the court, and (2) that objections to the final setUement or petition for distribution shall be in writing and filed within twenty days from the date the final settlement is filed. The notice shall be published once a week for four consecutive weeks, the last publication to be at least seven days prior to the date specified therein for filing of the settlement. At least fifteen days before the date specified in the published notice the personal representative shall give, or cause to be given, the same notice by ordinary mail to each heir and devisee then interested in the estate whose name and address is disclosed by the court records, and who has not, in writing, waived such notice. Prior to the approval of the final settlement, proof of service as provided in section 472.110, RSMo, and any written waivers shall be filed.

HISTORY: L. 1955 p. 385 § 207, A.L. 1957 p. 829, A.L. 1980 S.B. 637, A.L. 1981 S.B. 117

NOTES: EFFECTIVE Effective 6-10-81

(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 S.w.2d 92.

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§ 473.590. Objections to settlement. when filed .. form .. hearingnapproval

Within twenty days after the filing of the final settlement and petition for distribution, or such longer time as may be ordered by the court, any interested person may file written objections thereto. The court may receive and file a final settlement before the date speCified in the published notice, or before the date to which the settlement was continued, but in case of such premature filing the twenty-day period for filing objections shall run from the date specified in the published notice or the date to which the settlement was continued, as the case may be. The objections must be in writing and clearly state the specifiC grounds of objection and the modification desired. If no objections are filed, the court may approve the final settlement and order distribution as prayed, without hearing if it deems such action proper. If objections are filed, or if the court does not deem it proper to approve the final settlement and order distribution as prayed without hearing, a hearing on the matter shall be had.

HISTORY: L. 1955 p. 385 § 208, A.L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

(1972) If an interested person, within ten days after filing of a final settiement requests additional time to file his written objections the court may grant such extension. In re Estate of Schmer (Mo.), 485 SW.2d 682.

§ 473.593. Credit for uncollectible debts shown in inventory

At his final settlement, the court shall give credit to the executor or administrator for any debt charged in the inventory as due to the estate, if the court is satisfied that the debt was not really due to the estate, or that it had been balanced or reduced by offsets in any court of competent jurisdiction, or that the debtor was insolvent, or that from any other cause it was impossible for the executor or administrator to have collected the claim by the exercise of due diligence.

HISTORY: RSMo 1939 § 231, A.L. 1955 p. 385 § 209

NOTES: PRIOR REVISIONS: 1929 § 232; 1919 § 231; 1909 § 240

§ 473.597. Conclusiveness of order approving final settlement

Upon the approval of the final settlement of an executor or administrator, the executor or administrator and his sureties, subject to the right of appeal and to the power of the court to vacate its final orders, shall be relieved from liability for the administration of his trust prior to his final settlement, including liability with respect to the investment of the assets of the estate. The court may disapprove the final settlement in whole or in part and surcharge the executor or administrator for any loss caused by any breach of duty.

HISTORY: L. 1955 p. 385 § 210

§ 473.600. Accounting for assets received and disbursed after final settlement

Receipts and disbursements of the executor or administrator, subsequent to the filing of his final settlement, shall be reported to the court before discharge. A settlement thereof, together with an estimate of the expenses of closing the estate, shall be made by the court and included in the order of distribution, or the court may treat the statement as a supplementary settlement and act on the same with or without notice but, if the court determines that notice is required or the executor or administrator or his sureties so request. notice shall be given in the manner prescribed by the court.

HISTORY: L. 1955 p. 385 § 212

§ 473.603. Settlement on death, resignation, or removal of personal representative

1. If a personal representative dies, reSigns, becomes legally disabled or his letters are revoked, he or his legal representatives or conservator shall file final settlement and shall account for, pay and deliver to his successor, or to the surviving or remaining personal representative all money and property of every kind, and all rights, credits, deeds, evidences of debt and such papers of every kind of the decedent, at such time and in such manner as the court orders. The final settlement may be made and approved without notice or after giving notice to the persons and in the manner directed by the court. 2. If a deceased personal representative leaves no estate subject to administration, and letters are issued to his personal representative solely for the purpose of making settlement under this section, the cost in the court proceeding in which letters are issued to the personal

88

representative of the deceased personal representative shall be taxed in the estate of which he was personal representative; and, in the administration proceeding in the estate of the deceased personal representative there need be no publication as required by section 473.033.

HISTORY: RSMo 1939 § 48, A.L. 1955 p. 385 § 213, A.L. 1957 p. 829, A.L. 1983 S.B. 44 & 45

NOTES: PRIOR REVISIONS: 1929 § 48; 1919 § 47; 1909 § 55

§ 473.607. Proceedings to compel settlement·· jUdgment, enforcement

1. On the application of any successor or surviving personal representative or of any interested person the court may order any personal representative or his legal representatives or any other person to file any final settlement required by this law or by the order of the court, and may attach and commit for cont&mpt any person who fails to file the settlement within the time fixed by the court until he complies with the order of the court. 2. The court, on the application of any successor or surviving personal representative or of any interested person, may also ascertain what quantity and kind of property of the decedent was in the hands of a personal representative who has failed to file his final settlement as required by this law or by the order of the court, or whose personal representative or conservator has failed to file settlement and may render judgment against the personal representative and his sureties therefor. The judgment may be enforced by execution or, in case delivery of specific property or papers is required, by attachment and commitment of his person until delivery is made. 3. An application filed under this section shall be set for hearing and at least ten days' notice of the time and place of the hearing thereon shall be given all parties affected thereby, by the clerk, and shall be served in the manner directed by the court in accordance with section 472.100, RSMo.

HISTORY: L. 1955 p. 385 § 214, A.L. 1983 S.B. 44 & 45

§ 473.610. Distribution, when required

Executors and administrators shall not be compelled to make distribution or pay legacies until six months after the date of the letters, unless the legacies specified would be perishable, or subject to injury if retained six months.

HISTORY: RSMo 1939 § 235, A.L. 1955 p. 385 § 215

NOTES: PRIOR REVISIONS: 1929 § 236; 1919 § 235; 1909 § 244

NOTES APPLICABLE TO ENTIRE CHAPTER

CROSS REFERENCES: Administrators, profit on publication of notices or advertisements prohibited, RSMo 493.130, 493.140

Adversary probate proceeding defined for Chap. 473, RSMo 472140

Attachment proceeding, administrator made party, where, RSMo 521430

Bi-state development agency, bonds of, investment in authorized, RSMo 70.377

Cattle, female, sale by estate, brucellosis vaccination law special provisions, RSMo 267.555

Declaratory judgment, executor or administrator may obtain as to rights, RSMo 527.040

Definition of terms and general provisions, Chap. 472, RSMo Disclaimers of property, Chap. 469, RSMo Durable power of attorney, RSMo 404.700 to 404.735 Foreign administrator, suits by, RSMo 507.020 Mortgages, satisfaction by executor or administrator, RSMo

443.160 to 443.180 Nonprobate transfers, RSMo 461.003 to 461.081 Probate code, definitions, RSMo 472.010 Public officer, executor or administrator of to deliver records,

RSMo 109.020 to 109.040 Records of probate division, RSMo 472.280 Savings accounts in insured savings and loan associations,

investment in authorized, RSMo 369.194 Tax assessment list, executor or administrator to give assessor,

RSMo 137.350

§ 473.613. Partial distribution

1. Subject to the provisions of section 473.618, upon application of the executor or administrator at any time, or on application of any distributee after the expiration of six months from the date of letters, the court may order the executor or administrator to deliver to any distributee any specific real or personal property, or the possession thereof, to which he is entitled or may decree partial distribution if the court believes that other distributees and claimants are not prejudiced thereby. Within a reasonable time after distribution of property under an order or decree made on application of the executor or administrator and before the decree of final

89

distribution, or at any time before the decree of final distribution if partial distribution was not made on application of the executor or administrator, the court may order the distributee to return all or a part of the property or the value thereof. But no order of return shall be made unless application therefor is filed within the time prescribed by section 473.637 and for the purposes therein provided or for other proper purpose. 2. The partial distribution under this section may be decreed with or without notice to interested parties, as ordered by the court. A decree of partial distribution made after notice to interested persons is as conclusive as a decree of final distribution with respect to the estate distributed except to the extent that other distributees and claimants are deprived of the fair share or amount which they would otherwise receive on final distribution. 3. Before partial distribution is made, the court, upon the request of the executor or administrator, shall require that security be given for the return of the property so distributed to the extent necessary to satisfy the interest of any distributee or claimant prejudiced by the distribution. If partial distribution is made without such request for security, the executor or administrator and his sureties are liable for any loss or damage sustained by any interested party as a result thereof.

HISTORY: L. 1955 p. 385 § 216, A.L. 1957 p. 829, A.L. 1985 S.B. 35, et al.

(1984) Refusal to approve a petition for partial distribution is not a final judgment and therefore not appealable. Matter of Estate of Pilla (Mo. App.), 674 SW2d 658.

§ 473.617. Decree of final distribution 1. After the expiration of the time limit for the filing of

claims, the executor or administrator, if the estate is in a condition to be closed, shall file his final settlement and at the same time petition the court to decree the final distribution of the estate. 2. In its decree of final distribution, the court shall designate the persons to whom distribution is to be made, and the proportions or parts of the estate, or the amounts, to which each is entitled under the will and the provisions of this law, including the provisions regarding advancements, election by the surviving spouse and minor children, lapse, renunciation and equitable retainer or setoff. Every tract of real property so distributed shall be specifically described therein. The decree shall find that the estate is in a condition to be closed; and if all claims have been paid, it shall so state; otherwise the decree shall state that all claims except those therein speCified are paid and shall describe the claims for the payment of which a special fund is set aside, and the amount of the fund; if any contingent claims which have been duly allowed are still unpaid and have not become absolute, such claims shall be described in the decree. which shall state whether the distributees take subject to them. If a fund is set aside for the payment of contingent claims, the decree shall provide for the distribution of such fund in the event that all or a part of it is not needed to satisfy the contingent claims. If a decree of partial distribution has been previously made, the decree of final distribution shall expressly confirm it. or, for good cause, shall modify the decree and state speCifically what modifications are made. 3. If a distributee dies before distribution to him of his share of the estate, his share may be distributed to the executor or administrator of his estate, if there is one; or if no administration on his estate is had and none is necessary according to the provisions of sections 473.090 to 473.107, the share of the distributee shall be distributed in accordance therewith. 4. The decree of final distribution is a conclusive determination of the persons who are the successors in interest to the estate of the decedent and of the extent and character of their interests therein, subject only to the right of appeal and the right to reopen the decree. It operates as the final adjudication of the transfer of the right, title and interest of the decedent to the distributees therein designated; but no transfer before or after the decedent's death by an heir or devisee shall affect the decree. nor shall the decree affect any rights so acquired by grantees from the heirs or devisees. 5. Whenever the decree of final distribution includes real property, a certified copy thereof shall be recorded by the executor or administrator in every county of this state in which any real property distributed by the

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decree is situated. The cost of recording the decree shall be charged to the estate. 6. Subject to the provisions of section 473.618, the personal representative shall make prompt distribution of the assets of the estate after entry of any order of distribution. HiSTORY: L. 1955 p. 385 § 217, A.L. 1985 S.B. 35, et ai.

§ 473.618. Notice to judgment creditors of distribution .. contents of request

1, Any judgment creditor of a distributee desiring notice of any partial or final distribution or both, may, at any time subsequent to the granting of letters testamentary or of administration, file with the clerk of the probate division of the circuit court having jurisdiction a duly acknowledged request for such notice and shall cause a copy of the request to be served upon the personal representative administering the estate or upon such representative's attorney of record, The request shall specify the name and address of the judgment creditor, the name of the debtor-distributee and the identity of the estate, A separate request shall be filed for each judgment creditor of a distributee desiring notice. After the serving and filing of any such request, any distributee mentioned in the request may be referred to as a "debtor­distributee" , 2. No partial or final distribution shall be made by a supervised or independent personal representative to a debtor-distributee after the serving and filing of any such request until at least twenty days after such representative has caused to be depOSited in the United States mail an envelope certified or registered, and with postage fully prepaid, enclosing a notice of the distribution and the date when such distribution will be made, addressed to each person whose name and address is set forth in a request served and filed as provided in subsection 1 of this section, Actual receipt by the addressee of the envelope shall not be necessary to establish compliance with the requirements of this section, The receipt issued by the United States Post Office for certified or registered mail to evidence that the envelope has been delivered by the personal representative to the United States Post Office shall constitute proof of compliance with the notice requirements of this section, Any distribution made by any personal representative to a debtor­distributee prior to the time speCified in the notice required by this subsection shall not discharge such representative as against a garnishment, attachment or other judicial process with respect to such debtor-distributee which is served upon such representative or upon such representative's attorney of record by or in behalf of any judgment creditor who has served and filed a request as described in subsection 1 of this section if such distribution is made after the serving and filing of such request by such judgment creditor and if such garnishment, attachment or other judicial process is served upon such personal representative or such representative's attorney of record prior to the scheduled date of such distribution.

HISTORY: L 1985 SB, 35, et aI., AL 1996 S,B, 869

NOTES: EFFECTIVE Effective 7-1-97

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§ 473.620. Order in which assets are appropriated .. abatement

1. When it is necessary that there be an abatement of the shares of the distributees, they shall, subject to the provisions of the will, abate, without any preference or priority as between real and personal property, in the following order:

(1) Property not disposed of by the will; (2) Residuary devises; (3) General legacies; (4) SpeCific devises. A general legacy charged on any

specifiC property or fund for the purposes of this section is deemed property specifically devised to the extent of the value of the thing on which it is charged. Upon the failure or insufficiency of the thing on which it is charged, it is deemed a general legacy to the extent of such failure or insufficiency, 2, Subject to the provisions of the will, and to section 473.623, devises of the same class shall abate proportionately, 3, If the provisions of the will or the testamentary plan or the express or implied purpose of the devise would be defeated by the order of appropriation and application prescribed by subsection 1 hereof, the property of the testator shall be apportioned in the manner found necessary to give effect to the intention of the testator.

HISTORY L 1955 p, 385 § 218 1984 J In determining how the surviving spouse's election to take against the will affects the distribution of the rest of the estate when the testator has not specified what is to happen, the court held that the legislature did not intend for the abatement statute to apply to an election to take against the will. Wilkinson v, Brune (Mo, App,J, 682 S.w.2d 107,

§ 473.623. Contribution between devisees When it is necessary under the provisions of section 473.620 that there be an abatement of specific devises, whether of real or personal property, the court may by order determine the manner in which such abatement shall be accomplished, so that the burden of such abatement will be borne by all speCific devisees proportionately according to the value of their respective specific devises, and if any specific devise is sold or applied to accomplish such abatement, the other specific devisees shall be obligated to contribute the respective amounts necessary so that the burden of such abatement will be borne proportionately as provided in this section, The court in its order shall determine the respective amounts to be so contributed and the same may be recovered by the executor or administrator or by the devisees entitled thereto,

HISTORY: L 1955 p, 385 § 219, A.L. 1978 H.B, 1634

NOTES: EFFECTIVE Effective 1-2-79

§ 473.627. Advancements to be determined

All questions of advancements made, or alleged to have been made by an intestate to any heir may be heard and determined by the court at the time of the hearing on the petition for final distribution or at any time prior thereto. The amount of every advancement shall be speCified in the decree of final distribution.

HISTORY: L. 1955 p. 385 § 220

§ 473.630. Right of retainer

When a distributee of an estate is indebted to the estate, the amount of the indebtedness if due, or the present worth of the indebtedness, if not due, may be treated as an offset by the executor or administrator against any testate or intestate property, real or personal, of the estate to which such distributee is entitled. An offset hereunder shall be treated as if made as of the time of the death of the decedent and interest shall be adjusted accordingly.

HISTORY: L. 1955 p. 385 § 221

§ 473.633. Interest on general legacies

1. All legacies, other than residuary ones or chattels, shall bear interest from twelve months after the date of the death of the testator at a rate equal to that allowed by law on money due upon order of the court. If the court finds that the legacies cannot be paid without jeopardizing the rights of interested parties because of litigation or other circumstances, the court shall determine what rate of interest, if any, not exceeding the rate allowed by law on money due upon order of the court, shall be allowed, after taking into consideration the income of the estate. 2. The yield on written instruments, shares of corporate stock and similar securities specifically devised shall be deemed a part of the legacy and shall be turned over to the legatee.

HISTORY: RSMo 1939 § 237, A.L. 1955 p. 385 § 222, A.L. 1985 S.B. 35, et al.

NOTES: PRIOR REVISIONS: 1929 § 238; 1919 § 237; 1909 § 246

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§ 473.637. Distributees to refund, when .. judgment

If after the payment of the legacies or distributions, it becomes necessary that the same, or any part thereof, be refunded for the payment of claims, the court on application filed within five years from the payment of the legacies or distributions shall apportion the same among the legatees or distributees. according to the amount received by them, except that speCific legacies are not required to be refunded unless the residue is not sufficient to satisfy the claims. If any legatee or distributee fails to refund, according to the order, on motion of the executor or administrator, the court shall, after ten days' notice in writing has been given to the legatee or distributee, enter judgment for the amount apportioned to him.

HISTORY: RSMo 1939 § 246, A.L. 1955 p. 385 § 223

NOTES: PRIOR REVISIONS: 1929 § 247; 1919 § 246; 1909 § 255

§ 473.640. Partition of personal property in kind

If personal property which is to be distributed may be divided in kind, the court may order a partition thereof among the parties entitled; and for that purpose the court may appoint not more than three commissioners, disinterested and of no kin to the parties, who, after making affidavit that they will honestly and impartially discharge the trust reposed in them, shall make partition as equal in kind as the value and numbers of the articles of property will admit and report their proceedings to the court at a time fixed by the court. The court shall consider all objections to the report and may approve or modify the report and order partition accordingly or it may reject the report and proceed to make partition or appoint new commissioners as often as necessary to accomplish an equitable partition which will meet the approval of the court.

HISTORY: RSMo 1939 § 239, A.L. 1955 p. 385 § 224, A.L 1959 S.B.141

NOTES: PRIOR REVISIONS: 1929 § 240; 1919 § 239; 1909 § 248

§ 473.643. Property sold to effect partition. when

1. If personal property cannot be divided in kind with advantage to the distributees, and it is not to their advantage that the same be sold by the personal representative, then, upon the application of a majority of those entitled to distribution, the court may order the same to be delivered to such person as they designate, in which selection minors shall act by their conservator, who shall proceed to collect. by suit or otherwise, all notes, accounts and choses in action so received in the name of the distributees, and dispose of all property so coming into his possession or under his control to their best interest, collecting the proceeds thereof, and distribute all moneys realized to the parties entitled thereto. 2. Such person, in the discretion of the court, may be required to give bond to the state of Missouri, with good securities, in such sum as the court may deem proper, for the faithful discharge of his duty, and for payment of parties entitled thereto of all moneys collected. 3. The party may be discharged from the trust upon his application, or upon the application of a majority of the heirs, when it appears to the court that it is not for the best interest of distributees that the trust be continued.

HISTORY: RSMo 1939 § 240, A.L. 1955 p. 385 § 225, A.L. 1978 H.B. 1634, A.L. 1983 S.B. 44 & 45

NOTES: PRIOR REVISIONS 1929§ 241; 1919§ 240; 1909§ 249

§ 473,647. Notice of application for partition

Each person entitled to partition of personal property, not applying therefor, shall be notified, in writing, of the application ten days before the order is made.

HISTORY: RSMo 1939 § 241, A.L. 1955 p. 385 § 226, A.L. 1980 S.B.637

NOTES: PRIOR REVISIONS: 1929§ 242; 1919§ 241; 1909§ 250

EFFECTIVE Effective 1·1-81

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§ 473.650. Distributee may credit share against purchase price. when

If a distributee becomes a purchaser of the property at a sale for the purpose of making distribution, his receipt for the amount of his share shall be received in payment of an equal amount of the purchase money, and the court shall allow the amount of such receipt as so much distributed under the order of cou rt.

HISTORY: RSMo 1939 § 243, A.L. 1955 p. 385 § 227

NOTES: PRIOR REVISIONS: 1929 § 244; 1919 § 243; 1909 § 252

§ 473.653. Proceedings to compel distribution

When an order is made by the court upon an executor or administrator to pay over money to the widow, heirs, legatees or distributees of an estate, and he fails to make such payment, the same proceedings may be had against him and his sureties to compel payment as are authorized in cases where an executor or administrator fails when ordered to pay claims allowed against an estate.

HISTORY: RSMo 1939 § 245, A.L. 1955 p. 385 § 229

NOTES: PRIOR REVISIONS: 1929 § 246; 1919 § 245; 1909 § 254

§ 473.657. Distribution

1. Distribution to a distributee may be made to the distributee or to a person holding a power of attorney properly executed by the distributee in accordance with the law of the place of execution, or to the distributee's personal representative, guardian, or conservator. 2. Distribution may be made to the trustees of a trust established pursuant to sections 402.199 to 402.225, RSMo, if the court finds that such distribution would be in the best interest of the distributee as prescribed by section 475.093, RSMo.

HISTORY: RSMo 1939 § 251, A.L. 1955 p. 385 § 230, A.L. 1983 S.B. 44 & 45 and H.B. 369, A.L. 1996 S.B. 494 and S.B. 768, A.L. 1999 S.B. 211

NOTES: PRIOR REVISIONS: 1929 § 252; 1919 § 251

§ 473.660. Discharge of personal representative

Upon the filing of receipts or other evidence satisfactory to the court that distribution has been made as ordered in the final decree, the court shall enter an order of discharge. The discharge so obtained operates as a release from the duties of personal representative and operates as a bar to any suit against the personal representative and his sureties unless the suit is commenced within one year from the date of the discharge. Nothing in this section shall be construed to change the effect of an order approving final settlement as provided in section 473.597.

HISTORY: L. 1955 p. 385 § 228, A.L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 473.663. No administration within one year after death and no will probated, interested party may petitionucontents of petition--notice

1. If a person has died leaving property or any interest in property in this state and if no administration has been commenced on the estate of such decedent in this state within one year after the date of decedent's death, and if no written will of such decedent has been presented for probate in this state within the time period provided in subsection 2 of section 473.050, then any person claiming an interest in such property as heir or through an heir may file a petition in the probate division of the circuit court which would be of proper venue for the administration of the estate of such decedent to determine the heirs of the decedent at the date of the decedent's death and their respective interests or interests as heirs in the estate. The petition shall include all of the following known by, or can with reasonable diligence be ascertained by, the petitioner:

(1) The name, age, domicile, last residence address and the fact and date of death of the decedent;

(2) The names, relationship to the decedent and residence addresses of the heirs of the decedent at the time of the decedent's death;

(3) The names and residence addresses of any persons claiming through an heir of the decedent when such heir has died after the decedent;

(4) A particular description of the property of the decedent in this state with respect to which the determination is sought and the value of such property. 2. Upon the filing of the petition, the court shall set the time for the hearing of the petition, notice of which shall be given to:

(1) All persons known or believed to claim any interest in the property as heir or through an heir of the decedent;

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(2) All persons who may at the date of the filing of the petition be shown by the records of conveyances of the county in which any real property described in such petition is located to claim any interest in such real property through the heirs of the decedent; and

(3) Any unknown heirs of the decedent. 3. The notice shall be given by publication by publishing the notice once each week for four consecutive weeks, the last insertion of publication to be at least seven days before the date set for the hearing. In addition, notice under subdivision (1) of subsection 2 of section 472.100, RSMo, or notice by registered or certified mail, as the court shall direct, shall be given to every person named in the petition whose address is known to the petitioner. 4. Upon the hearing of the petition, the court shall make a decree determining the person or persons entitled to the property with respect to which a determination is sought, and their respective interest in the property as heirs or successors in interest to such heirs. The decree is conclusive evidence of the facts determined in such decree as against all parties to the proceedings. 5. A certified copy of the decree shall be recorded at the expense of the petitioner in each county in which any real property described in the decree is situated. 6. This section shall apply to those persons whose deaths occur on or after July 13, 1989.

HISTORY: L. 1955 p. 385 § 231, A.L. 1957 p. 829, AL 1971 S.8. 85, A.L. 1982 S.B. 497, A.L 1989 H.B. 145. AL. 1996 S.B. 494

NOTES: EFFECTIVE Effective 5-23-96

§ 473.665. Definitions

As used in sections 473.665 to 473.694: (1) "Local administration" means administration by a

personal representative appointed in this state pursuant to proceedings described in this chapter;

(2) "Local personal representative" includes any personal representative apPointed in this state pursuant to appointment proceedings described in this chapter, and excludes foreign personal representatives who acquire the power of a local personal representative pursuant to section 473.677;

(3) "Resident creditor" means a person domiciled in, or doing business in, this state, who is, or could be, a claimant against an estate of a nonresident decedent.

HISTORY: L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 473.668. Administration of estate of nonresident decedent as original proceeding

Administration proceedings and other procedures in this state with respect to property, tangible or intangible, of a nonresident decedent which is within the jurisdiction of this state are original proceedings or procedures conducted under the authority of this state solely, and are independent of and not ancillary to proceedings or procedures in any other state or country, and shall be had and conducted in this state as if the decedent were a resident, subject to and supplemented by the provisions in sections 473.671 to 473.694. HISTORY: L. 1957 p. 860 § 1

§ 473.671. Jurisdiction of property--situs of intangibles

The courts of this state have jurisdiction over all tangible and intangible property of a nonresident decedent having a situs in this state. For the purpose of such jurisdiction it is recognized as to other states and countries, and declared with respect to this state, that the situs of debts, rights and choses in action which are embodied in legal instruments such as stock certificates, bonds, negotiable instruments, insurance policies payable to an estate and other similar items is in that state or country in which such legal instruments are located, so that whatever state or country has jurisdiction of such instruments has, and of right ought to have, jurisdiction to administer upon or otherwise direct the disposition of the debts, rights and choses in action which they embody, or voluntarily relinquish such jurisdiction to other states and countries. For such purpose the situs of other debts, rights and choses in action is where the debtor is found.

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§ 473.675. Applicability of law to estate of nonresident decedent··exceptions The law of this state respecting proceedings, procedures

and sUbstantive rights relating in any way to the property in this state of a nonresident decedent and its disposition, including by way of illustration, but not limited to, all matters relating to (i) the commencement and conduct of an administration, (ii) distributions during or at the conclusion of an administration, (iii) any trust created under the will of a nonresident decedent, shall apply as if the decedent had been a resident of this state, subject to the following:

(1) Nothing in sections 473.668 to 473.694 shall be deemed to affect:

(a) Methods of proving foreign wills or the admissibility of such wills to probate or to record;

(b) The rights of a surviving spouse electing to accept or take against the will of a nonresident decedent, or the method of such election;

(c) The right of a person to take as a pretermitted heir or otherwise against the will of a nonresident decedent;

(d) The effect of divorce or the birth of a child as working or not working a revocation or partial revocation of the will of a nonresident;

(e) The effect of the contest in another jurisdiction of the will of a nonresident decedent upon its validity in Missouri;

(D The applicability of any law in determining the validity of the execution of the will of a nonresident decedent;

(g) The determination of the ultimate burden of estate taxes imposed by reason of the death of a nonresident decedent;

(2) Real property of an intestate nonresident decedent descends according to the laws of this state, and his personal property devolves to his heirs or next of kin determined in accordance with the laws of the state or country of his domicile;

(3) Support and family allowances to surviving spouses and unmarried minor children are governed by the more liberal (to them) of the laws of the decedent's domicile and the laws of this state; but the court of this state in making such allowance and in ruling on applications for orders of refusal of letters of administration shall take into account any allowance which may be made in other jurisdictions and satisfied from property therein.

(4) Notwithstanding the requirements of this section that distributions during or at the conclusion of an administration shall be made as if the decedent were a resident, if the court finds that hardship to a foreign creditor would result therefrom or that the best interests of all persons having an interest in the estate would be forwarded by making a distribution to a foreign personal representative, the court may, in its discretion, order such distribution to the extent it finds necessary to avoid such hardship or to forward such interests.

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(5) If the aggregate of liabilities of the estate in all jurisdictions exceeds its aggregate assets, the court shall order distribution, as far as practicable, so that all the creditors of decedent's estate, here and elsewhere, may receive a share in proportion to their respective obligations, with regard being given to any preferential rights determined by the court. To this end, distribution to a foreign personal representative may be ordered if all creditors whose claims have been allowed in the administration in this state shall have received their just proportions that would be due to them if the whole of the estate of the decedent, wherever found, were divided among all creditors in proportion to their respective obligations, after applying Missouri law respecting preferences to different species of obligations, and if and to the extent that the court finds such preference to be equitable under all the circumstances of the particular case.

HISTORY: L. 1957 p. 860 § 3, A.L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

(1959) Evidence. held to establish domicile in state of Louisiana by pnor 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.

(1967) This section was intended to apply to generally recognized statutes of limitations, and was not intended to cause the nonclaim statute of the state in which a claim arose to become the applicable Missouri law upon presentation of such claim in Missouri probate proceedings. Owens v. Estate of Saville (Mo.), 409 SW,2d 660.

§ 473.676. Filing of copy of appointment of domiciliary foreign personal representative, when

If no local administration, or application or petition therefor, is pending in this state, a domiciliary foreign personal representative may file with a probate division of the circuit court in this st.ate, in a county in which property belonging to the decedent IS located, authenticated copies of his appointment and of any official bond he has given.

HISTORY: L. 1980 S,B. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 473.677. Domiciliary foreign personal representative, powers, duties and obligations

A domiciliary foreign personal representative, who has complied with section 473.676, may exercise as to assets in this state all powers of a local personal representative and may maintain actions and proceedings in this state, subject to any conditions imposed upon nonresident parties generally. When acting in this state under this authority, a domiciliary personal representative has the duties and obligations of a local personal representative, except that he may payor deliver personal property under section 473.691.

HISTORY: L. 1980 S.B. 637

NOTES EFFECTIVE Effective 1-1-81

§ 473.678. Power of domiciliary foreign personal representative. when executed .. termination of powers -- sUbstitution of local personal representative. when

The power of a domiciliary foreign personal representative under section 473.677 or 473.691 shall be exercised only if there is no administration, or application therefor, pending in this state. An application or petition for local administration of the estate terminates the power of the foreign personal representative to act under section 473.677, but the local court may allow the foreign personal representative to exercise limited powers to preserve the estate. No person who, before receiving actual notice of a pending local administration, has changed his position in reliance upon the powers of a foreign personal representative shall be prejudiced by reason of the application or petition for, or grant of, local administration. The local personal representative acquires all the rights, and is subject to all duties and obligations, which have accrued by virtue of the exercise of the powers by the foreign personal representative, and may be substituted for him in any action or proceedings in this state.

HISTORY: L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

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§ 473.682. Priority of personal representative appointed by court of decedent's domicile-­exceptions

A personal representative apPOinted by a court of the decedent's domicile has priority over all other persons for appointment as local personal representative, except where the decedent's will nominates different persons to be personal representative in this state and in the state of domicile. The domiciliary personal representative may nominate another, who shall have the same priority as the domiciliary personal representative.

HISTORY: L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 473.685. Foreign personal representative subject to jurisdiction of courts of state, when

A foreign personal representative submits himself to the jurisdiction of the courts of this state by:

(1) Filing authenticated copies of his appointment as provided in section 473.676;

(2) Receiving payment of money or taking delivery of personal property under section 473.691; or

(3) Doing any act as a personal representative in this state which would have given the state jurisdiction over him as an individual. Jurisdiction under subdivision (2) is limited to the money or value of personal property collected.

HISTORY: L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 473.687. Foreign personal representative also subject to court's jurisdiction to same extent as decedent prior to death

In addition to jurisdiction conferred by section 473.685, a foreign personal representative is subject to the jurisdiction of the courts of this state to the same extent that his decedent was subject to jurisdiction immediately prior to death.

HISTORY: L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1·1-81

§ 473.689. Service of process on foreign personal representative, how made

1. Service of process may be made upon a foreign personal representative by registered or certified mail, addressed to his 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 a foreign personal representative in the manner in which service could have been made under other laws of this state on either the foreign personal representative or his decedent immediately prior to death. 2. If service is made upon a foreign personal representative as provided in subsection 1, he shall be allowed at least thirty days within which to appear or respond.

HISTORY: L. 1980 S.B. 637 NOTES: EFFECTIVE Effective 1-1-81

§ 473.691. Debtor or custodian may payor deliver personal property to foreign representative, when Any person, firm or corporation upon whom no demand has been made by a personal representative or other person authorized by this state to collect a nonresident decedent's personal property may, at any time sixty days or more after his death, transfer, payor deliver personal property of the nonresident decedent to the foreign personal representative or, if none, to such other person as may be entitled thereto, under the laws of said foreign state, and shall not be liable for the debts of or claims against the nonresident decedent or his estate by reason of having made the transfer, payment or delivery.

HISTORY L. 1957 p. 861 § 6, A.L. 1959 S.B. 335, A.L. 1967 p. 643

§ 473.692. Adjudication against any personal representative of estate binding on local personal representative An adjudication rendered in any jurisdiction in favor of or against any personal representative of the estate is as binding on the local personal representative as if he were a party to the adjudication.

HISTORY: L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 473.694. Effect of law on reciprocal corporate fiduciaries law

Nothing in sections 473.668 to 473.694 authorizes any "foreign corporation", as the terT IS defined in section

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362.600, RSMo, to act in any fiduciary capacity except as such foreign corporation is expressly permitted so to act by the provisions of section 362.600, RSMo.

HISTORY: L. 1957 p. 860 § 7, A.L. 1971 S.B. 163

§ 473.697. Letters of administration for persons absent for five or more years •• application .. notice •• hearing

Whenever application shall be made to any probate division for letters of administration upon the estate of any person supposed to be dead, because of the absence of such person for five consecutive years from the place of his last known domicile within this state, or because, having been a resident of this state, such person has heretofore gone from and has not returned to this state for five consecutive years, or, because, having been such resident of this state, such person shall hereafter go from and shall not return to this state for five consecutive years, or, because being a resident of this state, such person shall have so concealed or conducted himself within this state that he shall not have been heard of for five consecutive years by the judge of the probate division having jurisdiction of his estate, or by the persons interested therein, then said court, if satisfied that the applicant would be entitled to such letters if the supposed decedent were in fact dead, shall cause a notice to such supposed deceased person to be published in a newspaper, published in the county, once a week for four consecutive weeks, setting forth the fact that such application has been made, together with notice that on a day certain, which shall be at least two weeks after the last publication of such notice, the court will hear evidence concerning the alleged absence of the supposed decedent, and the circumstances and duration thereof. The persons applying for such letters of administration shall file a petition stating the facts upon which such application is based and the place where such supposed deceased person resided when last heard from by him or by any person within his knowledge.

HISTORY: RSMo 1939 § 264, A.L. 1978 H.B. 1634, A.L. 1980 S.B. 637

NOTES: PRIOR REVISIONS: 1929 § 265; 1919 § 264; 1909 § 271

EFFECTIVE Effective 1-1-81

CROSS REFERENCES: Presumption of death, when, RSMo 490.620

NOTES APPLICABLE TO ENTIRE CHAPTER

§ 473.700. Who may testify

At the hearing the court shall receive such legal evidence as shall be offered, for the purpose of ascertaining whether the presumption of death is established; and no person shall be disqualified to testify by reason of his or her relationship as husband or wife to the supposed deceased, or by reason of his or her interest in the estate of the person supposed to be dead.

HISTORY: RSMo 1939 § 265

NOTES: PRIOR REVISIONS: 1929 § 266; 1919 § 265; 1909 § 272

§ 473.703. Publication of finding··time for rebuttal

If satisfied, upon such hearing, that the legal presumption of death is established, the court shall so declare and it shall forthwith cause notice thereof to be published once a week for four consecutive weeks, in a newspaper published in the county, and also, if the court shall find that such supposed decedent resided in or was possessed of property located in any county in this or any other state at a time subsequent to his residence in the county in which applications are made, the notice of such publication shall be published in like manner in such other county. Such notice shall require the supposed decedent, if alive, or any other person for him, to produce to the court, within twelve weeks from the date of the last publication thereof, satisfactory evidence of the fact that he is still living; provided, that where publication is made in a daily newspaper, publication for each week after the first shall fall on the corresponding day of the week as did the first publication.

HISTORY: RSMo 1939 § 266

NOTES: PRIOR REVISIONS: 1929§ 267; 1919§ 266; 1909§ 273

§ 473.707. Issuance of letters, when

If, within such period of twelve weeks, evidence shall not be offered satisfactory to the court that said supposed decedent is in fact still living, then it shall be the duty of the court to issue letters of administration to the party entitled thereto; and said letters, until revoked, and all acts done in pursuance thereof and in reliance thereupon, shall be as valid as if the supposed decedent were in fact dead.

HISTORY: RSMo 1939 § 267. A.L 1978 H.B. 1634 NOTES: PRIOR REVISIONS: 1929 § 268; 1919 § 267; 1909 § 274 EFFECTIVE Effective 1-2-79

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§ 473.710. Revocation of letters, when--effect·· procedure

The court may revoke said letters of administration at any time, upon satisfactory proof that the supposed decedent is in fact alive. After such revocation all the powers of the administrator shall cease, but all receipts and disbursements of assets, and other acts previously done by him, shall remain as valid as if said letters were unrevoked; and the administrator shall thereupon make a settlement of his administration to the date of revocation, and shall transfer all assets remaining in his hands to said supposed decedent, or to his duly authorized agent or attorney; provided, nothing in sections 473.697 to 473.720 contained shall validate the title of any person to any money or property received as widow, next of kin or heir of such supposed decedent, but the same may be recovered from such parties in all cases in which such recovery could be had if said sections had not been passed.

HISTORY: RSMo 1939 § 268, A.L. 1978 H.B. 1634

NOTES: PRIOR REVISIONS: 1929 § 269; 1919 § 268; 1909 § 275

EFFECTIVE Effective 1-2-79

§ 473.713. Distributees to give bond before receiving estate

Before the distribution of the proceeds of the estate of such supposed decedent shall be made, the persons entitled to receive the same, respectively, shall enter into a bond to the state of Missouri, with sufficient security, to be approved by the court having jurisdiction of said estate, in such sum and in such form as the court shall direct, conditioned that if said supposed decedent shall in fact be alive at the time of such distribution, then the distributees shall refund the amount received by them, on demand, with interest thereon from the date of such demand; but if any person entitled to receive such distribution shall be unable to give the security aforesaid, then the money which he would be entitled to receive shall be paid over to the county treasurer, and by him loaned at the highest rate of interest obtainable, on security approved by said probate division of the circuit court, which interest shall be paid annually to the person entitled thereto, and such money shall remain so at interest until the security aforesaid is given, or the court, upon application, shall order it to be paid to the person or persons entitled to receive the same. HISTORY: RSMo 1939 § 269, A.L. 1978 H.B. 1634 NOTES: PRIOR REVISIONS: 1929 § 270; 1919 § 269; 1909 § 276

§ 473.717. Supposed decedent substituted for administrator, when .. effect on actions, judgments

1. After the revocation of such letters of administration as aforesaid, the person erroneously supposed to be dead may, upon suggestion of said fact, filed of record, be substituted in all actions brought by the administrator of his estate, whether prosecuted to judgment or otherwise. He may, in all actions previously brought against his administrator, be substituted as defendant, on proper suggestion, filed by himself or by the plaintiff therein, but he shall not be compelled to go to trial in less than three months from the time of the filing of such suggestion. 2. Judgments recovered against the administrator before the revocation of his letters, as aforesaid, may be opened, upon application by the supposed decedent, if made by affidavit, denying specifically, on the knowledge of the affiant, the cause of action, or speCifically alleging the existence of facts which would be a valid defense; but if within said three months. such application shall not be made, or, being made, the facts exhibited shall be adjudged an insufficient defense, the judgment shall be conclusive to all intents, saving the defendant's right to have the same reviewed, as in other cases, by appeal or by writ of error, as now provided by law. After the substitution of the supposed decedent as defendant in any judgment, as aforesaid, such judgment shall become a lien on his real estate situate in the county for which the court is held, and shall have the same force and effect as if said action had been originally instituted against said supposed decedent.

HISTORY: RSMo 1939 § 270

NOTES: PRIOR REVISIONS: 1929§ 271; 1919§ 270; 1909§ 277

§ 473.720. Payment of costs

The costs attending the issue of letters of administration, or the revocation, shall be paid out of the estate of the supposed decedent; and all costs arising upon an application for letters which are refused shall be paid by the applicant.

HISTORY: RSMo 1939 § 271 NOTES: PRIOR REVISIONS: 1929 § 272; 1919 § 271; 1909 § 278

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§ 473.730. Public administrators •• election •• oath· • bond •• public administrator deemed public office, duties •• salaried public administrators deemed county officials

1. Every county in this state, and the city of St. Louis, shall elect a public administrator at the general election in the year 1880, and every four years thereafter, who shall be ex officio public guardian and conservator in and for the public administrator's county. Before entering on the duties of the public administrator's office, the public administrator shall take the oath required by the constitution, and enter into bond to the state of Missouri in a sum not less than ten thousand dollars, with two or more securities, approved by the court and conditioned that the public administrator will faithfully discharge all the duties of the public administrator's office, which bond shall be given and oath of office taken on or before the first day of January following the public administrator's election, and it shall be the duty of the judge of the court to require the public administrator to make a statement annually, under oath, of the amount of property in the public administrator's hands or under the public administrator's control as such administrator, for the purpose of ascertaining the amount of bond necessary to secure such property; and such court may from time to time, as occasion shall require, demand additional security of such administrator, and, in default of giving the same within twenty days after such demand, may remove the administrator and appoint another. 2. The public administrator in all counties, in the performance of the duties required by chapters 473,474, RSMo, and 475, RSMo, is a public officer. The duties speCified by section 475.120, RSMo, are discretionary. The county shall defend and indemnify the public administrator against any alleged breach of duty, provided that any such alleged breach of duty arose out of an act or omission occurring within the scope of duty or employment. 3. After January 1, 2001, all salaried public administrators shall be considered county officials for purposes of section 50.333, RSMo, subject to the minimum salary requirements set forth in section 473.742.

HISTORY: RSMo 1939 § 295, A. 1949 S.B. 1132, A.L. 1978 H.B. 1634, A.L. 1983 S.B. 44 & 45, A.L. 1993 S.B. 88, A.L. 1996 S.B. 719, A.L. 2000 S.B. 542

NOTES: PRIOR REVISIONS: 1929 § 296; 1919 § 293; 1909 § 299

*Transferred 1957; formerly 461.780

§ 473.733. Certificate and oath "" bond, how sued on

The public administrator's certificate of election, official oath and bond shall be filed and recorded with the probate clerk, and copies thereof, certified under the seal of such court, shall be evidence. Any person injured by the breach of such bond may sue upon the same in the name of the state for his own use.

HISTORY: RSMo 1939 § 297, AL. 1996 S.B. 719

NOTES: PRIOR REVISIONS: 1929 § 297; 1919 § 294; 1909 § 300

§ 473.737. Administrators to have separate offices" " St. Louis administrator in civil courts building "" certain public administrators to have secretaries .. clerical personnel to be provided, when

1. Each public administrator elected, as now or as hereafter provided for in sections 473.730 to 473.767, is hereby declared to be an officer for the county in which such administrator is elected and for the city of SI. Louis, if elected therein. The county commissions of each county in this state shall make suitable provision for an office for the public administrator in the courthouse of the county if suitable space may be had for such an office, and shall be provided as soon as the county commission shall be of the opinion that the business in charge of the public administrator is such as to reasonably require a separate office for the convenience of the public. The public administrator of the city of SI. Louis shail have suitable and convenient offices provided for him or her in the civil courts building by that city. 2. Each public administrator of a county, except a county of the first classification having a charter form of government, in which a state mental hospital is located, or any county of the second classification which contains a habilitation center operated by the department of mental health and which does not adjoin a county of the first classification shall be entitled to one secretary for one hundred cases or more handled by the office of the public administrator in the immediately preceding calendar year. Each secretary employed pursuant to the provisions of this subsection shall be paid in the same pay range as a court clerk II in the circuit court personnel system. All compensation paid secretaries employed pursuant to the provisions of this subsection shall be paid out of the county treasury and the commissioner of administration shall annually reimburse each county for the compensation so paid upon proper demand being made out of appropriations made for that purpose. The public administrator in such counties may also appoint a person to act as public administrator to serve during the absence of the public administrator.

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3. The governing bodies of each county and each city not within a county of this state may provide clerical personnel, not qualifying as status of deputy, for the public administrator of the county, and such personnel shall be provided when the governing body is of the opinion that the business in charge of the public administrator is such as to reasonably require such personnel for the welfare of the public.

HISTORY: RSMo 1939 § 296, A.L. 1945 p. 73, A.L. 1989 S.B. 127, et al.. A.L. 1990 H.B. 1177 and S.B. 580, A.L. 1999 H.B. 275

NOTES: EFFECTIVE Effective 6-10-99

§ 473.739. Compensation for attendance at training session, certain public administrators, expenses shall be reimbursed, when (certain noncharter counties of the first classification)

1. Each public administrator in counties of the first classification without a charter form of government who does not receive at least twenty-five thousand dollars in fees as otherwise allowed by law shall receive annual compensation of four thousand dollars and each such public administrator who does not receive at least forty-five thousand dollars in fees may request the county salary commission for an increase in annual compensation and the county salary commission may authorize an additional increase in annual compensation not to exceed ten thousand dollars. 2. Two thousand dollars of the compensation authorized in this section shall be payable to the public administrator only if he has completed at least twenty hours of classroom instruction each calendar year relating to the operations of the public administrator's office when approved by a professional association of the county public administrators of Missouri unless exempted from the training by the professional association. The professional association approving the program shall provide a certificate of completion to each public administrator who completes the training program and shall send a list of certified public administrators to the treasurer of each county. Expenses incurred for attending the training session shall be reimbursed to the county public administrator in the same manner as other expenses as may be appropriated for that purpose.

HISTORY: L. 1984 S.B. 601 § 13, A.L. 1987 S.B. 65, et aI., A.L. 1990 S.B. 580, AL.1996 S.B. 719, A.L.1997 S.B.l1, AL. 2000 S.B.542

§ 473.740. Compensation. Boone and Clav counties •• removal from office .• public administrator's fees paid to county. when •• public administrator's salary in lieu of fees. when

1. In all first classification counties not having a charter form of government and containing a portion of a city having a population of four hundred thousand or more inhabitants, and in all first classification counties not having a charter form of government and having a population of one hundred ten thousand, but less than two hundred thousand inhabitants, the public administrator shall receive as total compensation for such public administrator's services an annual salary established pursuant to section 50.343, RSMo, to be paid in equal monthly installments by the county. In any other counties of the first classification not having a charter form of government, the salary commission may elect by majority vote to establish a salary as the alternative total compensation to be offered as compensation to the public administrator, to be paid in equal monthly installments by the county. If the salary commission elects to establish such salary alternative, it shall be established at either the time set forth in section 50.343, RSMo, or at the salary commission meeting prior to the general election for the election of the office of public administrator. Should the salary commission elect to establish such salary alternative, the newly elected public administrator shall then make a determination within thirty days after taking office whether such public administrator elects to receive such salary or receive fees as may be allowed by law to executors, administrators and personal representatives, unless the court, for special reasons, allows a higher compensation. The election by the public administrator shall be made in writing to the county clerk. Should the public administrator elect to receive a salary, the public administrator's office may not then change at any future time to receive fees in lieu of salary. The alternative salary, if election is made by the public administrator to accept such, shall be in lieu of any compensation as set forth in section 473.739. In all other counties, the public administrator shall receive the same compensation for such public administrator's services as may be allowed by law, and as set forth in section 473.739, to executors, administrators, and personal representatives, unless the court, for special reasons, allows a higher compensation. Any such public administrator may be removed from office in the same manner and for the same causes as commissioners of the county commission. 2. In all counties in which the public administrator is paid an annual salary by the county, the county shall receive all amounts which would have been paid to the public administrator for the administrator's services pursuant to this chapter if such public administrator were in a county in which the public administrator was not paid an annual salary as provided in subsection 1 of this section. All amounts received

102

by the county pursuant to the provisions of this subsection shall be deposited in the county treasury.

HISTORY: RSMo 1939 § 298, A.L. 1981 S.B. 423, A.L. 1987 S.B. 65, et aI., A.L. 1992 H.B. 1571, A.L. 1995 H.B. 274 & 268, A.L. 1996 H.B.1286

NOTES: PRIOR REVISIONS: 1929 § 298; 1919 § 295; 1909 § 301

CROSS REFERENCES: Public administrator Boone and Clay County compensation how detemnined, RSMo 50.343

§ 473.741. County governing body may authorize additional compensation. when •• maximum aI/owed •• additional compensation to terminate. when (certain first class counties)

1. In addition to the compensation otherwise authorized by law for public administrators in first class counties not having a charter form of government and containing a portion of a city having a population of four hundred thousand or more inhabitants, the governing body of each of such counties may authorize additional compensation for the public administrator to be paid from county funds. Total compensation for each such public administrator, including any compensation authorized under this section, shall not exceed thirty-four thousand dollars per annum. 2. Prior to February 1, 1984, and thereafter prior to February first in each year in which a general election will be held at which public administrators will be elected, the governing body of each county defined in subsection 1 of this section shall establish the additional compensation to be paid the public administrator under this section for the enSUing term of office, and such additional compensation shall be paid the public administrator throughout such ensuing term of office. 3. All provisions of this section which authorize the granting of additional compensation for public administrators in the counties defined in subsection 1 of this section shall terminate upon the issuance of an opinion by the Missouri supreme court which would result in the state of Missouri being obligated or required to pay any such additional compensation even though such additional compensation is formally approved or authorized by the governing body of a county.

HISTORY: L. 1983 S.B. 57 § 4

§ 473.742. Salary schedule for public administrators. certain counties •• administrator to choose salary or fee collection •• certain administrators may join LAGERS

1. Each public administrator in counties of the second, third or fourth classification and in the city of SI. Louis shall make a determination within thirty days after taking office whether such public administrator shall elect to receive a salary as defined herein or receive fees as may be allowed by law to executors, administrators and personal representatives. The election by the public administrator shall be made in writing to the county clerk. Should the public administrator elect to receive a salary, the public administrator's office may not then elect to change at any future time to receive fees in lieu of salary. 2. If a public administrator elects to be placed on salary, the salary shall be based upon the average number of open . letters in the two years preceding the term when the salary IS

elected, based upon the following schedule: (1) Zero to five letters: Salary shall be a minimum of seven

thousand five hundred dollars; (2) Six to fifteen letters: Salary shall be a minimum of

fifteen thousand dollars; (3) Sixteen to twenty-five letters: Salary shall be a minimum

of twenty thousand dollars; (4) Twenty-six to thirty-nine letters: Salary shall be a

minimum of twenty-five thousand dollars; (5) Public administrators with forty or more letters shall be

considered full-time county officials and shall be paid according to the assessed valuation schedule set forth below:

Assessed valuation $ 8,000,000 to 40,999,999 $ 41,000,000 to 53,999,999 $ 54,000,000 to 65,999,999 $ 66,000,000 to 85,999,999 $ 86,000,000 to 99,999,999 $ 100,000,000 to 130,999,999 $ 131,000,000 to 159,999,999 $ 160,000,000 to 189,999,999 $ 190,000,000 to 249,999,999 $ 250,000,000 to 299,999,999 $ 300,000,000 to 449,999,999 $ 450,000,000 to 599,999,999 $ 600,000,000 to 749,999,999 $ 750,000,000 to 899,999,999

Salary $29,000 $30,000 $32,000 $34,000 $36,000 $38,000 $40,000 $41,000 $41,500 $43,000 $45,000 $47.000 $49,000 $51,000

$ 900,000,000 to 1,049,999,999 $1,050,000,000 to 1,199,999,999 $1,200,000,000 to 1,349,999,999 $1,350,000,000 and over

$53,000 $55,000 $57,000

$59,000;

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(6) The public administrator in the city of SI. Louis shall receive a salary not less than sixty-five thousand dollars. 3. The initial compensation of the public administrator who elects to be put on salary shall be determined by the average number of letters for the two years preceding the term when the salary is elected. Salary increases or decreases according to the minimum schedule set forth in subsection 1 of this section shall be adjusted only after the number of open letters places the workload in a different subdivision for two consecutive years. Minimum salary increases or decreases shall only take effect upon a new term of office of the public administrator. The number of letters each year shall be determined in accordance with the reporting requirements set forth in law. 4. All fees collected by a public administrator who elects to be salaried shall be deposited in the county treasury or with the treasurer for the city of SI. Louis. 5. Any public administrator in a county of the first classification without a charter form of government with a population of less than one hundred thousand inhabitants who elects to receive fees in lieu of a salary pursuant to this section may elect to join the Missouri local government employees' retirement system created pursuant to sections 70.600 to 70.755, RSMo.

HISTORY: L 2000 S.B. 542

§ 473.743. Duty of public administrator to take charge of estates, when

It shall be the duty of the public administrator to take into his charge and custody the estates of all deceased persons, and the person and estates of all minors, and the estates or person and estate of all incapacitated persons in his county, in the following cases:

(1) When a stranger dies intestate in the county without relations, or dies leaving a will, and the personal representative named is absent, or fails to qualify;

(2) When persons die intestate without any known heirs; (3) When persons unknown die or are found dead in the

county; (4) When money, property, papers or other estate are left in

a situation exposed to loss or damage, and no other person administers on the same;

(5) When any estate of any person who dies intestate therein, or elsewhere, is left in the county liable to be injured, wasted or lost, when the intestate does not leave a known husband, widow or heirs in this state;

(6) The persons of all minors under the age of fourteen years, whose parents are dead, and who have no legal guardian or conservator;

(7) The estates of all minors whose parents are dead, or, if living, refuse or neglect to qualify as conservator, or, having qualified have been removed, or are, from any cause, incompetent to act as such conservator, and who have no one authorized by law to take care of and manage their estate;

(8) The estates or person and estate of all disabled or incapacitated persons in his county who have no legal guardian or conservator, and no one competent to take charge of such estate, or to act as such guardian or conservator, can be found, or is known to the court having jurisdiction, who will qualify;

(9) Where from any other good cause, the court shall order him to take possession of any estate to prevent its being injured, wasted, purloined or lost.

HISTORY: RSMo 1939 § 299, AL. 1983 S.B. 44 & 45

NOTES: PRIOR REVISIONS: 1929 § 299; 1919 § 296; 1909 § 302

(1957) Where application for guardianship of minors did not give the domicile of the minors or of their parents, nor the names and addresses of the parents or spouses of the minors nor state who had custody of the minors, it failed to confer jurisdiction on the court to appoint the public administrator as guardian. In re Dugan (A.), 309 SW.2d 145.

104

§ 473.747. Public administrator shall be ex officio public conservator The public administrator shall be ex officio public conservator and shall have charge of all estates of minors that may, by the order of the court, be placed in the public administrator's charge, and in such cases the public administrator shall be known and deSignated as public conservator.

HISTORY: RSMo 1939 § 437, A.L. 1978 H.B. 1634, AL. 1983 S.B. 44 & 45, AL. 1996 S.B. 719

NOTES: PRIOR REVISIONS: 1929 § 438; 1919 § 434; 1909 § 464

§ 473.750. Powers and duties under administration law

In addition to the provisions of sections 473.730 to 473.767, he and his securities shall have the same powers as are conferred upon, and be subject to the same duties, penalties, provisions and proceedings as are enjoined upon or authorized against personal representatives, guardians and conservators by chapters 472 to 475, RSMo, so far as the same may be applicable. He shall have power to administer oaths and affirmations in all matters relating or belonging to the exercise of his office.

HISTORY: RSMo 1939 § 300, AL. 1983 SB. 44 & 45

NOTES: PRIOR REVISIONS: 1929 § 300; 1919 § 297; 1909 § 303

§ 473.753. Notice of administration, when and how given •• penalty for failure

It shall be the duty of every public administrator immediately upon taking charge of any estate, except those of which he shall have taken charge under the order of the court, for the purpose of administering the same, to file a notice of the fact in the office of the clerk of the court. If any public administrator shall fail to file the notice provided for in this section, he shall forfeit and pay to the persons entitled to the estate a sum not exceeding two hundred dollars, to be recovered before said court, on motion, and after reasonable notice thereof to said public administrator; and said court may, in its discretion, remove such public administrator from office.

HISTORY: RSMo 1939 § 302, AL. 1978 H.B. 1634

NOTES: PRIOR REVISIONS: 1929 § 302; 1919 § 299; 1909 § 305

§ 473.757. Civil officers to inform public administrator as to property, when

It shall be the duty of all civil officers to inform the public administrator of all property and estate known to them which is liable to loss, waste or injury, and which by law ought to be in the possession of the public administrator.

HISTORY: RSMo 1939 § 303

NOTES: PRIOR REVISIONS: 1929 § 303; 1919 § 300; 1909 § 306

§ 473.760. Shall prosecute necessary suits

The public administrator shall institute all manner of suits and prosecutions that may be necessary to recover the property, debts, papers or other estates of the person deceased, or of any minor, or disabled person, in his charge or custody.

HISTORY RSMo 1939 § 304, A.L. 1983 S.B. 44 & 45

NOTES: PRIOR REVISIONS: 1929§ 304; 1919§ 301; 1909§ 307

§ 473.763, Court may order public administrator to account to successor, when

The court may at any time, for good cause shown, order the public administrator to account for and deliver all money, property or papers belonging to any estate in his hands to his successor in office, or to the heirs of said estate, or to any executor or administrator regularly appointed, as provided by law.

HISTORY: RSMo 1939 § 305, A.L. 1978 H.B. 1634

NOTES: PRIOR REVISIONS: 1929 § 305; 1919 § 302; 1909 § 308

EFFECTIVE Effective 1-2-79

105

§ 473.767. Public administrator, duties after expiration of term •• duties prior to expiration of term, certain counties

1. In counties operating under fee retention, the public administrator shall before the first court day after the expiration of one year after their successor in office has qualified, file a final settlement as required by section 473.540 for all estates in their charge as public administrator in which final settlement can be made. On the first court day after the expiration of one year after the election of a successor to the public administrator, the judge of the probate division, upon the judge's own motion, shall order the public administrator to account for and deliver all money, property, or papers belonging to all estates in his or her hands in which final settlement cannot be made, to the successor in office, or to the heirs of any estate, or to any executor or administrator regularly appointed, and such accounting and delivery shall be accomplished during the sixty days next thereafter. 2. In counties where the public administrator is paid a salary, the public administrator shall deliver property and make necessary filings as required in this section prior to leaving his or her term of office. 3. Notwithstanding the provisions of subsection 1 of this section, the former public administrator or their legal representative, upon approval and order of the judge of the probate division of the circuit court having jurisdiction over the estates in which the former public administrator has been appointed personal representative, guardian or conservator, shall turn over the administration of the estates to the successor public administrator. A copy of the annual account of each estate in part covering the term of the former public administrator shall be filed with the probate division by the successor public administrator and the successor public administrator shall be charged with the assets and liabilities shown thereby.

HISTORY: RSMo 1939 § 301, A.L. 1955 p. 385 § 232, A.L. 1978 H.B. 1634, A.L. 1981 S.B. 423, A.L. 1987 S.B. 65, et aI., A.L. 1989 S.B. 181, A.L. 1990 S.B. 596, A.L. 1992 S.B. 817, A.L. 1993 S.B. 88, A.L. 1998 S.B. 764, A.L. 2000 S.B. 542

NOTES: PRIOR REVISIONS: 1929 § 301; 1919 § 298; 1909 § 304

*Transferred 1957; formerly 461.890

§ 473.770. Deputies, appointment, tenure, compensation, powers (first class counties) .• delegation of duties, certain counties

1. Whenever, in the judgment of any public administratbt in any county of the first class, it is necessary for the proper and efficient conduct of the business of his office that he appoint any deputies to assist him in the performance of his official duties as public administrator or as executor, administrator, personal representative, guardian, or conservator in any estates wherein he has been specially appointed, the public administrator may appoint one or more deputies to assist him in the performance of his duties as public administrator and as executor, administrator, personal representative, guardian. or conservator in the estates wherein he has been specially appointed. The appointment shall be in writing and shall be filed with the court, and, upon the filing, the court shall issue under its seal a certificate of the appointment for each deputy, stating that the appointee is vested with the powers and duties conferred by this section. The certificate shall be valid for one year from date, unless terminated prior thereto, and shall be renewed from year to year as long as the apPointment remains in force, and may be taken as evidence of the authority of the deputy. The appointment and authority of any deputy may at any time be terminated by the public administrator by notice of the termination filed in the court. and upon termination the deputy shall surrender his certificate of appointment. 2. In all first class counties not having a charter form of government and containing a portion of a city having a population of three hundred thousand or more inhabitants, the compensation of each such deputy shall be set by the public administrator, with the approval of the governing body of the county, and shall be paid in equal monthly installments out of the county treasury. In all other first class counties the compensation of each such deputy shall be prescribed and paid by the public administrator out of the fees to which he is legally entitled, and no part of such compensation shall be paid out of any public funds or assessed as costs or allowed in any estate. 3. Each deputy so appointed shall be authorized to perform such ministerial and nondiscretionary duties as may be delegated to him by the public administrator, including:

(1) Assembling, taking into possession, and listing moneys, checks, notes, stocks, bonds and other securities, and all other personal property of any and all estates in the charge of the public administrator;

(2) Depositing all moneys, checks, and other instruments for the payment of money in the bank accounts maintained by the public administrator for the deposit of such funds;

(3) Signing or countersigning any and all checks and other instruments for the payment of moneys out of such bank accounts, in pursuance of general authorization by the public

106

administrator to the bank in which the same are depOSited, as long as such authorization remains in effect;

(4) Entering the safe deposit box of any person or decedent whose estate is in the charge of the public administrator and any safe deposit box maintained by the public administrator for the safekeeping of assets in his charge, as a deputy of the public administrator, pursuant to general authorization given by the public administrator to the bank or safe deposit company in charge of any such safe deposit box, as long as such deputy-authorization remains in effect, and withdrawing therefr~m and depositing therein such assets as may be determined by the public administrator. The bank or safe deposit company shall not be charged with notice or knowledge or any limitation of authority of the authorized deputy, unless specially notified in writing thereof by the public administrator, and may allow the deputy access to the safe deposit box, in the absence of notice, to the full extent allowable to the public administrator in person. 4. The enum.eration of the foregoing powers shall not operate as an ~xcluslon of any powers not specifically conferred. No authOrized deputy shall exercise any power, other than as prescribed in this section, which shall require the exercise of a discretion en.i~ined by law to be exercised personally by the executor, ad~lnlstrator, personal representative, guardian, or conservator In charge of the estate to which the discretionary power refers. 5. Notwithstanding the provisions of subsections 3 and 4 of this section to the contrary, a public administrator in a county of the. fi~st class having a charter form of government and containing all or part of a city with a population of at least three hundr~d thousa~d inhabitants may delegate to any dep~t~ appOinted by him any of the duties of the public administrator enumerated in section 473.743, and sections 475.120 and 475.130, RSMo. Such public administrator may also d~legate to a deputy who is a licensed attorney the autho!lty to execute inventories, settlements, surety bonds, pleadings and other documents filed in any court in the name of the public administrator, and the same shall have the force and effect as if executed by the public administrator.

HISTORY: L. 1957 p. 869 § § 1,2, A.L. 1978 H.B. 1634, A.L. 1981 S.B. 423, A.L. 1983 S.B. 44 & 45, A.L. 1993 S.B. 88

§ 473.771. Deputies, appointment in all counties but first class •• tenure •• compensation •• powers

1. Whenever, in the judgment of any public administrator in any county which is not a first class county, it is necessary for the proper and efficient conduct. of the business of his office that he appoint a deputy to assist him in the performance of his official duties as public administrator or as executor, administrator, personal representative, guardian, or conservator in any estates wherein he has been specially appointed, the public administrator may appoint a deputy to assist him in the performance of his duties as public administrator and as executor, administrator, personal representative, guardian, or conservator in the estates wherein he has been specially appointed. The appointment shall be in writing and shall be filed with the court, and, upon the filing, the court shall issue under its seal a certificate of the appointment for the deputy, stating that the appointee is vested with the powers and duties conferred by this section. The certificate shall be valid for one year from the date, unless terminated prior thereto, and shall be renewed from year to year as long as the appointment remains in force, and may be taken as evidence of the authority of the deputy. The appointment and authority of a deputy may at any time be terminated by the public administrator by notice of the termination filed in the court, and upon termination the deputy shall surrender his certificate of appointment. 2. The compensation of a deputy appointed pursuant to the provisions of this section shall be prescribed and paid by the public administrator out of the fees to which he is legally entitled. 3. A deputy appointed pursuant to the provisions of this section shall be authorized to perform such ministerial and nondiscretionary duties as may be delegated to him by the public administrator, including:

(1) Assembling, taking into possession, and listing moneys, checks, notes, stocks, bonds and other securities, and all other personal property of any and all estates in the charge of the public administrator;

(2) Depositing all moneys, checks, and other instruments for the payment of money in the bank accounts maintained by the public administrator for the deposit of such funds;

(3) Signing or counterSigning any and all checks and other instruments for the payment of moneys out of such bank accounts, in pursuance of general authorization by the public administrator to the bank in which the same are deposited, as long as such authorization remains in effect;

(4) Entering the safe deposit box of any person or decedent whose estate is in the charge of the public administrator and any safe deposit box maintained by the public administrator for the safekeeping of assets in his charge, as a deputy of the public administrator, pursuant to general authorization given by the public administrator to the bank or safe deposit company in charge of any such safe deposit box, as long as

107

such authorization as a deputy remains in effect, and withdrawing therefrom and depositing therein such assets as may be determined by the public administrator. The bank or safe deposit company shall not be charged with notice or knowledge or any limitation of authority of the authorized deputy, unless specially notified in writing thereof by the public administrator, and may allow the deputy access to the safe deposit box, in the absence of notice, to the full extent allowable to the public administrator in person. 4. The enumeration of the foregoing powers shall not operate as an exclusion of any powers not speCifically conferred. No authorized deputy shall exercise any power, other than as prescribed in this section, which shall require the exercise of a discretion enjoined by law to be exercised personally by the executor, administrator, personal representative, guardian, or conservator in charge of the estate to which the discretionary power refers.

HISTORY: L. 1988 H.B. 1371

§ 473.773. Public administrator and sureties liable for acts of deputies

The public administrator and the sureties upon his bond as public administrator and the sureties on any other bonds given specially for separate estates, shall be liable for any los~ occasioned by any wrongful, illegal or negligent act or omission of any deputy acting under such authority or by color of his authority as such deputy, to the same extent and in the .sa~e manner as if the wrongful, illegal or negligent act or omission had been committed, permitted or suffered by the public administrator personally.

HISTORY: L. 1957 p. 869 § 3

§ 473.775. Staff to be deemed county employees -­full-time staff may be provided for certain administrators

1. Any full·time staff of any public administrator's office employed on or after January 1, 2001, who is not an employee of the county for purposes of hiring, retirement, benefits and other laws applicable to county employees shall be deemed an employee after January 1, 2001. Any full-time staff of the office of the public administrator for the city of St. Louis on or after January 1, 2001, shall be considered an employee of the city of St. Louis for purposes of hiring, retirement, benefits and other laws applicable to the city of St. Louis employees. 2. Each public administrator with fifty or more cases may be provided with full·time staff paid for by the county or for St. Louis City, paid for by the city of SI. Louis.

HISTORY: L 2000 S.B. 542 § 1

§ 473.780. Independent administration, when

1. When a will admitted to probate authorizes or directs independent administration, either by specific reference to this section or by language providing that the estate be administered without adjudication, order or direction of the court, the letters testamentary shall provide that the personal representative therein named may administer the estate independently. When a will admitted to probate prohibits independent administration, expressly or by language manifesting intent that the estate be administered under court supervision, the directions of the will shall be observed. 2. When all of the heirs interested in an intestate estate or all of the devisees interested in a testate estate, or all of the heirs and devisees interested in a partially intestate estate, consent to independent administration, and the will does not prohibit it, the letters testamentary or of administration shall provide that the personal representative therein named may administer the estate independently. 3. When one or more of the heirs or devisees whose consent to independent administration is required by subsection 2 is or are under disability, and all of the other heirs or devisees whose consent is required consent to independent administration, the court may grant letters testamentary or of administration which provide that the personal representative therein named may administer the estate independently. The court shall not appoint a guardian ad litem for the purpose of consent to or consideration of an application for independent administration.

HISTORY L. 1980 S.B. 637

108

NOTES: EFFECTIVE Effective 1·1-81

NOTES APPLICABLE TO ENTIRE CHAPTER

CROSS REFERENCES: Administrators, profit on publication of notices or advertisements prohibited, RSMo 493.130,493.140

Adversary probate proceeding defined for Chap. 473, RSMo 472.140

Attachment proceeding, administrator made party, where, RSMo 521.430

Bi-state development agency, bonds of, investment in authorized, RSMo 70.377

Cattle, female, sale by estate, brucellosis vaccination law special provisions, RSMo 267.555

Declaratory jUdgment, executor or administrator may obtain as to rights, RSMo 527.040

Definition of terms and general proviSions, Chap. 472, RSMo Disclaimers of property, Chap. 469, RSMo Durable power of attomey, RSMo 404.700 to 404.735 Foreign administrator, suits by, RSMo 507.020 Mortgages, satisfaction by executor or administrator, RSMo

443.160 to 443.180 Nonprobate transfers, RSMo 461.003 to 461.081 Probate code, definitions, RSMo 472.010 Public officer, executor or administrator of to deliver records,

RSMo 109.020 to 109.040 Records of probate division, RSMo 472.280 Savings accounts in insured savings and loan associations,

investment in authorized, RSMo 369.194 T ax assessment list, executor or administrator to give assessor,

RSMo 137.350

§ 473.783. Notice of independent administration. contents

After letters testamentary or of administration authorizing independent administration of an estate are issued, the notice required by section 473.033 shall contain a paragraph in substantially the following form:

"The personal representative may administer the estate independently, without adjudication, order, or direction of the probate division of the circuit court, unless a petition for supervised administration is made to and granted by the court."

HISTORY: L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 473.787. Duties of personal representative in independent administration •• attorney required, when

1. While letters testamentary or of administration authorizing independent administration of the estate are in force, the personal representative therein named is an independent personal representative and his administration of the estate is an independent administration, and all actions taken on or after August 28, 1996, shall be in accordance with the provisions of the Missouri prudent investor act, sections 456.900 to' 456.913, RSMo. 2. An independent personal representative shall proceed expeditiously with the settlement and distribution of the estate in accordance with the applicable provisions of this chapter and, except as otherwise specified by the provisions of sections 473.780 to 473.843, shall do so without adjudication, order, or direction of the court, but he may invoke the jurisdiction of the court, in proceedings authorized by this code, to resolve questions concerning the estate or its administration or distribution. 3. Unless he is a member in good standing of the Missouri bar, an independent personal representative, because he owes a fiduciary duty to the persons interested in the estate, shall secure the advice and services of an attorney, who is not a salaried employee of the personal representative, on legal questions arising in connection with:

(1) The application for and issuance of letters testamentary or of administration;

(2) The collection, investment and preservation of assets; (3) The inventory; (4) The allowance, disallowance, compromise and payment

of claims; (5) The making of tax returns; (6) The transfer and encumbrance of property of the estate; (7) The interpretation of the will and of the intestacy laws; (8) The scheme and making of distribution; and (9) The closing of the estate.

HISTORY: L. 1980 S.B. 637, A.L. 1996 H.B. 1432

NOTES: 'Word 'through' appears in original rolls.

109

§ 473.793. Inventory of property by independent personal representative

Within thirty days after his appointment, an independent personal representative, who is not a special administrator or a successor to another representative who has previously discharged this duty, shall prepare and file in the court an inventory of property owned by the decedent at the time of his death, listing it with reasonable detail, and indicating as to each listed item, its fair market value as of the date of the decedent's death, and the type and amount of any encumbrance that may exist with reference to any item. The independent personal representative shall send a copy of the inventory to interested persons who request it.

HISTORY: L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 473.797. Independent personal representative may employ appraisers, attorney, accountant or tax specialist

1. An independent personal representative may 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. 2. An independent personal representative may employ an attorney, certified public accountant or tax specialist holding a valid permit to practice before the U. S. Treasury Department to assist him in the preparation of any estate tax return or any federal and state income tax returns and such person shall be allowed out of the estate reasonable compensation for such services. An independent personal representative may also employ independent accountants to assist him in filing 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 out of the estate reasonable compensation for such service.

HISTORY: L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 473.800. Supplementary inventory. when reguiredeocopies to interested persons

If any property of substantial value not included in the original inventory comes to the knowledge of an independent personal representative, or if the independent personal representative learns that the value or description indicated in the original inventory for any item is erroneous or misleading. he shall make a supplementary inventory or appraisement showing the market value as of the date of the decedent's death of the new item or the revised market value or descriptions. and the appraisers or other data relied upon, if any, and file it with the court. The independent personal representative shall send a copy of any supplementary inventory to interested persons at their request.

HISTORY: L 1980 S.8. 637, AL 1983 H.B. 369

110

§ 473.803. Independent personal representative's right to decedent's property·· exceptions eo duties

Except as otherwise provided by a decedent's will, every independent personal representative has a right to, and shall take possession or control of, the decedent's property, except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled thereto unless or until, in the judgment of the independent personal representative, possession of the property by him will be necessary for purposes of administration. The independent personal representative shall pay taxes on, and take all steps reasonably necessary for the management, protection, and preservation of, the estate in his possession. He may maintain an action to recover posseSSion of property or to determine the title thereto.

HISTORY L 1980 S.8. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 473.810. Powers and duties of independent personal representative

Except as restricted or otherwise provided by the will, an independent personal representative, acting reasonably for the benefit of the interested persons, may properly:

(1) Retain assets owned by the decedent pending distribution or liquidation, including those in which the representative is personally interested or which are otherwise improper for trust investment;

(2) Receive assets from fiduciaries or other sources; (3) Perform, compromise, or refuse performance of the

decedent's contracts that continue as obligations of the estate, as he may determine under the circumstances. In performing enforceable contracts by the decedent to convey or lease land, the independent personal representative, among other possible courses of action, may do either of the following:

(a) Execute and deliver a deed of conveyance for cash payment of all sums remaining due or for the purchaser's note for the sum remaining due secured by a mortgage or deed of trust on the land;

(b) Deliver a deed in escrow with directions that the proceeds, when paid in accordance with the escrow agreement, be paid to the successors of the decedent, as designated in the escrow agreement;

(4) If funds are not needed to meet debts and expenses currently payable and are not immediately distributable, deposit or invest liquid assets of the estate, including moneys received from the sale of other assets, in federally insured interest-bearing accounts, readily marketable secured loan arrangements, or other prudent investments which would be reasonable for use by trustees generally;

(5) Make ordinary repairs to buildings or other structures; (6) Vote stocks or other securities in person or by general

or limited proxy; (7) Pay calls, assessments, and other sums chargeable or

accruing against or on account of securities, unless barred by the provisions relating to claims;

(8) Hold a security in the name of a nominee, or in other form, without disclosure of the interest of the estate; but the independent personal representative is liable for any act of the nominee in connection with the security so held;

(9) Insure the assets of the estate against damage, loss, and liability, and himself against liability as to third persons;

(10) Effect a fair and reasonable compromise with any debtor or obligor, or extend, renew, or in any manner mOdify the terms of an obligation owing to the estate. If the independent personal representative holds a mortgage, pledge, or other lien upon property of another person, he may, in lieu of foreclosure, accept a conveyance or transfer of encumbered assets from the owner thereof in satisfaction of the indebtedness secured by lien;

111

(11) Pay taxes, assessments, compensation of the independent personal representative, and other expenses incident to the administration of the estate;

(12) Sell or exercise stock subscription or con version rights; consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise;

(13) Allocate items of income or expense to either estate income or principal, as permitted or provided by law;

(14) Employ persons, including attorneys, auditors, investment advisors, or agents, to advise or assist the independent personal representative in the performance of his administrative duties; act without independent investigation upon their recommendations; and instead of acting personally, employ one or more agents to perform any act of administration, whether or not discretionary; . (15~ ~rosecute or defend claims, or proceedings in any Junsdlctlon for the protection of the estate and of the independent personal representative in the performance of his duties;

(16) Sell, mortgage, or lease any real or personal property of the estate or any interest therein for cash, credit, or for part cash and part credit, and with or without security for unpaid balances;

(17) Continue any unincorporated business or venture in ~hich the dece~ent was engaged at the time of his death (a) In the same business form for a period of not more than four months from the date of appointment of a general independent personal representative, if continuation is a reasonable means of preserving the value of the business including gOO? will; (b) in the same business form for any additional penod of time that may be approved by order of the court in a proceeding to which the persons interested in the estate are parties; or (c) throughout the period of ~dministration if the business is incorporated by the Independent personal representative and if none of the probable distributees of the business who are competent adults object to its incorporation and retention in the estate;

(18) Incorporate any business or venture in which the decedent was engaged at the time of his death;

(19) Provide for exoneration of the independent personal representative from personal liability in any contract entered into on behalf of the estate'

(20) SatiSfy and settle cl~ims, and distribute the estate as provided in this code. '

HISTORY: L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

CROSS REFERENCES: Multinational banks securities and obligations of, investment in, when, RSMo 409.950

§ 473.811. Dealing in good faith for value with independent representative protectednno duty to inguire--liability of independent personal representative

1. A person who in good faith deals with an independent personal representative for value is protected as if the independent personal representative properly exercised his power. The fact that a person knowingly deals with an independent personal representative does not require the person to inquire into the existence of a power or the propriety of its exercise. 2. No conveyance or transfer by the independent personal representative to a bona fide purchaser for a valuable consideration shall be set aside on the ground that the independent personal representative was not acting reasonably for the benefit of interested persons. Interested persons may recover from the independent personal representative any damages occasioned by failure of the independent personal representative to act reasonably for the benefit of interested persons.

HISTORY: L. 1983 H.B. 369

§ 473.820. Liability of personal representative

1. Unless otherwise provided in the contract, a personal representative is not individually liable on a contract properly entered into in his fiduciary capacity in the course of administration of the estate, unless he fails to reveal his representative capacity and identify the estate in the contract. 2. A personal representative is individually liable for obligations arising from ownership or control of the estate or for torts committed in the course of administration of the estate only if he is personally at fault. 3. Claims based on contracts entered into by a personal representative in his fiduciary capacity, on obligations arising from ownership or control of the estate, or on torts committed in the course of estate administration may be asserted against the estate by proceeding against the personal representative in his fiduciary capacity, whether or not the personal representative is individually liable therefor. 4. Issues of liability as between the estate and the personal representative individually may be determined in a proceeding for accounting, surcharge or indemnification, or other appropriate proceeding.

HISTORY: L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1·1-81

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§ 473.823. Compensation of independent personal representative and attorney

1. An independent personal representative is entitled to reasonable compensation for his services. The statutory schedule of compensation prescribed in section 473.153 shall be considered a minimum fee for services rendered. An independent personal representative may renounce his right to all or any part of the compensation. A written renunciation of fee may be filed with the court. 2. If the will provides for compensation of the independent personal representative, and there is no contract with the decedent regarding compensation, he may renounce the provisions before qualifying only if he also renounces the right to administer independently under subsection 1 of section 473.780. In the event of such renunciation, the administration shall be supervised unless independent administration is authorized under subsection 2 or 3 of section 473.780. 3. An independent personal representative's attorney shall be entitled to reasonable compensation for his services, but in no event shall the compensation of the independent personal representative or his attorney be in excess of the minimum prescribed by section 473.153, without authorization by the court. The schedule contained in such section shall be prima facie evidence of the reasonableness of the fees charged.

HISTORY: L.1980S.B. 637, A.L. 1981 S.B.117, A.L.1996 S.B. 494

NOTES: EFFECTIVE Effective 5·23·96

§ 473.827. Review of compensation of independent personal representative and of employment and compensation of others, whennrefunds, when

On petition of an interested person, and after notice to all interested persons, the propriety of employment of any person by an independent personal representative, including any attorney, auditor, appraiser, investment advisor, or other specialized agent or assistant, the reasonableness of the compensation of any person so employed, or the reasonableness of the compensation determined by the independent personal representative for his own services may be reviewed by the court. Any person who has received excessive compensation from an estate for services rendered may be ordered to make appropriate refunds.

HISTORY: L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1·1-81

§ 473.830. Court may restrain personal representative, when •• petition .. hearing .. procedure

1. On petition of any person who appears to have an interest in the estate. the court, by temporary ex parte order. may restrain a personal representative from perfor~in~ . specified acts of administration. disbursement, or distribution, or from exercising any powers or discharging any duties of his office. or may make any other order to secure proper performance of his duty. if it appears to the court that ~e personal representative otherwise may take some action which would jeopardize unreasonably the interest of the applicant or of some other interested person. Persons with whom the personal representative may transact business may be made parties. 2. The matter shall be set for hearing within ten days unless the parties otherwise agree. Notice, as the court directs, shall be given to the personal representative and his attorney of record. if any. and to any other parties named defendant in the petition. 3. Procedure shall be in accordance with this code and the supreme court rule relating to injunctions.

HISTORY: L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 473.833. Revocation of independent administration, when .. petition .. hearing" orders of court

1. An independent personal representative. or any interested person. may. at any time, file a petition to revoke the provisions of letters testamentary or of administration authorizing independent administration. The petitioner shall serve a copy of such petition on each interested person at the time the petition is filed with the court. 2. Upon the filing of such petition, the court shall determine the extent of petitioner's interest in the estate and. if it shall find that such interest is more than nominal, the court shall order a hearing on the petition, directing notice thereof to be given to all interested persons. and may specify the time within which such interested persons shall file answers to such petition. If. upon motion of any interested person, the court finds that the petitioner's interest is nominal, the court may dismiss the petition. 3. The court may enter such interlocutory orders as it deems necessary to protect the assets of the estate pending a full hearing. or to determine whether or not the independent personal representative has properly administered the estate.

113

4. After hearing on the petition, the court may enter an order directing supervised administration, or the court may deny the petition conditioned upon the performance of some act by the independent personal representative, or the court may grant such other relief as the court deems appr~priate under the circumstances. If the court finds that the actions of the independent personal representative have resulted in lo.ss to the estate. the court may, in addition to ordering supervised administration, remove the personal representative and enter a judgment against him and his sureties, if any, in accordance with the provisions of section 473.207. 5. After an order reVOking authorization for independent administration has been entered, the administration of the estate shall proceed under the provisions of this chapter other than sections 473.780 to 473.843.

HISTORY: L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 473.837. Settlement of estate, when .. notice·· distribution

An independent personal representative may petition for an order of complete settlement of the estate. After notice is given pursuant to section 473.840 to all interested persons and hearing, the court may enter an order or orders, on appropriate conditions, determining the persons entitled to distribution of the estate, and, as circumstances require, approving settlement and directing or approving distribution of the estate and discharging the independent personal representative from further claim or demand of any interested person.

HISTORY: L. 1980 S.B. 637, A.L. 1982 S.B. 700 Revision

§ 473.840. Completion of administration--discharge of independent personal representative, when-­procedures--objections, time limitation, procedure

1. Unless prohibited by order of the court, an independent personal representative may complete administration and be discharged in the manner prescribed by this section after six months and ten days from the date of the first published notice of letters testamentary or of administration. 2. To complete administration and be discharged in this manner the independent personal representative shall file in the court a document called a statement of account which shall include:

(1) A statement that notice was given under sections 473.033 and 473.783 and that first publication as required by section 473.783 occurred more than six months before the filing of the statement of account;

(2) A complete accounting, omitting vouchers, of all receipts and disbursements of the probate assets by the personal representative;

(3) A statement that all claims, expenses of administration and taxes have been paid in full, or if not paid, what items have not been paid in full and why;

(4) A statement that, unless objection to the proposed distribution is filed in court within twenty days after the filing of the statement of account, the independent personal representative will distribute probate assets in accordance with a schedule of proposed distribution included in the statement of account;

(5) A schedule of proposed distribution of probate assets; and

(6) A statement that notice was given in the manner provided by subdivision (2) of subsection 2 of section 472.100, RSMo, at least twenty-nine days prior to the filing of ~he statement of account which notice stated that: (a) the Independent personal representative would file the statement of account on a date certain or as continued by the court, and (b) objections to the schedule of proposed distribution shall be filed with the court within twenty days after the filing of the statement of account. The notice shall be published once a week for four consecutive weeks, the last publication to be at least seven days prior to the date specified in the notice for filing of the statement of account. 3. Copies of the statement of account, omitting vouchers, copies of the original and any supplementary and corrected inventories and all settlements filed in the court, and a notice, shall be mailed together by ordinary mail before they are filed in the court to each interested party. The notice shall state that the statement of account will be filed in the court on a date stated in the notice. Such notice shall further state that if n~ objection is filed in the court within twenty days after the filing of the statement of account, the independent personal representative will distribute in accordance with the schedule of proposed distribution contained in the statement of

114

account. The. notice shall further state that if no proceeding is commenced In the court within six months after the filing of the statement of account, the independent personal rep~esentative is discharged from further claim or demand by an Interested party. 4. If no objection is filed within such twenty days after filing, the court shall not have any duty to audit or make inquiry into such statement of accounts, and the personal representative shall make distribution in accordance with the proposed schedule as filed. If an objection is filed within twenty days, the court shall conduct a hearing on such objections and, if necessary shall require vouchers and audit the statement of a?c~unt: and thereafter determine and order proper distribution and make an order discharging the representative. 5. Proof of the mailing of the notice and of the copies of the statement of account, inventories and settlements shall be filed in the court with the statement of account, and such proof shall be by a statement signed by the independent personal representative listing the persons to whom and addresses to which mailing was made and the date of mailing. 6. If no proceeding involving the independent personal representative is filed in the court within six months after the statement of ac.count is filed, the representative is discharged from further claim or demand by any interested party. The court sha". n~t m.ake any order of discharge. If proceedings are filed Within SIX months after ihe statement of account is filed, the liability, if any, of the representative, to interested parties, ~hall be determined by the court, and upon satisfaction of any such liability the court shall make an order discharging the representative.

HISTORY: L. 1980 S.B. 637, A.L. 1982 S.B. 700 Revision A L 1983 H.B. 369, A.L. 1996 S.B. 494 ' ..

NOTES: EFFECTIVE Effective 5-23-96

§ 473.843. Time for complete settlement or filing of statement of account -- extension

Unless the time is extended by the court, an independent personal representative shall petition for an order of complete settlement under section 473.837, or file a statement of account under section 473.840, within one year after the original appointment of an independent personal representative of the estate. If he fails to do so, the court shall, upon application of any person interested in the estate, or upon its own motion, order the personal representative to close the estate or apply for an extension of time in which to do so.

HISTORY: L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 473.844. Distribution in kind--deeds, evidentiary effect .. improper distribution, liability of distributee, exceptions

1. If distribution in kind is made, the independent personal representative shall execute an instrument or deed of distribution assigning, transferring or releasing the assets to the distributee as evidence of the title of the distributee to the property. 2. Proof that a distributee has received an instrument or deed of distribution of assets in kind, or payment in distribution, from an independent personal representative, is conclusive evidence that the distributee has succeeded to the interest of the estate in the distributed assets, as against all persons interested in the estate, except that the independent personal representative may recover the assets or their value if the distribution was improper. 3. Unless the distribution or payment no longer can be questioned because of adjudication, estoppel, or limitation, a distributee of property improperly distributed or paid, or a claimant who was improperly paid, is liable to return the property improperly received and its income since distribution if he has the property. If he does not have the property, then he is liable to return the value as of the date of disposition of the property improperly received and its income and gain received by him.

HISTORY: L. 1983 H.B. 369

115

§ 473.845. Interest of purchaser for value from, or lender to, distributee of property protected

If property distributed in kind or a security interest therein is acquired for value by a purchaser from or lender to a distributee who has received an instrument or deed of distribution from the independent personal representative, or is so acquired by a purchaser from or lender to a transferee from such distributee, the purchaser or lender takes title free of rights of any interested person in the estate and incurs no personal liability to the estate, or to any interested person, whether or not the distribution was proper or supported by court order or the authority of the independent personal representative was terminated before execution of the instrument or deed. This section protects a purchaser from or lender to a distributee who, as independent personal representative, has executed a deed of distribution to himself, as well as a purchaser from or lender to any other distributee or his transferee. To be protected under this provision, a purchaser or lender need not inquire whether an independent personal representative acted properly in making the distribution in kind, even if the independent personal representative and the distributee are the same person, or whether the authority of the independent personal representative had terminated before the distribution.

HISTORY: L. 1983 H.B. 369

CHAPTER 474 PROBATE CODE-INTESTATE SUCESSION & WILLS

§ 474.010. General rules of descent

All property as to which any decedent dies intestate shall descend and be distributed, subject to the payment of claims, as follows:

(1) The surviving spouse shall receive: (a) The entire intestate estate if there is no surviving

issue of the decedent; (b) The first twenty thousand dollars in value of the

intestate estate, plus one-half of the balance of the intestate estate, if there are surviving issue, all of whom are also issue of the surviving spouse;

(c) One-half of the intestate estate if there are surviving issue, one or more of whom are not issue of the surviving spouse;

(2) The part not distributable to the surviving spouse, or the entire intestate property, if there is no surviving spouse, shall descend and be distributed as follows:

(a) To the decedent's children, or their descendants, in equal parts;

(b) If there are no children, or their descendants, then to the decedent's father, mother, brothers and sisters or their descendants in equal parts;

(c) If there are no children, or their descendants, father, mother, brother or sister, or their descendants, then to the grandfathers, grandmothers, uncles and aunts or their descendants in equal parts;

(d) If there are no children or their descendants, father, mother, brother, sister, or their descendants, grandfather, grandmother, uncles, aunts, nor their descendants, then to the great-grandfathers, great-grandmothers, or their descendants, in equal parts; and so on, in other cases without end, passing to the nearest lineal ancestors and their children, or their descendants, in equal parts; provided, however, that collateral relatives, that is, relatives who are neither ancestors nor descendants of the decedent, may not inherit unless they are related to the decedent at least as closely as the ninth degree, the degree of kinship being computed according to the rules of the civil law; that is, by counting upward from the decedent to the nearest common ancestor, and then downward to the relative, the degree of kinship being the sum of these two counts, so that brothers are related in the second degree;

(3) If there is no surviving spouse or kindred of the decedent entitled to inherit, the whole shall go to the kindred of the predeceased spouse who, at the time of the spouse's death, was married to the decedent, in like course as if such predeceased spouse had survived the decedent and then died entitled to the property, and if there is more than one such predeceased spouse, then to go in equal shares to the kindred of each predeceased spouse;

116

(4) If no person is entitled to inherit as provided in this section the property shall escheat as provided by law.

HISTORY: RSMo 1939 § 306, A.L. 1955 p. 385 § 236, A.L. 1980 S.B. 637, A.L. 1996 S.B. 494

NOTES: PRIOR REVISIONS: 1929 § 306; 1919 § 303; 1909 § 332

EFFECTIVE Effective 5-23-96

CROSS REFERENCES: Adopted child, right to inherit, RSMo 453.090,453.170 Escheats, generally, Chap. 470, RSMo Estates of suicides to descend as in cases of natural death, Const. Art. I § 30

(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 undivided one-half interest against contention that testator indicated intent that land go to his descendants. Thomas v. Higginbotham (Mo.), 318 S.w.2d 234.

(1967) The effect of this section is to establish a legal liability against the estates of all decedents, including a deceased wife, for payment of the decedent's funeral expenses. Gibson v. Muehlebach Funeral Home, Inc. (A.), 409 S.w.2d 759.

NOTES APPLICABLE TO ENTIRE CHAPTER

CROSS REFERENCES: Adversary probate proceeding defined for Chap. 474, RSMo 472.140

Declaratory judgment as to heirs, devisees, legatees or construction of will, RSMo 527.040

Definitions of terms and general provisions of probate code, Chap 472, RSMo

Determination of heirship, RSMo 473.663 Disclaimers of property, Chap. 469, RSMo Foreign corporation not to act as testamentary trustee in this

state, RSMo 456.120 Forfeiture of inheritance in withdrawal of life support procedures

contrary to declarant's wishes, RSMo 459.045 Nonprobate transfers, RS Mo 461.003 to 461.081 Probate code, Chaps. 472, 473, 475, RSMo Testamentary trusts, accounting required, when, RSMo 456.225

§ 474.015. Failure to survive decedent by 120 hours deemed predecease of decedent --consequences

1. Any person who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent for purposes of homestead allowance, exempt property, and intestate succession, and the decedent's heirs are determined accordingly. If the time of death of the decedent, or of the person who would otherwise be an heir, or the times of death of both, cannot be determined, and it cannot be established that the person who would otherwise be an heir has survived the decedent by one hundred twenty hours, it is deemed that the person failed to survive for the required period. 2. This section is not to be applied where its application would result in a taking of intestate estate by the state under section 474.010.

HISTORY L. 1980 S.B. 637, A.L. 1981 S.B. 117

NOTES: EFFECTIVE Effective 6-10-81

§ 474.020. Lineals take per capita and per stirpes. when

When several lineal descendants, all of equal degree of consanguinity to the intestate, or his father, mother, brothers and sisters, or his grandfathers, grandmothers, uncles and aunts, or any ancestor living and their children, come into partition, they shall take per capita, that is, by persons; where a part of them are dead, and part living, and the issue oi those dead have a right to partition, such issue shall take per stirpes; that is, the share of the deceased parent.

HISTORY: RSMo 1939 § 310, A.L. 1955 p. 385 § 237

NOTES: PRIOR REVISIONS: 1929 § 310; 1919 § 307; 1909 § 336

§ 474.030. Partial intestacy

If part but not all of the estate of a decedent is validly disposed of by will, the part not disposed of by will shall be distributed as provided herein for intestate estates.

HISTORY: L. 1955 p. 385 § 238

117

§ 474.040. Col/aterals of half blood inherit. how

When the inheritance is directed to pass to the ascending and collateral kindred of the intestate, if part of the collaterals is of the whole blood of the intestate, and the other part of the half blood only, those of the half blood shall inherit only half as much as those of the whole blood; but if all collaterals are of the half blood, they shall have whole portions, only giving to the ascendants double portions.

HISTORY: RSMo 1939 § 309, A.L. 1955 p. 385 § 239

NOTES: PRIOR REVISIONS: 1929 § 309; 1919 § 306; 1909 § 335

(1956) Descendant of child who was adopted by mother of deceased after her divorce from father of deceased held entitled to inherit from deceased as nephew of half blood. Vreeland v. Vreeland (Mo.), 296 S.w.2d 55.

§ 474.050. Posthumous children to inherit

All posthumous children, or descendants, of the intestate shall inherit in like manner, as if born in the lifetime of the intestate; but no right of inheritance accrues to any person other than the children or descendants of the intestate, unless they are born and capable in law to take as heirs at the time of the intestate's death.

HISTORY RSMo 1939 § 307, A.L 1955 P 385 § 240

NOTES PRIOR REVISIONS 1929 § 307; 1919 § 304; 1909 § 333

§ 474.060. Determination of relationship of parent and child··adopted person is child of adopting parent. exception.·illegitimate child. relationship determined

1. If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person, an adopted person is the child of an adopting parent and not of the natural parents, except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and such natural parent. 2. In cases not covered by subsection 1 herein, a person born out of wedlock is a child of the mother. That person is also a child of the father. if either of the following occur:

(1) The natural parents participated in a marriage ceremony before or after the bitih of the child, even though the attempted marriage is void;

(2) The paternity is established by an adjudication before the death of the father, or is established thereafter by clear and convincing proof, except that the paternity established under this subdivision (2) is ineffective to qualify the father or his kindred to inherit from or through the child, unless the father has openly treated the child as his, and has not refused to support the child.

HISTORY: L 1980 S.B. 637, A.L. 1981 S.B 117

NOTES: EFFECTIVE Effective 6-10-81

'No continuity with § 474.060 as repealed by L 1980 S.B. 637.

(1985) Provisions of section are applicable for purposes of determining paternity in applications for social security survivor's benefits under 42 U.S.C. § 416(h)(2)(A). Greer by Greer v. Heckler (8th CiL), 756 F.2d 794.

§ 474.070. Legitimation bv marriage

If a man, having by a woman a child or children, afterward intermarries with her and recognizes the child or children to be his, they are thereby legitimated.

HISTORY: RSMo 1939 § 315, A.L 1955 p. 385 § 242

NOTES: PRIOR REVISIONS: 1929 § 315; 1919 § 312; 1909 § 341

(1967) This statute applies not only to a child born out of wedlock, but also to a child born in wedlock, but sired by a man who was not the mother's husband. The three essential elements of legitimation under this section are actual paternity, intermarriage and recognition. Simpson v. Blackburn (A.), 414 S.w.2d 795.

118

§ 474.080. Issue of void or dissolved marriage, legitimate

The issue of all marriages deemed null in law, or dissolved by divorce, are legitimate.

HISTORY: RSMo 1939 § 316, A.l. 1955 p. 385 § 243

NOTES: PRIOR REVISIONS: 1929 § 316; 1919 § 313; 1909 § 342

§ 474.090. Advancements counted against share. when··evaluation

If a person dies intestate as to all his estate, property which he gave in his lifetime to an heir is treated as an advancement against the latter's share of the estate only if declared in a contemporaneous writing by the decedent or acknowledged in writing by the heir to be an advancement. For this purpose, the property advanced is valued as of the time the heir came into possession or enjoyment of the property, or as of the time of death of the decedent, whichever occurs first. If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the intestate share to be received by the reCipient's issue, unless the declaration or acknowledgment provides otherwise.

HISTORY: L 1955 p. 385 § 244, A.L 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 474.100. Alienage no bar to descent

In making title by descent, it is no bar to a demandant that any ancestor through whom he derives his descent from the intestate is or has been an alien.

HISTORY: RSMo 1939 § 313, A.L 1955 p. 385 § 245

NOTES: PRIOR REVISIONS: 1929 § 313; 1919 § 310; 1909 § 339

CROSS REFERENCES: Alien may acquire real estate by descent or devise, RSMo 442.560

§ 474.110. Curtesy and dower abolished

The estates of curtesy and dower are hereby abolished, but any such estate now vested is not affected by this code.

HISTORY: L. 1955 p. 385 § 246

§ 474.120. Inheritance and statutory rights deemed waived, when

The rights of inheritance or any other statutory rights of a surviving spouse of a decedent who dies intestate shall be deemed to have been waived if prior to, or after, the marriage such intended spouse or spouse by a written contract did agree to waive such rights, after full disclosure of the nature and extent thereof, including the nature and extent of all property interests of the parties, and if the thing or promise given to the waiving party is a fair consideration under all the circumstances.

HISTORY: RSMo 1939 § 334, A.L. 1955 p. 385 § 247, A.L. 1963 p.655

NOTES: PRIOR REVISIONS: 1929 § 334; 1919 § 330; 1909 § 362

(1964) Where husband and wife had entered antenuptial contract by which each agreed not to share in the other's estate and waived all interest or claims of every kind and nature and all marital, statutory, and dower rights and allowances as surviving spouse, widower was barred from claiming homestead and family support allowance as well as other participation in wife's estate, except as authorized by the contract. In re Adelman's Estate (A.), 377 S.w.2d 549.

(1968) Anticipatory, preparatory, collateral, and ancillary acts performed in reliance on a verbal contract, generally are not sufficient part performance to call for an exception to the provisions of the statute of frauds; but if the verbal agreement is sufficiently established, the acts are done with the knowledge of the other party, and if the changes in circumstances resulting from such acts are of such nature that the consequences thereof are, or may be, disastrous, the court may enforce the contract, even though the acts are not, strictly speaking, in execution of the contract. Pointer v. Ward (Mo.), 429 S.w.2d 269.

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§ 474.130. Estate conveyed determines on failure of contractual bar

When any deed, conveyance, assurance, agreem~nt or contract in lieu of the inheritance or other statutory rights of a spouse, through any default, fails to be a le~~1 bar .to such rights and the surviving spouse dem~nds hiS inheritance and statutory rights, then the estate and Interest so conveyed to the surviving spouse ceases and determines.

HISTORY: RSMo 1939 § 336, A.L. 1955 p. 385 § 249

NOTES: PRIOR REVISIONS: 1929 § 336; 1919 § 332; 1909 § 364

§ 474.140. Inheritance and statutory rights barred on misconduct of spouse

If any married person voluntarily leaves his or her spouse and goes away and continues with an adulterer or abandons his spouse without reasonable cause and continues to live separate and apart from his or her spouse for one whole year next preceding his or her death, or dwells with another in a state of adultery continuously, or if any wife after being ravished consents to her ravisher, such spouse is forever barred from his or her inheritance rights, homestead allowance, exempt property or any statutory allowances from the estate of his or her spouse unless such spouse is voluntarily reconciled to him or her and resumes cohabitation with him or her.

HISTORY: RSMo 1939 § 337, A.L. 1955 p. 385 § 250, A.L. 2001 H.B.537

NOTES: PRIOR REVISIONS: 1929 § 337; 1919 § 333; 1909 § 365

(1963) Wife was barred from statutory rights and allowances in deceased husband's estate on the ground that she had abandoned him for more than one year, and husband's filing of cross petition in wife's divorce action which was not concluded before husband's death held not to constitute acquiescence in such abandonment. Heil v. Shriner's Hospital for Crippled Children (A.), 365 S.w.2d 736.

(1967) A claimant may qualify as a 'widow' within the purview of this section only if she has been reduced to that condition by the ordinary and usual vicissitudes of life and not by a felonious act committed by her which created that condition. In re Estate of Laspy (A.), 409 S.W.2d 725.

§ 474.150. Gifts in fraud of marital rights" presumptions on conveyances

1. Any gift made by a person, whether dying testate or intestate, in fraud of the marital rights of his surviving spouse to share in his estate, shall, at the election of the surviving spouse, be treated as a testamentary disposition and may be recovered from the donee and persons taking from him without adequate consideration and applied to the payment of the spouse's share, as in case of his election to take against the will. 2. Any conveyance of real estate made by a married person at any time without the joinder or other written express assent of his spouse, made at any time, duly acknowledged, is deemed to be in fraud of the marital rights of his spouse, if the spouse becomes a surviving spouse, unless the contrary is shown. 3. Any conveyance of the property of the spouse of a disabled person is deemed not to be in fraud of the marital rights of the disabled person if the probate division of the circuit court alJthorizes the conservator of the disabled person to join in or assent to the conveyance after finding that it is not made in fraud of the marital rights. Any conveyance of the property of a minor or disabled person made by a conservator pursuant to an order of court is deemed not to be in fraud of the marital rights of the spouse of the protectee.

HISTORY: L. 1955 p. 385 § 251, A.L. 1957 p. 829, AL 1959 S.B. 141, A.L. 1983 S.B. 44 & 45

NOTES CROSS REFERENCES: Conveyance of estate by entireties by guardian of minor or incompetent, RSMo 442.035

(1974) Held that a bank account set up as a jOint tenancy between now deceased husband and his sister where all funds were contributed by husband constitutes fraud of the marital rights under this section. Nelson v. Nelson (A.), 512 SW.2d 455.

(1976) Held, that facts in this case were sufficient to indicate fraud. Two important elements were failure of transferees to provide any part of the purchase price of the property received by them and the control retained by the transferor. Matter of the Estate of LaGrace (A.), 532 SW.2d 511.

§ 474.155. Contract to make will or devise, revoke or not revoke will or devise, or to die intestate, how established

A contract to make a will or devise, to revoke or not to revoke a will or devise, or to die intestate, if executed after January 1, 1981, can be established only by

(1) Provisions of a will stating material provisions of the contract;

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(2) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or

(3) A writing signed by the decedent evidencing the contract. The execution of a jOint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

HISTORY: L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

(1998) By its terms, statute applies only to contracts executed after January 1, 1981. Nolte v. Wittmaier, 977 SW.2d 52 (E.D.Mo.).

§ 474.160. Election by surviving spouse to take against Will, effect

1. When a married person dies testate as to any part of his estate, a right of election is given to the surviving spouse solely under the limitations and conditions herein stated:

(1) The surviving spouse, upon election to take against the Will, shall receive in addition to exempt property and the allowance under section 474.260 one-half of the estate, subject to the payment of claims, if there are no lineal descendants of the testator; or, if there are lineal descendants of the testator, the surviving spouse shall receive one-third of the estate subject to the payment of claims;

(2) When a surviving spouse elects to take against the will he shall be deemed to take by descent, as a modified share, such part of the estate as comes to him under the provisions of this section, and shall take nothing under the will;

(3) Whenever there is an effective election to take against a will which provides for benefits to accrue upon the death of the surviving spouse, the election has the same effect as to the benefits as if the surviving spouse had predeceased the testator, unless the will otherwise provides. 2. The rights of the surviving spouse under this section are not given in lieu of the homestead allowance under section 474.290, but any homestead allowance made to the surviving spouse shall be offset against the share taken under this section.

HISTORY: L. 1955 p. 385 § 252, A.L. 1957 p. 829

(1984) In determining how the surviving spouse's election to take against the will affects the distribution of the rest of the estate when the testator has not specified what is to happen, the court held that the legislature did not intend for the abatement statute to apply to an election to take against the will. Wilkinson v. Brune (Mo. App.), 682 SW.2d 107.

§ 474.163. Valuation of estate, how determined

1. For the purposes of section 474.160, the estate consists of all money and property owned by the decedent at his death. reduced by funeral and administration expenses, exempt property, family allowance and enforceable claims, and increased by the aggregate value of all money and property derived by the surviving spouse from the decedent by any means other than testate or intestate succession, exempt property or family allowance without a full consideration in money or money's worth. The aggregate value of money and property so derived by the surviving spouse from the decedent shall be offset against the elective share given by section 474.160. 2. Property derived from the decedent includes, but is not limited to:

(1) Any beneficial interest of the surviving spouse in a trust created by the decedent during his lifetime;

(2) Any property appointed to the spouse by the decedent's exercise of a general or special power of appointment also exercisable in favor of persons other than the spouse;

(3) Any proceeds of insurance, including accidental death benefits, on the life of the decedent attributable to premiums paid by him;

(4) Any lump sum immediately payable, and the commuted value of the proceeds of annuity contracts under which the decedent was the primary annuitant, attributable to premiums paid by him;

(5) The commuted value of amounts payable after the decedent's death under any public or private pension, disability compensation, death benefit or retirement plan, exclusive of the Federal Social Security system, by reason of service performed or disabilities incurred by the decedent; and

(6) The value of the share of the surviving spouse resulting from rights in community property in any other state formerly owned with the decedent.

Premiums paid by the decedent's employer, his partner, a partnership of which he was a member, or his creditors, are deemed to have been paid by the decedent. 3. When immediately before the decedent's death the surviving spouse was a cotenant or remainderman with respect to money, property, a trust fund or an account in a bank or other financial institution and, incident to such death, the surviving spouse became the sole owner thereof or the owner of a life interest therein, the whole value of such sole ownership or life interest shall be deemed to have been received from the decedent, except as to the proportion of such value, if any, derived from contributions toward the acquisition, establishment or creation of the money, property, fund or account made by the surviving spouse or ascendant or collateral blood relatives of the surviving spouse, other than the decedent.

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4. Property owned by the surviving spouse at the decedent's death is valued as of the date of death. Property transferred by the spouse is valued at the time the transfer became irrevocable, or at the decedent's death, whichever occurred first. Income earned by included property prior to the decedent's death is not treated as property derived from the decedent. 5. Property owned by the surviving spouse as of the decedent's death, or previously transferred by the surviving spouse, is presumed to have been derived from the decedent. except to the extent that the surviving spouse establishes that it was derived from another source. 6. If it appears that the elective share given by section 474.160, as computed in accordance with this section, will be less advantageous to the surviving spouse than the provision made for that spouse by the will, the surviving spouse may rescind the election to take against the will. 7. Nothing in this section shall be deemed to require the surviving spouse to refund to the estate money or property derived from the decedent or its value.

HISTORY: L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

(1986) The property which passes to a spouse upon decedent's death is to be deemed received from decedent except as to proportion of such value, if any, which was derived from 'contributions' toward acquisition, establishment or creation of property made by the surviving spouse. 'Contribution' means contribution in money or money's worth. Estate of Leve v. Leve, (A.), 704 SW.2d 263.

§ 474.170. Notice of right to elect

The clerk of the court, after the will of a married person is admitted to probate. shall, within one month thereafter, mail by ordinary mail a written notice, directed to the testator's surviving spouse at his last known residence address informing him that a written election must be filed by ~r on behalf of the surviving spouse in order to take against the will, within ten days after the expiration of the time limited for contesting the will of .the decedent, unless the time is extended pursuant to law. Failure of the clerk to mail or of any surviving spouse to receive the notice herein required does not affect the time for making an election as prescribed by section 474.180. If the court is informed that a surviving spouse has been adjudicated a disabled or incapacitated person but has no guardian or conservator the notice need not be given but the court may appoint a guardian ad litem to make the election.

HISTORY: L. 1955 p. 385 § 253, A.L. 1957 p. 829, A.L. 1983 S.B. 44 & 45

§ 474.180. Time for making of election

The election by a surviving spouse to take the share herein provided may be made at any time within ten days after the expiration of the time limited for contesting the will of decedent, except that if, at the expiration of the period for making the election, litigation is pending to test the validity or to determine the effect or construction of the wHI, or to determine the existence of issue surviving the decedent, or to determine any other matter of law or fact which would affect the amount of the share to be received by the surviving spouse, the right of the surviving spouse to make an election shalf not be barred until the expiration of ninety days after the final determination of the litigation.

HISTORY: L. 1955 p. 385 § 254, A.L. 1957 p. 829

§ 474.190. Form of election, filing

The election to take the share hereinbefore provided shall be in writing, signed and acknowledged by the surviving spouse or by the guardian ad litem or conservator of his estate and shall be filed in the office of the clerk of the court. It may be in the following form:

I, A. B., surviving wife (or husband) of C. D., late of the cou ntyof

.......... and state of ........... do hereby elect to take my legal s hare in

the estate of the said C. D., and do hereby renounce all provi sions in the

will of the said C. D. inconsistent herewith. Signed,(Acknowledgment) (Signature)

HISTORY: L. 1955 p. 385 § 255, A.L. 1983 S.B. 44 & 45

§ 474.200. Right of election personal to surviving spouse

The right of election of the surviving spouse is personal to him. It is not transferable and cannot be exercised after his death; but if the surviving spouse is disabled or a minor, his guardian ad litem or conservator may elect for him with the approval of the court or, on application of an interested person, the court may order his guardian ad litem or conservator to elect for him.

HISTORY: L. 1955 p. 385 § 256, A.L. 1957 p. 829, A.L. 1983 S.B. 44 &45

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§ 474.220. Waiver of right to elect

The right of election of a surviving spouse hereinbefore given may be waived before or after marriage by a written contract, agreement or waiver signed by the party waiving the right of election, after full disclosure of the nature and extent of the right, if the thing or the promise given to the waiving party is a fair consideration under all the circumstances. This written contract, agreement or waiver may be filed in the same manner as hereinbefore provided for the filing of an election.

HISTORY: L. 1955 p. 385 § 258

(1964) Section 474.220 exclusively controls a will case and section 474.120 applies only to an intestate estate. In re Adelman's Estate (A.), 377 S.w.2d 549.

(1964) Surviving widower who had entered into antenuptial contract with wife and received fair consideration therefor and where there had been full disclosure, could not elect to take against wife's will. In re Adelman's Estate (A.), 377 S.w.2d 549.

§ 474.230. Effect of failure to elect to take against will

When a surviving spouse makes no election to take against the will, he shall receive the benefit of all provisions in his favor in the will, if any, and shall share as heir, in accordance with the provisions of sections 474.010 to 474.030, in any estate undisposed of by the will. By taking under the will or consenting thereto, he does not thereby waive his right to a homestead allowance, to exempt property or to an allowance under section 474.260 unless it clearly appears from the will that the provision therein made for him was intended to be in lieu of such rights or any of them.

HISTORY: L. 1955 p. 385 § 259

(1961) Where will gave to the surviving spouse such part of his estate as under the laws of the state his wife would be entitled, she would receive such part under the will notwithstanding that the parties had entered into a property settlement the day before the decedent died contemplating a divorce between them. Crist v. Nesbit (A.), 352 S.w.2d 53.

§ 474.235. Share of omitted spouse

1. If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received if the decedent left no will, unless it appears from the will that the omission was intentional or that the testator provided for the spouse by transfer outside the will, and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator, the amount of the transfer or other evidence. 2. In satisfying a share provided by this section, the devises made by the will abate as provided in section 473.620, RSMo.

HISTORY L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

(1984) Surviving spouse was testator's sister-in-law at time will was executed and was provided for only as member of class including in-laws. Was held to be an omitted spouse. Estate of Groeper v. Groeper (Mo.App.) 665 S.w.2d 367.

§ 474.240. Share of omitted children, how determined

1. If a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the omitted child receives a share in the estate equal in value to that which he would have received if the testator had died intestate, unless:

(1) It appears from the will that the omission was intentional;

(2) When the will was executed the testator had one or more children and devised substantially all his estate to the other parent of the omitted child; or

(3) The testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator, the amount of the transfer or other evidence. 2. If at the time of execution of the will the testator fails to provide in his will for a living child solely because he believes the child to be dead, the child receives a share in the estate equal in value to that which he would have received if the testator had died intestate. 3. An illegitimate child is not a child of a male testator, for the purposes of this section, unless the testator, during his lifetime or in the will, recognized that the child was his. 4. In satisfying a share provided in this section, the devises made by the will abate as provided in section 473.620, RSMo.

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HISTORY: L. 1955 p. 385 § 260, A.L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

(1989) Child omitted from parent's will is not entitled to inherit unless he is born or adopted after the execution of the will. Statute does not require that child be 'recognized' as such by parent or that the child be legitimate. Moyer v. Walker, 771 S.w.2d 363 (Mo.App.).

§ 474.250. Exempt property of surviving spouse or minor children

The surviving spouse, or unmarried minor children of a decedent are entitled absolutely to the following property of the estate without regard to its value: The family bible and other books, one automobile or other passenger motor vehicle, including a pickup truck, with its means of propulsion, all wearing apparel of the family, all household electrical appliances, all household musical and other amusement instruments and all household and kitchen furniture, appliances, utensils and implements. Such property shall belong to the surviving spouse, if any, otherwise to the unmarried minor children in equal shares.

HISTORY: RSMo 1939 § 106, A.L. 1955 p. 385 § 134, A.L. 1957 p. 829, A.L. 1980 S.B. 637, A.L. 1996 S.B. 494

NOTES: EFFECTIVE Effective 5-23-96

NOTES APPLICABLE TO ENTIRE CHAPTER

CROSS REFERENCES: Adversary probate proceeding defined for Chap. 474, RSMo 472.140

Declaratory judgment as to heirs, devisees, legatees or construction of will, RSMo 527.040

Definitions of terms and general provisions of probate code, Chap. 472, RSMo

Detenmination of heirship, RSMo 473.663 Disclaimers of property. Chap. 469, RSMo Foreign corporation not to act as testamentary trustee in this

state, RSM0456.120 Forfeiture of inheritance in withdrawal of life support procedures

contrary to declarant's wishes, RSMo 459.045 Nonprobate transfers, RSMo 461.003 to 461.081 Probate code, Chaps. 472, 473, 475, RSMo Testamentary trusts, accounting required, when, RSMo 456.225

§ 474.260. One year support allowance, property in lieu thereof··allowance exempt from all claims

1. In addition to the right to homestead allowance and exempt property, the decedent's surviving spouse and minor children whom the decedent was obligated to support and the children who were in fact being supported by the decedent are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance may not continue for longer than one year. The allowance may be paid as a Jump sum or in periodic installments. It is payable to the surviving spouse, if living, for the use of the surviving spouse and minor or dependent children; otherwise to the children, or person having their care and custody, but if a minor or dependent child is not living with the surviving spouse, the allowance may be made partially to the child or the child's guardian or other person having the child's care and custody, and partially to the spouse, as their needs may appear. In setting the amount of the support allowance for any persons entitled to such support. the court may consider the previous standard of living of the applicant, the condition of the estate, the income and other assets available to the applicant and the applicant's expenses. The support allowance is not chargeable against any benefit or share passing to the surviving spouse or children by the will of the decedent. unless otherwise provided, by intestate succession or by way of elective share. The death of any person entitled to a family allowance terminates the right to allowances not yet paid. 2. The court may authorize the recipient of the support allowance to receive any property of the estate in lieu of all or part of the money allowance authorized by this section, and in any case where the court makes an allowance in money, the recipient of the support allowance may select and receive any property of the estate, of a value not exceeding the allowance in money, which shall be in lieu of and which value shall be credited against the allowance. The right of selection provided for in this section is subject to the provisions of section 473.620, RSMo. The allowance authorized by this section is exempt from all claims. 3. Where real estate is selected pursuant to this section, the provisions of subsections 2, 3, 4, 5 and 6 of section 474.290 shall be followed.

HISTORY: RSMo 1939 § 106, A.L. 1955 p. 385 § 135, A.L. 1957 p. 829. A.L. 1965 p. 637, A.L. 1967 p. 645. AL. 1971 S.B. 85, AL 1980 S.B 637. AL 1996 S.B 494

NOTES PRIOR REVISIONS: 1929 § § 106. 107; 1919 § § 105, 106; 1909 §§114,115

EFFECTIVE Effective 5·23·96

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§ 474.270. Exempt property applied for, when

The surviving spouse or other custodian of unmarried minor children shall apply for the property named in section 474.250 before the same is distributed or sold, but the property so delivered shall in no case be liable for the payment of the claims against the estate.

HISTORY: RSMo 1939 § 108, AL 1955 p. 385 § 136, AL. 1957 p.829

NOTES: PRIOR REVISIONS: 1929 § 109; 1919 § 108; 1909 § 117

§ 474.280. Proceeds of sale of exempt property paid over, when

If the surviving spouse or unmarried minor children do not receive the property allowed him or them under section 474.250 and the same is sold by the executor or administrator, the court shall order the money to be paid to the surviving spouse or unmarried minor children at any time before the same is paid out for claims or distributed.

HISTORY: RSMo 1939 § 109, AL. 1955 p. 385 § 137. AL. 1957 p.829

NOTES: PRIOR REVISIONS: 1929 § 110; 1919 § 109; 1909 § 118

§ 474.290. Homestead allowance·· partition of real estate selected, procedure •• waiver

1. At any time after the return of the inventory, the court, on application of the surviving spouse or of the guardian, conservator, or person having custody of the persons of the unmarried minor children of a decedent, shall make an allowance to the surviving spouse or unmarried minor children of an amount not exceeding fifty percent of the value of the estate, exclusive of exempt property, and the allowance made under section 474.260, but in no case shall the allowance exceed fifteen thousand dollars. Such allowance shall be known as a homestead allowance and is in addition to the exempt property and the allowance to the surviving spouse and unmarried minor children under section 474.260. The homestead allowance is exempt from all claims against the estate. The homestead allowance shall be offset against the share to which the surviving spouse or any minor child who receives it is entitled as a distributee of the estate, but the allowance shall not be diminished if it is greater than the distributive share. The allowance may consist, in whole or in part, of money or property, real or personal, and subject to the provisions of section 473.620, RSMo, property may be selected as provided in this section. The homestead allowance is the property of the surviving spouse, if any; but if there is no surviving spouse or if the surviving spouse dies before receiving the homestead allowance, then it is the property of the unmarried minor children in equal shares. When a decedent is survived by married minor children or children of full age, or both, and also by unmarried minor children but no spouse, the homestead allowance as determined under the foregOing provisions of this section shall be divided by the total number of all of the children of the decedent and the shares of the unmarried minor children as S? ~etermined shall, notwithstanding the foregoing prOVISions, constitute the homestead allowance. The ~election of property shall be made by the surviving spouse, If any, otherwise by the guardian or conservator of each unmarried minor child for such child, or by a person designated by the court, but no real estate may be selected or included in any homestead allowance unless selection of the speCific real estate is requested in the application filed within the time provided by subsection 7 of this section. 2. If real estate is included in the homestead allowance, the personal representative shall convey the same as determined by this section by deed to the person entitled thereto. 3. If a surviving spouse selects, as a homestead allowance, an interest in property having a value in excess of the homestead allowance, the court shall order the personal representative to convey the property to the surviving spouse upon the payment to the estate by such spouse of an amount of money equal to the difference between the value of the property and the homestead allowance or it shall order the

125

personal representative to convey an undivided interest in the property to the surviving spouse which is equivalent to the ratio which the homestead allowance bears to the value of the property, at the option of the spouse. 4. If the court finds that real estate selected by the surviving spouse is a part of a larger tract and that the real estate selected may be separated from the residue of the larger tract without great prejudice to the owners, the court may proceed to set off to the surviving spouse the real estate constituting the homestead allowance in the same manner as provided by sections 528.200 to 528.240, RSMo, for the partition of real estate, and this portion so set off shall be conveyed by the personal representative, by deed, to the surviving spouse. 5. In all proceedings under this section the court may order such appraisals of the property selected as it deems necessary and it shall determine the value of the property after due notice to all interested parties in the manner as ordered by the court pursuant to section 472.100, RSMo, and hearing pursuant thereto. 6. If within five days after the court's determination of the value of the property any interested party files written exception to the court's determination and avers in the exception that the amount so determined is excessive or inadequate and if the court finds that a sale of the property would be in the best interests of the estate, then the court, in lieu of the procedures provided in subsections 1 and 2, may order a public sale of such property in the manner provided by sections 473.507 and 473.510, RSMo. Upon such sale, if the surviving spouse is the high bidder, the amount of the homestead allowance shall be credited against the purchase price. Within ten days after such sale a report of the sale shall be filed and upon approval of the report by the court, the. personal representative shall execute, acknowledge and deliver a conveyance to the purchaser according to the order of approval which in form and substance shall be the same as that provided for in subsection 2 of section 473.520, RSMo, omitting any reference to certificate of appraisement. 7. If no application for the setting apart and allowance aut~ori~ed in this section is filed within ten days after expiration of the time allowed for filing of claims, the homestead allowance is deemed waived by the surviving spouse or the unmarried minor children and the spouse or the unmarried minor children have no right to homestead or homestead allowance under any law of this state. 8. The allowance made under this section is in lieu of all dower and homestead rights in the property of a decedent. After January 1, 1956, no right of homestead under sections 513.~95* a~d 513.500*, RSMo, vests in the surviving spouse or minor children of any decedent, but neither this section nor the repeal of sections 513.495* and 513.500*, RSMo, affects homestead rights heretofore vested in any surviving spouse or minor children.

HISTORY: L. 1955 p. 385 § 138, A.L. 1957 p. 829, A.L. 1961 p. 653, A.L. 1978 H.B. 1634, A.L. 1983 S.B 44 & 45, A.L. 1996 S.B. 494

NOTES: EFFECTIVE Effective 5-23-96

'Sections "513.495 and 513.500" were both repealed by L. 1957 p. 292 § 1.

(1960) Where widow selected the only asset in the estate oonsisting of real estate of a value of twice the amount of the homestead allowance, she was entitled to a conveyance of an appropriate interest in the real estate but not to a fee simple conveyance subject to lien for the difference in value. In re Estate of Walton (Mo.), 330 S.w.2d 834.

(1960) Where widow selected an interest in specific real estate as her homestead allowance and an undivided interest therein was oonveyed to her, such interest was subject to partition. Wyatt v. Bauer (A.), 332 S.w.2d 301.

§ 474.293. Provision of family allowance by independent personal representative ··limitations •• relief by court

An independent personal representative may, without court direction, authorization or approval, make any determination, finding, authorization, allowance, conveyance, payment. partition or delivery, or do any other act which the court could direct, authorize, make or do under sections 474.250, 474.260,474.280 and 474.290, except that he may not. without court authorization, set the family allowance at more than a lump sum of six thousand dollars or periodic installments in excess of five hundred dollars per month for one year. The independent personal representative, or any person aggrieved by any determination, finding, authorization, allowance, conveyance, payment, partition, delivery or other act, or by failure to act, under this section, may petition the court for appropriate relief, which relief may provide a family allowance larger or smaller than that which the independent personal representative determined or could have determined.

HISTORY: L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 474.300. Effect of death of spouse or child or marriage of minor on family and homestead allowances

Death of a surviving spouse within the one year period for which the allowance is provided under section 474.260, for his maintenance, shall not affect the right of the surviving spouse to the allowance or the ordering thereof by the court. If an unmarried minor child dies, marries or comes of age, no allowance shall be made under section 474.260 for his maintenance for any period after such death. marriage or

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coming of age. When a surviving spouse dies without having received the homestead allowance. it may be paid or may be allowed to the unmarried minor children. If an unmarried minor child entitled to homestead allowance dies, marries or comes of age before his homestead allowance has been made. and within the time for applying for it. he shall not be entitled to the allowance, but if he dies, marries or comes of age after it has been allowed but before it was paid. he shall be entitled to it.

HISTORY: L. 1955 p. 385 § 138A, A.L. 1965 p. 637

(1960) Where surviving spouse died without applying for homestead allowance. her estate was not entitled to such allowance although its application was timely made. Schubel v. Bonacker (Mo.). 331 S.w.2d 552.

§ 474.310. Who may make will

Any person of sound mind. eighteen years of age or older or any minor emancipated by adjudication, marriage or entry into active military duty into the military may by last will devise his or her real or personal property and may also devise the whole or any part of his or her body to any college. university. licensed hospital or to the state anatomical board for use in the manner expressly provided by his or her will or otherwise.

HISTORY: L. 1955 p. 385 § 261, A.L 1999 H.B. 136 and S.B. 271

NOTES APPLICABLE TO ENTIRE CHAPTER

CROSS REFERENCES: Adversary probate proceeding defined for Chap. 474, RSMo 472.140

Declaratory judgment as to heirs, devisees, legatees or construction of will, RSMo 527.040

Definitions of terms and general provisions of probate code, Chap. 472. RSMo

Determination of heirship, RSMo 473.663 Disclaimers of property, Chap. 469, RSMo Foreign corporation not to act as testamentary trustee in this

state. RSM0456.120 Forfeiture of inheritance in withdrawal of life support procedures

contrary to declarant's wishes, RSMo 459.045 Nonprobate transfers, RSMo 461.003 to 461.081 Probate code, Chaps. 472. 473. 475, RSMo Testamentary trusts, accounting required, when. RSMo 456.225

§ 474.320. Will form, execution, attestation

Every will shall be in writing, signed by the testator, or by some person, by his direction, in his presence; and shall be attested by two or more competent witnesses subscribing their names to the will in the presence of the testator.

HISTORY: RSMo 1939 § 520, A.L. 1955 p. 385 § 262

NOTES: PRIOR REVISIONS: 1929 § 519; 1919 § 507; 1909 § 537

(1974) Subsequent to execution and attestation of will testator wrote 'nine' over word 'ten' and wrote '9' over figure '10' and marked through and circled name of one of the distributees of the remaining nine-tenths of his estate intending to eliminate such person as a distributee. Court held that effect of alterations would be to increase portions of other distributees as well as to revoke share of the distributee whose name was stricken and that such changes constituted a new and distinct testamentary disposition which, since not attested, were not legally effective and, applying doctrine of dependent relative revocation, no revocation was had and will remained in effect as originally written. Oliver v. Union National Bank of Springfield (A.), 504 SW.2d 647.

(1974) Held that unwitnessed interlinear alterations in a will indicated testator's intent to cancel entire document. Watson v. Landvatter (Mo.), 517 S.w.2d 117.

(1974) An agreement to transfer an insurance business on the death of current owner held not to constitute a testamentary disposition. Hunt v. Dallmeyer (A.). 517 S.w.2d 720.

§ 474.330. Who may witness willueffect of interest in will

1. Any person competent to be a witness generally in this state may act as attesting witness to a will. 2. No will is invalidated because attested by an interested witness; but any interested witness shall, unless the will is also attested by two disinterested witnesses, forfeit so much of the provisions therein made for him as in the aggregate exceeds in value, as of the date of the testator's death, what he would have received had the testator died intestate. 3. No attesting witness is interested by reason of being a creditor of the estate or because he is named executor in the will or unless the will gives to him some personal and beneficial interest.

HISTORY: L. 1955 p. 385 § 278

(1954) Executor of will is competent as a witness to sustain will in will contest action and is not disqualified under the dead man's statute. Reidinger v. Adams (Mo.), 266 S.w.2d 610.

(1954) Beneficiary under will may testify as to handwriting of deceased on letters and envelopes which are used as exhibits in will contest. Reidinger v. Adams (Mo.), 266 S.w.2d 610.

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§ 474.333. Will may provide for disposal of personal property by separate list

A will may refer to a written statement or list to dispose of items of tangible personal property not otherwise speCifically disposed of by the will, other than money, evidences of indebtedness, documents of title, securities and property used in trade or business. To be admissible under this section as evidence of the intended disposition, the writing must either be in the handwriting of the testator or be signed by the testator, must be dated and must describe the items and the devisees with reasonable certainty. The writing may:

(1) Be referred to as one to be in existence at the time of the testator's death;

(2) Be prepared before or after the execution of the will; (3) Be altered by the testator after its preparation; and (4) Be a writing which has no Significance apart from its

effect upon the dispositions made by the will.

HISTORY: L. 1980 S.B. 637, A.L. 1996 S.B. 494

NOTES: EFFECTIVE Effective 5-23-96

§ 474.337. Written will self.proved! how

1. A written will may at the time of its execution! or at any subsequent date, be made self-proved, by the acknowledgment thereof by the testator and the witnesses, each made before an officer authorized to administer oaths under the laws of this state, and evidenced by the officer's certificate, under official seal, attached or annexed to the will in form and content substantially as follows:

THE STATE OF .................... .. COUNTY OF ........................ . I, the undersigned, an officer authorized to administer oaths, certify thal.. ............. , the testator, and the witnesses, whose names are signed to the attached or foregoing instrument, having appeared together before me and having been first duly sworn, each then declared to me that the testator signed and executed the instrument as his last will, and that he had willingly signed or willingly directed another to sign for him, and that he executed it as his free and voluntary act for the purposes therein expressed; and th

at each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of his knowledge the testator was at that time eighteen or more years of age, of sound mind, and under no constraint or undue infiuence. In witness whereof I have hereunto subscribed my name and affixed my official seal this ............... day of ........... , 19 .. . (Signed) .................. . (SEAL) .................. ..

(Official capacity of officer) 2. An officer authorized to administer oaths under the laws of this state, who has no official seal, including a commissioner of deeds acting under section 486.130, RSMo, and a judge advocate or other commissioned officer of the armed forces acting under Article 136 of the Uniform Code of Military Justice (United States Code, Title 10, Section 936), whether or not on active duty, section 492.070, RSMo, or an equivalent court rule, may, in lieu of affixing an official seal to his certificate, include in it a statement that he has no official seal and reciting the facts which establish his authority. Such a statement has the same effect as an official sea/.

HISTORY: L. 1980 S.B. 637, A.L.1981 S.B. 117, AL 1991 S.B. 358

NOTES: EFFECTIVE Effective 6·12-91

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§ 474.340. Nuncupative wills

1. A nuncupative will may be made only by a person in imminent peril of death, whether from illness or otherwise, and shall be valid only if the testator died as a result of the impending peril, and must be:

(1) Declared to be his will by the testator before two disinterested witnesses;

(2) Reduced to writing by or under the direction of one of the witnesses within thirty days after such declaration; and

(3) Submitted for probate within six months after the death of the testator. 2. The nuncupative will may dispose of personal property only and to an aggregate value not exceeding five hundred dollars. 3. A nuncupative will neither revokes nor changes an existing written will.

HISTORY: L. 1955 p. 385 § 263

§ 474.350. Revocation of nuncupative will

A nuncupative will or any part thereof can be revoked by another nuncupative will.

HISTORY: L. 1955 p. 385 § 264

§ 474.360. Written will valid if executed in compliance with law

A written will is valid if executed in compliance with:

(1) The laws of this state;

(2) The laws, as of the time of execution, of the place where the will is executed; or

(3) The laws of the place where, at the time of execution or the time of the testator's death, the testator is domiciled, has a place of abode or is a national.

HISTORY: L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1·1-81

'No continuity with § 474.360 as repealed by L. 1980 S.B. 637.

§ 474.370. Foreign wills, recorded when, evidence

Authenticated copies of wills, probated in another state, and the probate thereof, shall be recorded in the same manner as wills executed and proved in this state, and shall be admitted in evidence in the same manner and with like effect.

HISTORY: RSMo 1939 § 552, A.L. 1955 p. 385 § 266

NOTES: PRIOR REVISIONS: 1929 § 551; 1919 § 539; 1909 § 568

§ 474.380. Probate of foreign wills

Any will admitted to probate in any state, territory or district of the United States, together with the order admitting the same to probate therein, authenticated according to act of congress, shall be admitted to probate in this state in any county where real estate is affected thereby, or filed in the office of the recorder of deeds in such county. All wills so authenticated, admitted to probate in any county, or filed for record in any recorder's office, give notice thereof, and they, or certified copies thereof, shall be admitted as evidence in all courts in this state. When any will is admitted to probate in this state under this section a certified copy thereof, under official seal, made by the judge or clerk, or, in case the same is filed in the office of the recorder of deeds, a copy of the record thereof, and order admitting it to probate, duly authenticated, may be filed in any other county in this state where real estate is thereby affected, with like effect as if originally filed therein.

HISTORY: RSMo 1939 § 553, A.L. 1955 p. 385 § 267

NOTES: PRIOR REVISIONS: 1929 § 552; 1919 § 540

§ 474.382. Wills and trusts, English translation required, costs

All wills and estates shall have an official English translation to ensure the accurate execution of such documents. If no such translation is provided at the time of probate, the court with jurisdiction shall make such arrangements as necessary to create an English translation. The reasonable costs associated with document translation shall be reimbursed from the estate or trust or both, as provided in the trust agreement. testamentary document, or as allocated by the court.

HISTORY: L. 1998 S.B. 583 & 645 § 5

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§ 474.390. Contest of foreign will

Any will admitted to probate or recorded under section 474.380 thereafter may be contested and annulled. within the same time, and in the same manner, as wills executed and proved in this state.

HISTORY: RSMo 1939 § 554, A.L. 1955 p. 385 § 268

NOTES: PRIOR REVISIONS: 1929 § 553; 1919 § 541; 1909 § 569

§ 474.400. Revocation of wills

No will in writing, except in the cases herein mentioned, nor any part thereof, shall be revoked, except by a subsequent will in writing, or by burning, canceling, tearing or obliterating the same, by the testator, or in his presence, and by his consent and direction.

HISTORY: RSMo 1939 § 521, A.L. 1955 p. 385 § 269

NOTES: PRIOR REVISIONS: 1929 § 520; 1919 § 508; 1909 § 538

(1961) In proceeding to contest will on ground proposed will had been revoked by later will, the burden was on the contestants to show execution of later will and that it either expressly revoked the proposed will or that its provisions were so inconsistent with the prior will as to revoke the former will by implication Yates v. Jeans (A.), 345 S.w.2d 657.

(1974) Subsequent to execution and attestation of will testator wrote 'nine' over word 'ten' and wrote '9' over figure '10' and marked through and circled name of one of the distributees of the remaining nine-tenths of his estate intending to eliminate such person as a distributee. Court held that effect of alterations would be to increase portions of other distributees as well as to revoke share of the distributee whose name was stricken and that such changes constituted a new and distinct testamentary disposition which, since not attested, were not legally effective and, applying doctrine of dependent relative revocation, no revocation was had and will remained in effect as originally written. Oliver v. Union National Bank of Springfield (A.), 504 S.w.2d 647.

§ 474.410. Revocation of subsequent will also revokes first wi/l··exception

1. If a second will, which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by acts under section 474.400, the first will is revoked in whole or in part, unless it is evident from the circumstances of the revocation of the second will or from testator's contemporary or subsequent declarations that he intended the first will to take effect as executed. 2. If a second will, which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by a third will, the first will is revoked in whole or in part, except to the extent it appears from the terms of the third will that the testator intended the first will to take effect.

HISTORY: L 1939 § 525, A.L. 1955 p. 385 § 270, A.L. 1980 S.B. 637

NOTES: PRIOR REVISIONS: 1929 § 524; 1919 § 513; 1909 § 543

EFFECTIVE Effective 1·1·81

§ 474.420. Change in circumstances .. divorce

If after making a will the testator is divorced, all provisions in the will in favor of the testator's spouse so divorced are thereby revoked but the effect of the revocation shall be the same as if the divorced spouse had died at the time of the divorce. With this exception, no written will, nor any part thereof, can be revoked by any change in the circumstances or condition of the testator.

HISTORY: L. 1955 p. 385 § 271

(1961) Where will gave to the surviving spouse such part of his estate as under the laws of the state his wife would be entitled, she would receive such part under the will notwithstanding that the parties had entered into a property settlement the day before the decedent died contemplating a divorce between them. Crist v. Nesbit (A.), 352 S.w.2d 53.

(1964) This statute held to have revoked reciprocal wills of husband and wife which were executed and a divorce obtained prior to effective date of the statute where part performance on part of wife of alleged parol agreement to keep wills in force and not revoke them was insufficient to remove alleged oral agreement from operation of statute of frauds and the application of this revocation section. Rookstool v. Neaf (Mo.), 377 S.w.2d 402.

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§ 474.425. Property given by testator during life treated as satisfaction of devise, when .. valuation

Property which a testator gave in his lifetime to a person is treated as a satisfaction of a devise to that person in whole or in part only if the will provides for deduction of the lifetime gift, or the testator-declares in a contemporaneous writing that the gift is to be deducted from the devise or in satisfaction of the devise, or the devisee acknowledges in writing that the gift is in satisfaction. For purpose of partial satisfaction, property given during the testator's lifetime is valued as of the time the devisee came into possession or enjoyment of the property or as of the time of death of the testator, whichever occurs first.

HISTORY: L 1980 S.B. 637

NOTES: EFFECTIVE Effective 1·1·81

§ 474.430. Court to conform to directions of will

All courts and others concerned in the execution of last wills shall have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before them.

HISTORY: RSMo 1939 § 568, A.L. 1955 p. 385 § 272

NOTES: PRIOR REVISIONS: 1929 § 567; 1919 § 555; 1909 § 583

(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 undivided one-half interest against contention that testator indicated intent that land go to his descendants. Thomas v. Higginbotham (Mo.), 318 SW2d 234.

(1960) There is a strong presumption against partial intestacy but where the language used by the testator is plain and unequivocal, the court cannot give it a different meaning. In re Fowler's Estate (Mo.), 338 SW2d 44.

(1963) Where testator devised all the remainder of his property, after debts were paid, to his wife 'she to have complete control and free will in the management and disposal of same so long as she may live', the widow received fee simple title to the realty. Shaw v. Wertz (Mo.), 369 SW2d 215.

(1963) Where testator devised one-sixth of his property to his wife for life with remainder to testator's 'children and heirs' the words 'children' and 'heirs' were treated as synonymous so that the children received a vested remainder in the one-sixth interest. Walters v. Sisler (Mo.), 371 SW.2d 187.

(1964) Where wife bequeathed one-half of her estate to her husband and failed to specify whether the half was to be determined on the basis of the gross estate or on the basis of the net or distributable estate, court held that she intended that charges and expenses be paid from gross estate and that the bequests be determined as a percentage of the net of distributable estate remaining. SI. Louis Union Trust Co. v. Kruger (Mo.), 377 SW.2d 303.

(1967) This section requires that, in determining the true intent and meaning of testators, courts must first look to the will, but if the language of the will is determined to be ambiguous they may look to surrounding facts and circumstances. Seltzer v. Schroeder (A.), 409 S.w.2d 777.

§ 474.435. Class gift terminology includes certain persons and relationships, how determined

_Halfbloods, adopted persons and persons born out of wedlock are included in class gift terminology and terms of

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relationship in accordance with rules for determining relationships for purposes of intestate succession.

HISTORY: L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 474.440. Bond to convey does not revoke devise

A bond, covenant or agreement made for a valuable consideration, by a testator, to convey any property devised or bequeathed in any last will previously made, does not constitute a revocation of the previous devise or bequest, either in law or equity; but the property passes by the devise or bequest, subject to the same remedies on the bond, covenant or agreement, for specific performance or otherwise, against the devisees or legatees, as might be had by law against the heirs of the testator, or his next of kin, if the same had descended to them.

HISTORY: RSMo 1939 § 523, A.L. 1955 p. 385 § 273

NOTES: PRIOR REVISIONS: 1929 § 522; 1919 § 511; 1909 § 541

§ 474.450. Encumbrance does not revoke devise .. exoneration, when 1. A charge or encumbrance upon any real or personal

property, for the purpose of securing the payment of money or the performance of any covenant or agreement, is not deemed a revocation of any will, relating to the same property, previously executed. 2. When any property is specifically devised and at the time of the testator's death is subject to a mortgage, pledge, or other lien created prior to the execution of the will or created by a mortgage, pledge, or other lien executed after the execution of the will as a renewal, or extension, or refinancing of the debt created prior to the execution of the will, the devisee shall take the property so devised subject to the charge or encumbrance unless the will provides expressly or by necessary implication that such mortgage be otherwise paid, but if the mortgage, pledge or other lien was created after the execution of the will the devisee shall take the property exonerated from the encumbrance unless it appears from the terms of the loan agreement or from the circumstances surrounding the loan transaction that the testator intended that the encumbrance should be paid out of the encumbered property rather than from his general estate. HISTORY: RSMo 1939 § 524, A.L. 1955 p. 385 § 274 NOTES: PRIOR REVISIONS: 1929 § 523; 1919 § 512; 1909 § 542

CROSS REFERENCES'. Redemption of encumbered property, RSMo 473.287, 473.387

§ 474.455. Devisee who does not survive testator by 120 hours treated as predeceasing testator-­exceptions

A devisee who does not survive the testator by one hundred twenty hours is treated as if he predeceased the testator, unless the will of decedent contains some language dealing explicitly with simultaneous deaths or deaths in a common disaster, or requiring that the devisee survive the testator or survive the testator for a stated period in order to take under the will.

HISTORY: L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 474.460. Testator surviving devisee, effect

W~en any estate is devised to any child, grandchild or other relative of the testator, and the devisee dies before the testator, or is treated as if he predeceased the testator, leaving lineal descendants who survive the testator by one hundred twenty hours, the descendants shall take the estate, real or personal, as the devisee would have done if he had survived the testator by one hundred twenty hours.

HISTORY: RSMo 1939 § 528. A.L 1955 p. 385 § 275, A.L. 1980 S.B.637

NOTES: PRIOR REVISIONS: 1929 § 527; 1919 § 516; 1909 § 546

EFFECTIVE Effective 1-1-81

(1962) Where decedent left his entire estate to his sister and expressly stated in his will that he did not desire his half-sister to have any part of his estate, the half-sister would inherit the estate when the sister who was devised all of the estate died before the testator. In re Smith's Estate (Mo.), 353 S.w.2d 721.

(1972) The term 'relative' as used in this statute is reserved for relatives by consanguinity and not by marriage. McComb v. Lyons (Mo.), 487 S.w.2d 16.

§ 474.463. Exchange of securities not to adeem specific legacy

An exchange of corporate stock, or of bonds, promissory notes or other securities, for other stock, bonds, promissory notes or securities of the same corporation or obligor or its successor does not adeem a specific legacy of the stock, bonds, promissory notes or securities, and the devisee is entitled to those received by the testator in exchange to the

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extent that they are part of his estate. A change, by a stock split or like device, in the proportional interest in a corporation represented by a share of its stock, entitles a devisee of a specified number of shares to so many shares as are needed to represent the same proportional interest in the corporation as the specified number represented when the will was executed, whether the devise is specific, general or demonstrative.

HISTORY: L. 1980 S.B. 637, A.L 1981 S.B. 117

NOTES: EFFECTIVE Effective 6-10-81

§ 474.465. Failure of devise to become part of residue

1. Except as provided in section 474.460, if a devise, other than a reSiduary devise, fails for any reason, it becomes a part of the residue. 2. Except as provided in section 474.460, if the residue is devised to two or more persons and the share of one of the residuary devisees fails for any reason, his share passes to the other reSiduary devisee, or to other residuary devisees in proportion to their interest in the residue.

HISTORY: L. 1980 S.B. 637

NOTES: EFFECTIVE Effective 1-1-81

§ 474.470. Rule in Shelley's case abolished, effect

Where under a will a remainder is devised which is limited to the heirs, or heirs of the body of a person to whom a life estate in the same premises is devised, the persons who on the termination of the life estate, are the heirs, or heirs of'the body of the life tenant, are entitled to take as purchasers in fee simple, by virtue of the remainder so limited in them.

HISTORY: RSMo 1939 § 563. A.L. 1955 p. 385 § 276

NOTES: PRIOR REVISIONS: 1929 § 562; 1919 § 555; 1909 § 578

§ 474.480. Devise deemed to convey fee simple, when

In all devises of lands or other estate in this state, in which the words "heirs and assigns", or "heirs and assigns forever", are omitted, and no expressions are contained in the will whereby it appears that the devise was intended to convey an estate for life only, and no further devise is made of the devised premises, to take effect after the death of the devisee to whom the same is given, it shall be understood to be the intention of the testator thereby to devise an absolute estate in the same, and the devise conveys an estate in fee simple to the devisee, for all of the devised premises.

HISTORY: RSMo 1939 § 564, A.L. 1955 p. 385 § 277

NOTES: PRIOR REVISIONS: 1929 § 563; 1919 § 551; 1909 § 579

(1957) Where will devised residue absolutely to testator's widow and then in a subsequent paragraph expressed the 'wish and desire' that she will the part devised which remained at her death to his heirs, widow had fee simple estate. Thompson v. Smith (Mo.), 300 S.w.2d 404.

(1959) Devise to mother and sister of testatrix 'as joint tenants with right of survivorship" held to evidence intention to devise to the two a joint estate for life with remainder to the survivor, so that conveyance of one-half of estate by one of the jOint tenants could not affect the right of survivorship granted to the other. Hunter v. Hunter (Mo), 320 S.w.2d 529.

(1964) Where testator devised residue of property to wife "the same shall be her property as long as she remain a single person" and provided for no gift over in the event wife died without having remarried, court held that wife received a determinable life estate, that quoted words were words of limitation and not of condition and that the gift over in event of remarriage of wife took effect on death of wife. Buschmeyer v. Eikermann (Mo.), 378 S.w.2d 468.

§ 474.500. Wills of land to be recorded, where

In all cases where lands are devised by last Will, a copy of such will shall be recorded in the recorder's office in the county where the land is situated, and if the lands are situated in different counties, then a copy of such will shall be recorded in the recorder's office in each county within six months after probate.

HISTORY: RSMo 1939 § 549, A.L. 1955 p. 385 § 286A

NOTES: PRIOR REVISIONS: 1929 § 548; 1919 § 536; 1909 § 566

CROSS REFERENCES: Recorded will to impart notice, when. RSMo 490.340

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§ 474.510. Deposit of will in court in testator's lifetime

1. A will may be deposited by the person making it, or by such person's agent, with the probate division of any circuit court, to be safely kept until delivered or disposed of as hereinafter provided. The clerk of the court shall receive and keep the Will, and give a certificate of deposit for it. 2. Every will intended to be deposited shall be sealed in an appropriate manner approved by the circuit court, en banc, subject to administrative rules of the supreme court, which shall have endorsed thereon "Will or, followed by the name of the testator. The clerk of the court shall endorse thereon the day when, and the person by whom, it was delivered. The wrapper may also be endorsed with the name of the person to whom the will is to be delivered after the death of the testator. It shall not be opened or read until delivered to a person entitled to receive it, or otherwise disposed of as hereinafter provided. 3. During the lifetime of the testator, the will shall be delivered only to such testator, or to some person authorized by such testator by an order in writing duly proved by the oath of a subscribing witness. After the testator's death, the clerk shall notify the person named in the endorsement on the wrapper of the will, if there is a person so named, and deliver it to such person. 4. If the will is not delivered to a person named in the endorsement on the wrapper, it shall be publicly opened in the court within thirty days after notice of the testator's death, and be retained by the court until offered for probate. Notice shall be given to the executor named therein and to such other persons as the court may deSignate. If the proper venue is in another court, the will shall be transmitted to such court; but before such transmission a true copy thereof shall be made and retained in the court in which the will was deposited.

HISTORY: L. 1955 p. 385 § 280, A.L. 1978 H.B. 1634, A.L. 1996 S.B.869

NOTES: EFFECTIVE Effective 7-1-97

CROSS REFERENCES: Fees required by probate division for deposit of will with the court prior to death of testator for safekeeping, RSMo 488.1010.

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