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RayAnswers, Attorney
Category: Estate Law
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Experience:  Texas lawyer for 30 years in Estate law
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This is basic estate distribution math for a probate estate

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This is basic estate distribution math for a probate estate worth $100K. Sibling A gets $90K of estate in the form of house and car. Sibling A, B, and C get $10K of residual property that is equally distributed per the will. Residual property is a bank account containing $10K. There is $10K of debt against the estate. How is the debt allocated based on asset distribution?

Thanks for your question and good afternoon.

The normal procedure here is that in probate here the claims are paid first, and then the property is distributed according to the terms of the will.The debt would get paid first here. If this means the recipient gets no money that's how it would be since this is a contingent bequest here.The creditors have priority against such a contingent gift.

If there are debts beyond the $10k here owing against the estate then the court would decide if other assets would have to be sold.And if there is any question about this the executor may take this back to court and get court ordered approval to pay claims especially if this leaves an heir with a contingent gift with nothing. The probate court would decide if this is to be the case.

This is always going to be a problem with a will leaving such a contingent gift, the creditors have a right to be paid prior to any distribution.

The other thing I must point out is that if this was left as a survivorship account--in two names with right of survivorship it passes outside of the estate to the survivor.Here it appears it was in the deceased's name only in which case it is distributed through the will.If there is any question going back to court and having the court approve payment of debtor claims and distribution is the way to go.This protects the executor from having liability in such a situation.

 

Here is the probate law for Missouri----

 

http://www.moga.mo.gov/statutes/C473.HTM

 

see

 

473.270 through 473.290 for payment of claims and creditors.


I appreciate the chance to assist you today.Please let me know if you have more follow up.Thanks again.

 

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This communication does not establish an attorney-client relationship.Information provided here is not legal advice. Rather it is simply general information.

RayAnswers and 3 other Estate Law Specialists are ready to help you
This is reference to what Is stated above about bank accounts with a right of surivorship passing outside of probate, but they woud have had to be set up that way with a named beneficiary.

Transfers on death, certain provisions deemed nontestamentary, exceptions.

461.001. 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 and section 474.320:

(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.

Thanks again let me know if you have follow up.
Customer: replied 3 years ago.

The executor is sibling A, and is a scoundrel. I am sibling C. What can I do to ensure there is fair and equitable distribution of assets and debts?

You would want to make sure the debt is paid off.You would argue to the probate court that if there is insufficient funds to pay your bequest that assets here like the car of the house if necessary be sold.in order that you be paid.

Argue that equity would require that here--that you get something.In short it is equitable that if necessary an asset be liquidated so that you receive your share or at least something significant.And don't forget that as an heir you can write the judge with this request or complain about anything else.

There will be an inventory filed here, you have right again to ask questions or challenge it as incomplete by writing the judge to set out your views here.You cannot speak to a judge unless parties are present here in open court but you may write him anytime you have questions.The court clerk will have his name and mailing information here.

I wish you the best in all fo this.I hope you are able to get your inheritance.

RayAnswers and 3 other Estate Law Specialists are ready to help you
Thanks for your recent estate law question .If you have more in the future please post them for Ray. Thanks again.

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