GLOSSARY OF TERMS

Below are some terms commonly used in our Areas of Practice. 

ESTATE PLANNING PERSONAL INJURY CLAIMS POWER OF ATTORNEY
PROBATE REAL ESTATE TRUST
WILL    


 

Estate Planning – This area of the law generally includes wills, beneficiary deeds, trusts and powers of attorney. 

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Personal Injury Claims – These are claims for compensation that usually arise from the negligence of another person or business entity. They often occur as a result of car accidents or work place injuries.  If a lawsuit is necessary to recover the injured person’s damages, it must be commenced before the deadline for such action, i.e. before the applicable statute of limitations “runs”.

Often insurance carriers for the negligent person or company will contact the injured person through a claims adjuster to take a recorded statement and to obtain an authorization to look at the medical records of the injured person. Information obtained by the adjuster can later be used to limit or even deny a claim. This is why it is important to have legal advice before responding to such a request. Generally adjusters will discourage the injured person from consulting an attorney.

Other insurance coverages such as homeowner’s insurance, Worker’s Compensation, medical payments coverage, uninsured and under-insured motorist coverage on car insurance policies may also be sources of compensation for injuries. An attorney can assist you in evaluating and prosecuting such a claim.

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Power of Attorney – This is a document that gives to another person or business institution authority to enter into binding legal contracts, write checks and make decisions regarding the management and disposition of property and, if it is a Medical Power of Attorney, to make healthcare decisions on your behalf. These are usually made in what is called a “durable” form, which means it stays in effect even if the maker becomes incompetent. It is a powerful tool and should only be used in limited circumstances. It is usually notarized so it can be recorded in the land records if necessary.

All of the above documents are usually made revocable or modifiable so as circumstances change the documents can be updated. It is possible to make some of them irrevocable, but that should only be done after careful consideration of all the circumstances that might arise.

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Probate – Probate is a generic term for a procedure in the circuit court system that deals with the property and personal matters of a disabled and/or incapacitated person or of a deceased person (a decedent). A Guardianship and/or Conservatorship can be established for a minor or an incapacitated and/or disabled adult person through this court as well. The person appointed as guardian and/or conservator of a person then manages the personal and/or the property, assets, and business affairs of the individual involved. The disabled and/or incapacitated person is called a ward or protectee of the court.

If a person dies with real and/or personal property in his or her name alone, it will be necessary to “probate” that decedent’s estate whether or not the individual has a will.

If a person dies with a will, i.e. “testate,” it and other documents are filed in the probate court in order for the Personal Representative named in the will (previously called an Executor or an Administrator) to obtain authority to administer the estate. A will must be filed and “probated” within the time set by statute for it to govern distribution of the decedent’s estate. If the will is properly “probated,” a document called Letters Testamentary is issued by the court which gives the Personal Representative authority to act as a representative of the decedent’s estate. The probate process normally takes 8 to 9 months, but this time may be shortened or lengthened depending on the size of the estate and whether or not it is necessary to litigate contested claims. There is a statutory six (6) month claim period for full estate administrations that cannot be shortened.

If a person decides to challenge a will, the will contest must be filed within a limited period which begins on the date the first notice of Letters Testamentary being granted is published in the newspaper. The only persons entitled to challenge a will administered in Missouri are those defined as being “interested”. Reference to the controlling statute must be made to see if one has the necessary relationship to the decedent or “interest” to bring such an action.

If a person dies without a will, i.e. “Intestate,” or no will is properly “probated”, the same general procedures are followed as set forth above; however, there are certain distinct differences.  Since there is no will to be followed, the manner in which the estate is administered, divided and ultimately distributed is determined by state statutes. Also, the person applying to administer the estate must file a fiduciary bond and many of the actions that the Personal Representative needs to take require a court order before the action can be taken. It is generally more cumbersome, expensive and time consuming to administer an estate in this fashion. 

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Real Estate – All land and property permanently attached to the land is considered real estate. Attached property would include houses, fences, trees, etc. Temporary structures that can be removed without damaging the land are generally considered personal property. The characterization of items can change from real estate to personal property such as timber and crops as they are harvested.

Work we perform in this area includes preparation of contracts for sale of real estate, promissory notes, deeds of trust (mortgages), leases, easements, options to purchase, etc. We also handle boundary disputes, partition sales, foreclosures, quiet title suits and other formal legal actions involving real estate.

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Will – A will is a document that directs how your property is to be distributed upon your death. It must be drawn up and signed with certain formalities such as the correct number of witnesses, a proper signing ceremony, etc. A will that does not comply with all of these requirements can be successfully contested and set aside. If that occurs, the decedent’s property is distributed as set forth in the Missouri statutes which is often contrary to the wishes of the decedent. 

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Trust – A trust is a document or series of documents separate from a will that can be used to transfer property (real or personal) to a trustee for the benefit of selected beneficiaries. It can be used together with a will to achieve the desired distribution of assets with a minimum amount of expense and court involvement.

A person can serve as his or her own trustee of their property and name a successor trustee to take over when he or she is unable to manage routine business affairs. The advantages of a trust are numerous. There is no public record of the assets or how they are being distributed, there are no time restraints on distributions (except practical ones) and a trust is effective immediately when signed as opposed to a will which only becomes effective on the death of the decedent and after it is admitted to probate.

Usually it is more expensive to set up a trust because of the extra paper work and the need to “fund” the trust. This means you have to take steps to make property subject to the trust by re-titling it (i.e. you have to make new signature cards at the bank, retitle stock certificates, retitle your real estate, etc.) The cost and time saving can be substantial when compared to probate. Tax savings can also be achieved under some circumstances. 

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