Bob Linhares Probate Law

12/29/2022

I represent clients who are seeking to be appointed by the probate court as guardian and/or conservator over children under the age of 18 years old or adults who are unable to care for themselves and meet the standard required under Missouri law.
A guardian is responsible for caring for the person's (called a "ward") medical care, safety, living arrangements and conditions, education, support and maintenance. In general, the guardian "stands in the shoes" of the ward in making all decisions that are in the best interest of the ward.
A conservator is responsible for the ward's property. Property includes any real estate, bank accounts, stocks, vehicles, insurance proceeds, inheritance or other types of personal property that ward has. As a conservator, the court authorizes you to take possession of the ward's property and maintain or use the property for the ward as authorized by the Court.
Under what circumstances is it necessary to be appointed as a guardian or conservator? The following are a few common examples:
1) Conservatorship for a minor: A child under age 18 years old receives property. An example would be when a child is the beneficiary of a life insurance policy or investment account or is a beneficiary on a beneficiary deed for real estate. In these cases the minor child cannot receive the funds or own the property in their name because of their status as a minor. In such situations, the parent or legal guardian of the child has to actually apply through the probate court to become conservator for the child and maintain the property or hold the funds for the minor child until the child reaches 18 years old. This may seem confusing or surprising to a parent, but it is required. The conservator must set up a separate bank account for the minor ward and get the court's permission in order to spend funds from the account. An annual accounting has to be provided to the Court each year.
Guardianship for a minor: A child under 18 years old does not have parent or the parents of the minor child have abandoned the child. A common example would be where the grandparent, aunt or other relative is caring for a child because one parent is deceased and the other parent has not been involved in the child's life. In such a case, the grandparent, aunt or relative will need to apply to be appointed a the child's guardian. If the living parent who has not been involved in the child's life signs a consent form the case can be handled through an uncontested court hearing. However, if the living parent does not agree to sign the consent form or cannot be located, the hearing is treated as a contested hearing and the person seeking to be appointed as guardian will need to establish that the parent has abandoned or neglected the child.
Guardianship and Conservatorship for an adult: The standard in Missouri for a guardian or conservator to be appointed over an adult is as follows:
Guardian: Determination by a physician or other medical expert that the person is unable to receive and evaluate information or to communicate decisions to the extent that he or she lacks the capacity to meet the essential requirements for food clothing, shelter, safety or other such care and that serious physical injury, illness or disease is likely to occur.
Conservatorship: Determination by a physician or other medical expert that the person is unable to receive and evaluate information or to communicate decisions to such an extent that he or she lacks the ability to manage his or her financial resources.
In all guardian and conservatorship matters the court appoints an attorney for the ward and depending on the circumstances and level of competency the ward has he or she may seek to contest the appointment of a guardian or conservator. In certain circumstances only a limited guardianship or conservatorship may be needed. For example a limited guardianship may allow the person to be able to retain voting rights, but not enter into legal contracts or have a bank account in their name.
In future posts I hope to get into some more of the details concerning guardianship and conservatorship appointments. If you or someone you know has questions or needs help with a guardianship or conservatorship matter please do not hesitate to reach out to me.

01/08/2021

Probate does not have to be a traumatic experience. I have many years of experience handling probate matters such as regular probate estates, small estates of less than $40,000 in assets, conservatorships and guardianships, and I know how to navigate a system that can seem intimidating and confusing. Allow me to lighten the load and ease your burden. Call me at (314) 725-1118.

08/17/2020

A revocable trust is only valuable to you and your loved ones for avoiding probate if it is properly funded. In other words, certain assets should be titled in the name of your trust or the trust should be designated as the beneficiary. For example:
Real Estate - A General Warranty Deed should be recorded to title your real estate in the name of your trust.
Investment Accounts - Your regular investment accounts should be titled in the name of your trust or the trust should be designated as the beneficiary.
Retirement Accounts - Your IRA accounts will remain in your name, but the particular beneficiary designation will depend on considerations such as the amount of funds in the IRA, your age and marital status, and the age and health conditions of your spouse and children.
Bank Accounts - Your checking and savings accounts should be titled in the name of your trust or include a “Payable On Death” (POD) designation identifying your trust as the recipient of the funds upon your death.
Vehicles and Watercraft - Your vehicles, boats, trailers and motors should include a “Transfer On Death” (TOD) designation to your trust on the title.

My service to you as your estate planning attorney doesn’t stop after you sign your trust and last will and testament. I work with you and your investment advisors to be certain your trust is funded correctly and follow up to confirm that the requested changes are made.

Funding your trust properly will assure that the assets will be distributed properly for any purpose for your beneficiaries. Your trust should include provisions for beneficiaries who are disabled or eligible for needs-based governmental benefits, like Medicaid, to protect the assets by placing them in a trust that doesn’t count toward qualification for benefits.

What would happen if you die after creating a trust but one or more of your assets was not titled in the trust or did not have a designated beneficiary? The personal representative you designate in your last will and testament would have to file the will with the probate court and open a probate estate in the county where you resided at the time of your death. The will would then direct that the asset be transferred into your trust and distributed according to the terms of the trust. Probate estates have a cost in dollars for fees for court filing, publishing notices and your attorney’s billing. Also, there will be a cost in time for court approval, which varies by county (from a few weeks to several months) and, in the case of a full estate, a waiting period of six months after the notice of the issuance of Letters Testamentary is published for any claims to be filed before the estate can be closed.

04/29/2020

Do you have an adult family member who is unable to care for themselves or perhaps is a danger to others due to mental illness? To complicate matters, the family member may be unwilling to get help. You may feel completely helpless. This can be a very difficult situation, but there may be a way to help the person. A court can appoint a guardian and conservator over a person who has been determined by a medical expert to lack mental capacity or competency. To start the process, a Petition must be filed with the probate court applying for guardianship over the person. Usually a family member applies to become the guardian and conservator for the family member who is suffering from mental illness. In certain situations, this difficult choice has to be made. The process is not easy to navigate and does not solve all problems, but it can potentially make a big difference. Please feel free to contact me to ask more questions.

04/08/2020

What can you do if more than one year passes since the death of a person and you discover that the deceased left property or an account in their name without a beneficiary designated?

Under Missouri law, you will need to file what is known as a Petition For Determination of Heirs with the probate court in the county where the deceased person last resided. Under this probate process the Court makes a determination as to who the legal heirs are who are entitled to ownership of the property or account. If the deceased person had a Will but the Will was not filed with the probate court within the one year time limit, it no longer has any effect and the property goes to the legal heirs regardless of what the Will says.

If you have a family member that died more than one year ago and left property in his or her name, I can help you get the property transferred to the rightful heirs.

04/08/2020

Many thanks to clients who wrote reviews on my profile on Avvo, a lawyer search website. Follow this link to see more:
https://www.avvo.com/attorneys/63105-mo-robert-linhares-1074991.html

04/06/2020

Will signings and notarizing documents can now be done through video conferencing in Missouri. Today Governor Mike Parson signed an executive order suspending the requirement of a personal appearance by a notary by allowing the use of video conferencing. The Governor also suspended the requirement for two witnesses to be physically present to witness you signing your Last Will and Testament as long as the witnesses are on the video conference and other requirements are met. This order is effective now through May 15, 2020, unless extended. Please contact me for more information.

WHEREAS, on March 13, 2020, Executive Order 20-02 invoked the provisions of sections 44.100 and 44.110, RSMo, and declared a state of emergency that exists in the State of Missouri due to the spread of COVID-19; and

03/24/2020

One question that is commonly asked is how long does probate take? The length of time can vary depending on a number of factors. It is possible for the estate to be open one year or longer, but in Missouri the minimum length of time for a probate estate with assets of $40,000 or more is approximately six months, and it is often possible to accomplish this within the six month time frame (estate's with a value under $40,000 can often be handled in considerably less time through a Small Estate Affidavit or other means). When the estate is opened a notice is published, usually in a legal paper, notifying potential creditors that an estate has been opened and that they have six months from the first date the notice is published to file a creditor's claim with the probate court stating how much they are claiming to be owed. If all creditors' claims have been resolved and all of the assets in the estate have been collected and are ready to be distributed to the beneficiaries named in the Will, the attorney will publish a final notice indicating the date on which the estate will file what is known as the Statement Of Account and Proposed Schedule of Distribution. After the Statement of Account and Proposed Schedule of Distribution is filed, there is a twenty day period in which someone who objects to the Statement of Account and Proposed Schedule of Distribution can file an objection with the Court. After the twenty day period runs and if no objections are filed, the personal representative can safely distribute the estate funds or assets. If you have a probate matter in Missouri or Illinois, please contact me to discuss representation.

03/14/2020

When a person dies with a Will and the property they own needs to be probated, the Will commonly designates that the Personal Representative identified in the Will can serve under what is known as "independent administration" as opposed to "supervised administration" and the probate requirement that the personal representative be required to post a bond equal to the value of the estate can be waived. As your attorney I will meet with the Personal Representative and get all of the necessary information required to file the Application for Letters Testamentary with the probate court. Filing this application is the first step in the probate process and once the personal representative is appointed by the Court and receives his or her "Letters Testamentary" they can begin to carry out their duties under the guidance of the attorney. As an experienced probate attorney I can represent you in administering the probate estate.