If the assets were titled in your grandmother's name alone, then probate will be necessary. Unless you and your brother are BOTH appointed co-executor (or co-personal representative, as we call them in Michigan), then NO, you both do not get to decide. The court appointed executor gets to decide, whether you agree or not.
In answer to your second question, it depends on the nature of the documents. If they are set up in a certain way, they may well qualify as a Will or an amendment to a Will. In Michigan, that would be the answer. In Missouri, or wherever your grandmother was a resident at the time of her death, the answer might be different.
You need to meet with a probate attorney in the relevant state, as soon as possible. The attorney can help you determine what your options are and how best to proceed. Sometimes, this amounts to a "race to the courthouse." You need to know what your rights are.
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You should contact a Missouri attorney on these issues. I presume by reading your post that your parents predeceased you and you have no other brothers or sisters except you and your other brother. Most states follow the general principle on how assets are to be distributed when someone dies without a Will. A document that outlines wishes of your grandmother could be deemed a valid Will so long as it was properly executed in accordance with Missouri law. If not, those documents would only provide guidance to you two and not something you could enforce in court.
My colleagues are both accurate on the information they have already provided. In Missouri, you will have to go through probate since there was no will. Probate is a lengthy process but if her assets were over a certain value it is the only way. If her assets were not over a certain value we could do a small claims affidavit which is a probate proceeding that can be done when there is no will and nothing has been filed with the probate court yet and would take less time.
Probate works like this: A personal representative will be appointed by the probate court. This will probably be either you or your brother, the court will decide but may hear from you two on which one wants to take the responsibility. The decedent’s property is held and managed by the personal representative during the administration of the estate. The personal representative makes distribution of the estate when the probate court approves the transactions made to pay claims and expenses and the proposed distribution schedule.
The earliest that an estate may be closed and distribution made is approximately six months and 10 days after the date of first publication. A notice to creditors must be published announcing that the estate has been opened. A Notice of Intention to File a Final Settlement or Statement of Account must be published before the estate can be closed unless it is waived in writing by the distributes. It often takes a year or more to finish the administration.
Here are the steps you will need to go through for probate:
• Apply for Letters Testamentary if there is a will admitted (or apply for
Letters of Administration without a will).
• Publish notice to creditors. The date of first publication starts a six-month
period for claimants to submit their claims to the court and the personal
• Inventory and appraise assets.
• Administer the estate and sell property if funds are needed to pay bills. Pay debts, claims, taxes, and expenses.
• Prepare a settlement showing income and disbursements.
• Obtain court approval for distribution and close estate.
Of course, this will all be different if you are able to do a small estate affidavit.
Either way, if your grandmother had any debts when she died, they have rights against her assets.
The probate court serves as a forum through which creditors of the deceased can protect their claims and seek payment. If there are not sufficient assets to pay all claims and allowances, they are paid in proportion by certain priority classifications (for example, the funeral bill must be paid before general claims). If you do a small estate affidavit, the heirs doing the affidavit become personally liable for the debts if they do not pay them out of the assets so be careful with this. Make sure she does not have any liens from medicaid or anywhere else that are more than what her estate is worth or you could lose all of it to the secured creditor.
Also, the administration of the estate normally may not be closed until taxes (state and federal) have been paid, including the death transfer taxes, the decedent’s final income taxes, estate income taxes, and real estate and personal property taxes. Death-transfer taxes must be paid on probate assets and other assets transferred at death (for example, life insurance) over a minimum amount.
The administration of any probate estate involves the payment of certain expenses. The expenses usually encountered in the average estate fall into four main categories.
(1) Bond Premiums
(2) Costs of Publication
(3) Court Costs
(4) Personal Representative’s Commission and Attorney’s Fees if you use an attorney.
As you can see, there is a lot that goes into resolving your situation and it would be best to contact an attorney to help you so you can make sure it gets done right. The amount an attorney charges will usually be proportional to the value of the assets probated. So if there are not many assets, it may not cost as much.
Hope this info helps!
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My response is based on Missouri law, and should only be taken as general information and not exact legal advice. I would need to meet with you and know all of the facts to be definitive. I also assume that you are correct in that you and your brother are the only "legal heirs," as this determination would depend upon other surviving descendants - another issue.
The Estate will be handled through intestacy (no Will), as you point out. In Missouri, the Estate may be a "Refusal" (less than $15,000.00), a Small Estate (less than $40,000.00) or a full Estate ($40,000.00 or more).
Assuming she died recently, and an Heirship Determination is not needed (another possibility), you are most likely looking at a Small Estate or a full Estate.
In a Small Estate, an "Affiant" (you or your brother) files an Affidavit with the Probate Court, setting forth the assets and the heirs (you and your brother equally). Debts and expenses would be paid, and then you would each be able to collect 50% of the remainder. An attorney would be required.
In a full Estate, an "Administrator" would be appointed by the Probate Court (you or your brother - and that could be contentious from what I see) to handle the Estate. This process could take up to a year or more, and is more complex than a Small Estate. Again, more formally, debts are paid, expenses are paid, and then you and your brother would share the proceeds equally. Again, an attorney would be needed.
You should also keep in mind whether or not you grandmother received any state aid at any point. In Missouri, this needs to be paid back to the state.
As to the documents that "clearly" outline your grandmother's wishes, that is another issue. The documents would need to reviewed by an attorney to determine if they qualify as a valid Will or not. That could change the entire picture - no intestacy.
Hopefully, this helps. Meet with an attorney to discuss all facts and to determine the proper method of handling this matter. Best wishes.
This is general legal information and not legal advice. I would need to be retained and know all of the facts to give legal advice.