Probate Law in the United States of America


Probate legislative framework can contain not only domestic but also international principles and|or rules across the globe. When it comes to large jurisdictions such as the United States of America, every single inheritance norm can change from any state to another. The present study will particularly focus on the probate process in the light of the State of Missouri regulations.

I. Introduction

This article is dedicated to evaluating the existing inheritance law framework and its application in the United States of America.[1] Saint Louis city and the State of Missouri will be taken as an example for this study. In terms of methodology, comparison will be used as a useful tool in certain parts. It will be explored that the rules and practice for inheritance in the US is very different from Turkey.

II. Probate Law System in the US

Overall, it is notable at the beginning that the probate law system is far from any similarity from Turkey. Fundamental difference is that last will and testament as well as trust agreement documents play a core role in managing all inheritance assets in the US. Most people have “a revocable living trust agreement” prepared by an inheritance lawyer before their death.[2] It is significant to underline that the Testator is granted a wide margin of appreciation to identify beneficiaries and trustees. Even the testator has a right to describe family members including children. For instance, the testator can decide that “children” implies only the lawful blood descendants in the first degree of the parent designated. This necessarily means that any adopted child will be out of the concerned last will and testament.

Secondly, the testator has an opportunity to intentionally omit any person from his/her last will and testament, except those persons and entities specifically named there. The parents rely on a number of reasons for that practice such as indifference to family ties or high level of welfare.[3] That is a very regular case happening within the jurisdiction of all American States and Cities.

Thirdly, a reserved portion and|or forced share and|or statutory share rule (saklı pay kuralı) is not applicable to many states of the US. In Turkey, the reserved portion refers to the protected proportion of legal heir by law. Article 506 of the Turkish Civil Code (Numbered 4721) stipulates who are the legal heirs and what their protected portion. More importantly, the inheritor is not granted any authority to decrease or eliminate such proportions. That is not the case, however, for the US legal system. There is no guaranteed portion for core family members including children. It necessarily follows that “opening an estate”[4] may be quite surprising and worrying to the rest of the deceased’s close family members as well.

Fourthly, a full-fledged evaluation of core documents are very critical to bring a successful case before the US courts: the death certificate, the last will and testament, (revocable living) trust agreement, consumer report on the location and amount of assets.

Last but not least, in most cases, testators in the US willingly leave children out of their estates all the time in the US. What is worse, that is regarded as falling with the ambit of the term “legal”. It is very hard to contest against such clear will and or documents.

III. Legal Action Against Last Will and Testament Documents

This part will highlight the question of what type of rights close relatives will be able to argue against a last will and testament document signed by the decedent. For instance, if a Turkish father dies in the US and his Turkish children are not described as beneficiaries of his trust in his last will and testament, how can they contest against his last will? When the testator father intentionally omitted any of his child as beneficiaries of his last will, children are recognized to submit 4 main arguments to receive from assets located in the US:

The children can maintain before judicial institutions that

1-the relevant last will and testament was signed when the father was out of mind,

2-the involved last will and testament was signed at the time of signature “under duress” and| or “undue influence”[5] of any person,

3-the last will and testament concerned was signed by father’s mistake,[6]

4-the omitted child clause can be applicable to the case.[7] For instance, under the legal framework of the State of Missouri, “an omitted child statute” regulates that  any omitted child heirs of a decedent person has a right to receive a statutory share of the decedent’s estate, when an omitted child satisfies core elements of the statute. “Omitted heirs clause” refers to ‘a situation where a child is born to or adopted by a testator after a will or trust has been set up but is not updated to reflect this change can be deemed by courts to have created an omitted heir’.[8]

The omitted child should prove that he/she was born or adopted after this will. Or the father  believed that his  child heirs were dead while signing it. Such cases are named as “codicil”. Such cases pave the way for providing the addition of names of relevant heirs into will through the acceptance of the related evidence such as handwritings.[9] According to the established case-law of the US Supreme Courts, ‘a codicil is an instrument testamentary in character which supplements, adds to or qualifies an existing will and which is made by the testator to alter, enlarge, or restrict the provisions of the will or to explain, republish, or revoke it’.[10]

IV. Conclusion

To sum up, filing a petition for a probate and carrying out follow-up procedures requires utmost attention of legal heirs. This study is intended to explore the most challenging aspects and workable solutions to probate law and its practice in the US. It has been particularly established that the statutory distribution to heirs rather than what is written in the deceased person’s last will needs careful steps. Understanding deadlines and timelines for each process including codicil cases is far beyond simple.

[1] Hereinafter as US

[2] See inter alia Committee on Estate and Tax Planning, ‘The Revocable Living Trust as An Estate Planning Tool’ (1972) 7 (2) Real Property, Probate and Trust Journal 223, 223

[3] James F. Roberts, ‘7 Tips for Administering a Trust With Omitted <Children’> accessed 18.9.2023

[4] With regard to a useful guideline for trust administration, see among others, Stephen G. Christianson, How to Administer an Estate: A Step-by-step Guide for Families and Friends (5th Edition, Career Press, 2004, NJ)

[5] The meaning of “undue influence” or “under duress” changes in terms of specific circumstances of each case, therefore, relevant conditions are identified by judicial decision of the relevant court: A.J. White Hutton, ‘Undue Influence and Fraud In Wills’ (1932) 37 (1) Dickinson Law Review 16, 17

[6] Adam J Hirsch, ‘Airbrushed Heirs: The Problem of Children Omitted from Wills’ (2017) 34 (2) GPSolo 56, 57

[7] Ibid

[8] See inter alia, Legal Information Institute: Omitted Heir, Official Website of the Colonel Law School <> accessed 10.09.2023

[9] ‘Validation of Defectively Executed Wills by Holographic Testamentary Instrument: Integration and Incorporation by Reference’ (1956) 23 (2) The University of Chicago Law Review 316, 316

[10] See among others, Johnson v. Johnson, (Case Num. 35937), Judgment of Supreme Court of Oklahoma on 19.10.1954

Dr. Kutlay Telli
Consultant||Senior Lawyer|| Researcher|| Certified Peer Reviewer
LLM Leicester University Faculty of Law, Leicester, UK
Visiting Scholar Fordham University Faculty of Law, New York, USA
After his graduation from the Faculty of Law in Ankara, he received his second master’s degree from the Leicester University Faculty of Law, UK in 2008. He delivered lectures in Fordham School of Law in the USA. He completed his dissertation research for an associate professor degree in New York. He speaks Turkish, French and English very fluently. He has extensive experience in different branches of public and private international law. He has been engaging in legal matters by working within the framework of national institutions and international organizations such as the United Nations for 20+ years.
He wrote six books and numerous articles in journals with referees (mostly in English) dedicated to effective solutions to the existing and underlying challenges facing the international community. Dr. Telli has a great capacity to produce legal documents, articles, reports and all related contents in English. He plays a considerable role in a number of leading international peer reviewed journals as referee. He also has extensive experience in
negotiation techniques and diplomacy. Dr. Telli has a great deal of knowledge about challenging legal issues particularly through his career pathways in working as a judge in Supreme Judicial Authorities before. Currently, Dr. Telli delivers legal and business consultation to foreign companies on their investment projects in Turkey. His latest book on “Financial Technologies and Law” aims at offering comprehensive observations about emerging risks and challenges associated with the e-payment financial markets.
His latest study on “Handbook for Foreign Entrepreneurs on Turkey Investment Strategies”is dedicated to identifying the key legal requirements for investing in Turkey through the franchising, agency and license agreement or the establishment and registration
of the company.