Effective 28 Aug 1993

473.340. Discovery of assets, procedure for. — 1. Any personal representative, administrator, creditor, beneficiary or other person who claims an interest in property which is claimed to be an asset of an estate or which is claimed should be an asset of an estate may file a verified petition in the probate division of the circuit court in which said estate is pending seeking determination of the title, or right of possession thereto, or both. The petition shall describe the property, if known, shall allege the nature of the interest of the petitioner and that title or possession of the property, or both, are being adversely withheld or claimed. The court may order the joinder, as a party, of any person who may claim an interest in or who may have possession of any such property.

2. Service of summons, petition and answer thereto together with all subsequent proceedings shall be governed by the Missouri Rules of Civil Procedure. Any party may demand a jury trial.

3. Upon a trial of the issues, the court shall determine the persons who have an interest in said property together with the nature and extent of any such interest. The court shall direct the delivery or transfer of the title or possession, or both, of said property to the person or persons entitled thereto and may attach the person of any party refusing to make delivery as directed. If the party found to have adversely withheld the title or possession, or both, of said property has transferred or otherwise disposed of the same, the court shall render a money judgment for the value thereof with interest thereon from the date the property, or any interest therein, was adversely withheld. In addition to a judgment for title and possession, or either, or for the value thereof, the court may enter a judgment for all losses, expenses and damages sustained, if any, but not including attorney fees, if it finds that the property was wrongfully detained, transferred or otherwise disposed of.

4. If the court finds that a complete determination of the issues cannot be had without the presence of other parties, the court may order them to be brought in by an amended or supplemental petition. The court shall order the joinder of the personal representative of the estate if he is not named as a party.

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(RSMo 1939 § 63, A.L. 1955 p. 385 § 128, A.L. 1973 S.B. 210, A.L. 1978 H.B. 1634, A.L. 1982 S.B. 700 Revision, A.L. 1993 S.B. 88)

Prior revisions: 1929 § 63; 1919 § 62; 1909 § 70

(1958) Where money was given another by deceased to use for the benefit of deceased and upon her decease to be kept by the donee, a trust was created, and probate court had jurisdiction in proceeding under this statute to determine whether equitable title had ripened into legal title on deceased's death. Covey v. VanBibber (A.), 311 S.W.2d 112.

(1961) Where ultimate issue in proceeding to discover assets was whether the assets constituted trust property or whether the trust had been revoked by decedent prior to her death, the probate court had no jurisdiction because the action is strictly equitable in nature. In re Frech's Estate (Mo.), 347 S.W.2d 224.

(1963) Petition by executor held to state cause of action to establish and enforce a trust as to money held in joint bank account in names of decedent and defendant against contention that remedy at law was adequate in that probate court had jurisdiction to determine executor's claims in discovery proceedings and that such jurisdiction was exclusive. Matthews v. Pratt (Mo.), 367 S.W.2d 632.

(1968) In proceeding under this section evidence supported administrator's contention that items in controversy were held either in joint tenancy or tenancy by the entirety and were not assets of the estate. In re Estate of Jeffries (Mo.), 427 S.W.2d 439.

(1977) Petition to seek determination of title or right of possession to property may allege contingent interests on property as well as a specific interest. Clair v. Whittaker (Mo.), 557 S.W.2d 236.

(1987) Failure to join the personal representative in an action to discover assets pursuant to this section is a jurisdictional defect since personal representative is an indispensable party pursuant to subsection 4 of this section. In Re Estate of Pilla, 735 S.W.2d 103 (Mo.App.E.D.).