In the Missouri Court of Appeals

Western District

IN THE ESTATE OF SHIRLEY J. 

MERRIOTT, Deceased, 

CITIZENS-FARMERS BANK OF COLE 

CAMP,

Appellant,

v.

THOMAS SIDNEY MERRIOTT, 

TIMOTHY SCOTT MERRIOTT and 

TAMRA SUE MERRIOTT WILSON,

Respondents.

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WD76938

FILED: August 19, 2014

APPEAL FROM THE CIRCUIT COURT OF MORGAN COUNTY

THE HONORABLE KEVIN P. SCHEHR, JUDGE

BEFORE DIVISION ONE: MARK D. PFEIFFER, PRESIDING JUDGE,

LISA WHITE HARDWICK AND KAREN KING MITCHELL, JUDGES

Citizens-Farmers Bank of Cole Camp ("Appellant") appeals from the probate 

court's judgment in an action for accounting pursuant to Section 461.300, RSMo Cum. 

Supp. 2013,1against Thomas Merriott, Timothy Merriott, and Tamra Merriott Wilson 

(collectively, "Respondents"), who are the children and heirs of Shirley Merriott 

("Merriott"). Appellant had filed the action for accounting to allow Merriott's estate to 

recover the value of all nonprobate transfers that Merriott had made to Respondents in 

order to discharge Appellant's unpaid claim against the estate. 

 

1

All statutory references are to the Revised Statutes of Missouri 2000, as updated by the 2013 

Cumulative Supplement.
2

On appeal, Appellant contends the probate court misapplied the law regarding 

the proper remedy for an accounting action under Section 461.300 when it ordered 

Respondents to sell Merriott's residence and give Appellant any sales proceeds 

remaining after the mortgage was paid. Appellant further contends the court erred in 

valuing the residence at the time of trial instead of at the time it was transferred to 

Respondents and in assigning a value to the residence that was not supported by 

substantial evidence. Because (1) the proper remedy under Section 461.300 was a 

money judgment in favor of Merriott's estate and against Respondents for the value of 

the recoverable transfers to the extent necessary to discharge Appellant's claim against 

the estate; and (2) the court should have determined the value of Merriott's residence at 

the time of her death instead of at the time of trial, we reverse and remand this case to 

the probate court for further proceedings. 

FACTUAL AND PROCEDURAL HISTORY

Merriott died on March 5, 2008. Shortly after Merriott's death, the personal 

representative of her estate filed an "Affidavit to Establish Title of Distributees of 

Decedent Where Total Estate is Less Than $40,000." The affidavit listed real and 

personal property valued at $16,497.59, and Respondents were named as the 

distributees of the property. The probate court executed the certificate of clerk portion 

of the affidavit, which indicated that each of the Respondents was to receive an 

undivided one-third interest in the estate property.

In March 2009, Appellant filed a claim against Merriott's estate for $370,479.38, 

which it alleged was the unpaid balance plus accrued interest on loans that Merriott and 
3

her husband2had obtained from Appellant. These loans included one unsecured 

promissory note and several promissory notes secured by rental properties owned by 

Merriott and her husband. Contemporaneously, Appellant also filed a petition to require 

administration of the estate. In its petition, Appellant alleged that, as a creditor, it was a 

person interested in the estate. Appellant further alleged that substantial assets passed 

to Respondents and that those assets were subject to its claim under the provisions of 

Section 461.300. This statute provides that recipients of nonprobate and other transfers 

outside of the administration of a decedent's estate are liable to account for the value of 

such transfers to the extent necessary to discharge statutory allowances and claims that 

remain unpaid after application of the decedent's estate. § 461.300.1. The probate 

court sustained Appellant's petition to require administration of Merriott's estate and 

appointed Thomas Merriott as personal representative.

In July 2009, Appellant filed a demand for the personal representative of 

Merriott's estate to bring an action under Section 461.300 against the recipients of 

transfers of her property. In the demand, Appellant alleged that substantial assets had 

been transferred to Respondents under Missouri's nonprobate laws and that the 

transfers were subject to an action for accounting under Section 461.300.3 Appellant 

asked that the personal representative commence such an action.

 

2 Merriott's husband predeceased her.

3

As discussed infra, an "action for accounting" under Section 461.300.2 is a procedure by which qualified 

claimants can recover the value of nonprobate and other recoverable transfers to satisfy unpaid claims. It 

is not the same as an "action for an accounting," in which a party seeks "detailed financial and 

transactional information from various fiduciaries." Robert J. Selsor, Fattening Up the Skinny Estate --

The Non-Probate Transfer Statute's Remedies for Pursuing a Decedent's Assets, 67 J. Mo. B. 286, 288

(Sept.-Oct. 2011).

 
4

In August 2009, Appellant foreclosed on the rental properties that secured 

Merriott's loans. After the foreclosure sales, the total amount of the deficiencies on the 

notes was $159,827.20. 

After Thomas Merriott, as personal representative of the estate, failed to file an 

action for accounting under Section 461.300, Appellant filed such an action. Appellant 

alleged that Respondents had received Merriott's personal property, her three bank 

accounts via a transfer on death designation, and her residence and rental property via 

beneficiary deeds. Appellant asked that the court enter judgment requiring each of the 

Respondents to deliver "all assets or a sufficient portion thereof on a pro rata basis to 

the extent determined by the Court to be necessary to discharge" Appellant's claim 

against Merriott's estate. 

The probate court removed Thomas Merriott as personal representative of the 

estate and appointed the Morgan County Public Administrator to serve as personal 

representative. In October 2011, the court held a hearing. Following the hearing, the 

court ordered Respondents to make an accounting4to the personal representative "as 

to all property received by them through non-probate transfers." 

In February 2012, Appellant filed a motion for judgment on its petition for 

accounting under Section 461.300. In the motion, Appellant alleged that Respondents 

had a total of $60,762.99 in nonprobate assets, which consisted of the remaining 

proceeds from the sale of real and personal property after expenses were paid, funds 

from Merriott's Edward Jones account and three bank accounts, and $34,000 in equity 

 

4 When the court ordered Respondents to make an "accounting" of all nonprobate transfers to them, it 

was not granting Appellant relief on its "action for accounting" under Section 461.300. Instead, it was 

ordering Respondents to file detailed financial and transactional information concerning the nonprobate 

transfers they received.
5

on Merriott's residence. Appellant requested that the court enter a money judgment in 

favor of Merriott's estate and against Respondents for the entire $60,762.99 to 

discharge Appellant's claim against the estate.

In April 2012, Respondents filed their accounting, or detailed financial and 

transactional information, regarding the nonprobate transfers. Respondents asserted 

that they had received income and assets totaling $32,365.05 and expenses totaling 

$22,267.91. They stated that, after deducting the expenses from the income and 

assets, they used the remaining funds to pay off the loan on Merriott's residence. 

Respondents further stated that the estate was "void of cash" and that they had incurred 

a new mortgage on Merriott's residence to a third-party bank in the amount of 

approximately $50,000. Appellant filed a response, in which it disputed the amount of 

Respondents' claimed income, assets, and expenses.

The probate court held a hearing on Appellant's motion for a judgment on its 

petition for accounting. Following the hearing, the court entered its judgment finding 

that Appellant had an unpaid claim of $164,279.10 plus interest from September 17, 

2010, against Merriott's estate and that the estate was insufficient to pay Appellant's 

claim and the expenses of administration. The court further found that Respondents 

had received personal property, three bank accounts through transfer on death 

designations, rental homes that were transferred to them through beneficiary deeds and 

later sold by them, Merriott's residence that was transferred through a beneficiary deed, 

and assets transferred under the "Affidavit to Establish Title of Distributees of Shirley J. 

Merriott." 
6

The court stated that Appellant was requesting that it be awarded the sum of 

$53,154 from Respondents based upon the value of these transfers. The evidence at 

trial showed that the requested amount included, among other things, $30,000 in equity 

from Merriott's residence, which Appellant had valued at $80,000 and which was subject 

to a mortgage of approximately $47,000. The court rejected the asserted $80,000 value 

and found that the value of Merriott's residence was only $50,000. The court subtracted 

the asserted $30,000 in equity from the $53,154 that Appellant was trying to recover. 

The court concluded that Appellant was entitled to recover only $23,154. 

The court stated that the "equitable remedy" to satisfy this amount was to order 

Respondents to list Merriott's residence for sale for not less than $50,000. The court 

ordered that, once the property was sold, Respondents were to distribute the sale 

proceeds first to the third-party bank to pay off its approximate $47,000 mortgage, and 

then to Appellant to satisfy its claim under Section 461.300. Appellant appeals.

STANDARD OF REVIEW

We will affirm the probate court's judgment unless there is no substantial 

evidence to support it, it is against the weight of the evidence, it erroneously declares 

the law, or it erroneously applies the law. In re Estate of Hayden, 258 S.W.3d 505, 508 

(Mo. App. 2008) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). Two of 

Appellant's three points concern the interpretation of Section 461.300. The 

interpretation of a statute is a question of law, which we review de novo. Id. 

ANALYSIS

In Point I, Appellant contends the probate court misapplied the law regarding the 

proper remedy under Section 461.300 when it ordered Respondents to sell Merriott's 
7

residence and give Appellant any sales proceeds remaining after the mortgage to the 

third-party bank was paid. Appellant asserts that Section 461.300 provides for the 

recovery of the value of the property received in the nonprobate transfers and for the 

personal representative to administer the recovered sums as part of the decedent's

estate. We agree.

The use of various nonprobate transfers can result in a probate estate having 

insufficient assets to pay allowed claims against the estate. In Section 461.300, the 

legislature provides a mechanism for recovering the value of such nonprobate transfers 

under certain circumstances to satisfy some or all of these claims. Section 461.300.1 

provides, in pertinent part:

Each recipient of a recoverable transfer of a decedent's property 

shall be liable to account for a pro rata share of the value of all such 

property received, to the extent necessary to discharge the statutory 

allowances to the decedent's surviving spouse and dependent children, 

and claims remaining unpaid after application of the decedent's estate, 

including expenses of administration and costs as provided in subsection 

3 of this section . . . . No proceeding may be brought under this section 

when the deficiency described in this subsection is solely attributable to 

costs and expenses of administration.

A "recoverable transfer" is defined, in pertinent part, as "a nonprobate transfer of a 

decedent's property under sections 461.003 to 461.081 and any other transfer of a 

decedent's property other than from the administration of the decedent's probate estate 

that was subject to satisfaction of the decedent's debts immediately prior to the 

decedent's death[.]" § 461.300.10(4).

The purpose of Section 461.300 has been described as follows:

In summary, this statute allows a person entitled to certain statutory 

allowances and, more often, creditors, to reach out and recover the value 

of assets formerly owned by a decedent but that have not been made a 

part of the probate estate. Certain recoverable transfers, most notably 
8

transfers to a trust, beneficiary deed conveyances or jointly held property, 

can be pulled back into probate and then used to pay these obligations. . . 

. This remedy is distinct from a discovery of assets action that would seek 

to retitle assets outside of a probate estate that allegedly should be part of 

the estate ab initio. 

Robert J. Selsor, Fattening Up the Skinny Estate -- The Non-Probate Transfer Statute's 

Remedies for Pursuing a Decedent's Assets, 67 J. Mo. B. 286, 286 (Sept.-Oct. 2011).

Section 461.300 does not specifically state the form of the recovery allowed. A 

review of the provisions of Section 461.300 indicates, however, that a judgment entered 

pursuant to the statute should be in the form of a money judgment in favor of the 

decedent's probate estate. Looking first at subsection 1 of the statute, we note that it 

states: "Each recipient of a recoverable transfer of a decedent's property shall be liable

to account for a pro rata share of the value of all such property received[.]" § 461.300.1 

(emphasis added). This provision requires recipients of recoverable transfers to 

account for the value of the property received, not the actual property. Second, 

subsection 2 of the statute states: "Sums recovered in an action for accounting under 

this section shall be administered by the personal representative as part of the 

decedent's estate." § 461.300.2 (emphasis added). This provision references the 

recovery and administration of sums, not property. Both subsections 1 and 2 indicate 

that the legislature intended to allow the recovery, in favor of the estate, of the value of 

the property received through nonprobate and other recoverable transfers. Recovery of 

the value of property received would be through a money judgment.

This interpretation of Section 461.300 is supported by subsection 6 of the statute, 

which states: "This section does not create a lien on any property that is the subject of 

a recoverable transfer, except as a lien may be perfected by the way of attachment, 
9

garnishment, or judgment in an accounting proceeding authorized by this section." § 

461.300.6. Section 461.300 does not create a lien because it does not directly affect 

the ownership of the property involved in the recoverable transfers. Instead, the statute 

makes the recipients of the recoverable transfers liable for the value they received when 

the estate does not have sufficient assets to discharge statutory allowances and unpaid 

claims. 

Case law also supports this interpretation. As we noted in Cook v. Barnard, 100 

S.W.3d 924, 927 (Mo. App. 2003), Section 461.300 provides "a rule of liability, not of 

ownership. It allows the estate to recover the value of non-probate assets, among other 

things, when the estate's assets (the probate assets) are inadequate to cover its debts." 

We discussed the concept further in In re Estate of Jones, 280 S.W.3d 647, 655 (Mo. 

App. 2009). In Jones, the recipients of a nonprobate transfer appealed a judgment for 

accounting allowing the estate to recover a money judgment for as much of the value of 

the transfer needed to satisfy the State's claim for reimbursement of the decedent's

Medicaid benefits. Id. at 649-50. In rejecting the recipients' claim that the State's 

attempt to recover under Section 461.300 expanded the definition of "estate" by 

bringing the transferred asset into the estate, this court explained: 

A proceeding under section 461.300 is not an action to bring nonprobate 

assets into the probate estate, because the substance of section 461.300 

"is a rule of liability, not of ownership." Cook v. Barnard, 100 S.W.3d 924, 

927 (Mo. App. 2003). Instead, a proceeding under section 461.300 allows 

the decedent's estate to recover the value of nonprobate assets when the 

assets already in the estate are insufficient to cover the claims of the 

decedent's creditors. Id. . . . [T]he judgment recovered in a section 

461.300 action for accounting is a monetary judgment for the value of the 

nonprobate asset, which becomes part of the decedent's estate as defined 

by section 472.010(11). This monetary judgment is then distributed by the 

personal representative, just as all other assets in the estate are 

distributed.
10

Id. at 655 (emphasis added).

The confusion regarding the proper remedy under Section 461.300 arises 

because the statute describes the suit as an "action for accounting" and does not 

explicitly state the form of recovery intended. As one commentator explained: 

Section 461.300.2 allows for a cause of action known as an "action 

for accounting." This is confusing because an action for an accounting is 

also a well-known action seeking detailed financial and transactional 

information from various fiduciaries. But they are obviously not the same. 

This action for accounting seeks recovery of a money judgment.

Selsor, supra, 67 J. Mo. B. at 288 (emphasis added).5 

In this case, the court's judgment indicates that it found the value of the 

recoverable transfers to Respondents to be $23,154,6and that Appellant was entitled to 

this amount because of its unpaid claim of $164,279.10 against Merriott's estate. 

Instead of awarding the estate a money judgment for $23,154 to discharge Appellant's 

claim, however, the court ordered Respondents to sell Merriott's residence for at least 

$50,000, pay off the approximately $47,000 mortgage to the third-party bank, and give 

Appellant any remaining sale proceeds. This was error. The court should have entered 

a money judgment in favor of Merriott's estate and against Respondents in the amount 

of the value of the recoverable transfers, to the extent necessary to discharge 

Appellant's unpaid claim against the estate. Point I is granted.

 

5 We recognize that the court in Hayden, 258 S.W.3d at 507, affirmed the probate court's holding that the 

decedent's estate could recover certain real estate under Section 461.300 for the purposes of satisfying 

creditors' claims against the estate. The issues on appeal in that case, however, did not concern the form 

of recovery but instead the right of recovery. Id. Consequently, the court neither addressed nor decided 

whether recovery of the actual property, as opposed to a money judgment for the value of the transfer, 

was the appropriate remedy under Section 461.300.

 

6 We address whether this value is correct in our discussion of Point II, infra.
11

In Point II, Appellant contends the probate court erred in valuing Merriott's 

residence. In its judgment, the court found that Merriott's residence was transferred to 

Respondents by beneficiary deed. Hence, it was a "recoverable transfer" under Section 

461.300.10(4). With regard its value, the probate court found that, after Merriott's death, 

"the real estate market suffered a down turn in value and the value of real estate 

received by [Respondents] sustained a decline in value through no fault of [Appellant] or 

[Respondents]." Therefore, the court rejected the Appellant's asserted value of $80,000 

for the residence and assigned it a value of $50,000.

Appellant argues that the court erred in valuing the residence as of the date of 

trial rather than the date of its transfer to Respondents, which was Merriott's death on 

March 5, 2008. Section 461.300 does not explicitly state the time for valuing 

recoverable transfers. Nevertheless, because Section 461.300.1 provides that 

recipients of recoverable transfers are "liable to account for a pro rata share of the value 

of all such property received," (emphasis added), the implication is that the value of the 

property is determined at the time it is transferred to the recipients, which is the date of 

the decedent's death.

One commentator explained why practical reasons support such an 

interpretation: 

Valuation of a transfer would seem to be straightforward if the 

transfer involves liquid funds. But a transfer involving a volatile asset may 

raise other issues, including the time for fixing the value of the asset and, 

of course, disputes over its value. For example, stock and land values 

can change dramatically during a recession and the value at the owner's 

death may vary greatly from the value six months before death or on the 

day of a later accounting action trial. Arguably, value should be 

determined at the time of the transfer -- the date of death -- since 

§ 461.300 is primarily focused on that event. The only temporal reference 

in the statutory definition of a "recoverable transfer" is to the time 
12

"immediately prior to the decedent's death." It follows that focusing on the 

value of a transferred asset at that instant for purposes of gauging the 

value for a money judgment against a transferee is the only logical answer 

to this question.

Selsor, supra, 67 J. Mo. B. at 290 (footnote omitted). 

Indeed, there are two provisions in Section 461.300 that reference the time 

"immediately prior to the decedent's death." As noted, the definition of "recoverable 

transfer" includes "any other transfer of a decedent's property other than from the 

administration of the decedent's probate estate that was subject to satisfaction of the 

decedent's debts immediately prior to the decedent's death." § 461.300.10(4) 

(emphasis added). Additionally, Section 461.300.8 refers to the same time period: 

The recipient of any property held in trust that was subject to the 

satisfaction of the decedent's debts immediately prior to the decedent's 

death, and the recipient of any property held in joint tenancy with right of 

survivorship that was subject to the satisfaction of the decedent's debts 

immediately prior to the decedent's death, are subject to this section, but 

only to the extent of the decedent's contribution to the value of the 

property.

(Emphasis added.) Because these provisions indicate that the focus of Section 461.300 

is on property that could have been used to satisfy the decedent's debts "immediately 

prior to the decedent's death," the time for valuing such property should be the date of 

the decedent's death.7

The circumstances of this case demonstrate why the value of recoverable 

transfers should be determined at the time the property is transferred to the recipients. 

 

7

If these assets had been included in the probate estate, they would have been valued as of the date of 

the decedent's death. Several sections of the Probate Code explicitly provide that the relevant time for 

valuing estate assets is the date of the decedent's death. See, e.g., §§ 473.017.1(4), 473.233.2, 473.793, 

473.797, 473.800, and 474.163.4. When interpreting statutes, "'it is appropriate to take into consideration 

statutes involving similar or related subject matter when such statutes shed light upon the meaning of the 

statute being construed, even though the statutes are found in different chapters and were enacted at 

different times.'" Jones, 280 S.W.3d at 654 (quoting Lane v. Lensmeyer, 158 S.W.3d 218, 266 (Mo. banc 

2005) (internal quotations omitted)). 
13

There was evidence at trial that the fair market value of the property as of Merriott's 

death on March 5, 2008, was $80,000. Trial did not begin until October 2011, and was 

not concluded until August 2013. As the court noted in its judgment, between the date 

of Merriott's death and the time of trial, "the real estate market suffered a down turn in 

value and the value of real estate received by [Respondents] sustained a decline in 

value." If Merriott's residence had been included in the estate, the estate would have 

had the opportunity to sell the property, possibly before it declined in value. Similarly, 

other types of property, such as vehicles, naturally depreciate over time, and any delay 

in valuing could create a windfall for the recipients. Other property might suffer damage 

or destruction during a delay. 

It is also possible that some assets, such as real estate or securities, could 

increase in value, either as a result of market forces or the recipients' efforts, during the 

delay between the decedent's death and trial. Consequently, the date that the property 

is transferred to the recipients, which is the date of the decedent's death, provides a 

clear and fair date for determining the value of the recoverable transfers. Recipients of 

such transfers would be entitled to any gain that occurs after the transfer but would also 

be responsible for any loss that occurs.

The probate court erred in valuing Merriott's residence as of the date of trial. 

Therefore, we reverse the probate court's judgment and remand the case for the court 

to determine the value of the residence as of the date of Merriott's death. Because the 

probate court has determined that the transfer of the residence to Respondents was a 

recoverable transfer under Section 461.300 and Respondents have not appealed that 

determination, the court must further determine the equity in the property as of the date 
14

of Merriott's death and include such amount in a money judgment in favor of Merriott's 

estate, to the extent necessary to discharge Appellant's unpaid claim against the estate. 

Point II is granted.8

 

8

Because we have found that the court erroneously valued the residence at the time of trial and are 

remanding the case for the court to determine the residence's value at the time of decedent's death, we 

need not address Appellant's claim in Point III that the value the court assigned to the residence was not 

supported by substantial evidence.
CONCLUSION

We reverse the probate court's judgment and remand the case for further 

proceedings consistent with this opinion.

___________________________________

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LISA WHITE HARDWICK, JUDGE

ALL CONCUR.