Probate Law book

Probate is the legal process of administering the estate of a person who has died (a “decedent.”) As a general rule, assets that were owned in the decedent’s sole name (as opposed to jointly with another person, or by a trust), must go through probate.

By definition, the probate process takes place after a death, when the surviving family is grieving. That fact, together with the fact that most people are unfamiliar with the process, can make it especially challenging. Knowing what to expect from the Minnesota probate process can make it easier to face and navigate.

How the Minnesota Probate Process Works

Under Minnesota law, probate proceedings must be initiated within three years of the decedent’s death. In practice, most people start the process much sooner, to avoid tying up assets in probate and to achieve closure.

The first thing that needs to happen is the opening of a probate case. A probate matter is initiated by filing the appropriate documents with the court in the county where the decedent resided at the time of his or her death. The court will then appoint a personal representative to administer the estate.

The person who the court appoints as personal representative is determined in part by whether or not the decedent left a will. If there is a will, the decedent likely named a personal representative, and that person will have priority to be appointed by the court. If there is no will, the priority of appointment is determined by Minnesota law, and is typically either the decedent’s spouse or one of the decedent’s adult children.

Whether or not there is a will, a personal representative does not have authority to handle estate business until appointed by a court order.

Formal Probate or Informal Probate?

There are essentially two different probate processes in Minnesota: informal probate and formal probate. As the name suggests, informal probate involves less supervision, while the court is more involved in formal probate. How do you decide whether you need formal or informal probate? To understand, let’s discuss what is involved in each process.

Informal Probate in Minnesota

Most Minnesota estates go through informal probate. Informal probate is appropriate for simple estates in which the decedent did not own any real estate, the decedent did not have any minor children, and there are no issues in dispute and therefore court supervision is not needed. In other words, informal probate is for straightforward cases where no surprises or challenges to the administration of the estate are expected.

To initiate an informal probate matter, the person seeking to open the probate files an application for informal probate with the probate court, where it is reviewed by a probate registrar. The application will request basic information about the applicant, the decedent, the estate, and heirs and other interested persons. In addition to the application, other documents are typically required to open an informal probate matter. A packet of forms is available for informal probate without a will and informal probate with a will.

Formal Probate in Minnesota

An estate need not be excessively complex for formal probate to be the preferred option. There may be an aspect of the case that might benefit from a judge overseeing it. Common situations in which formal probate may be the better option include:

  • Disagreement between heirs or beneficiaries (such as between a new spouse and children of a prior relationship);
  • Unknown heirs;
  • Some of the heirs or beneficiaries of the estate are minor children (younger than 18) or other vulnerable parties who may need protection;
  • The estate contains real estate owned in the decedent’s sole name (not jointly with a right of survivorship);
  • A dispute as to the validity of the will;
  • The will contains unclear or impossible provisions;
  • The estate may not have enough assets to pay all of its legitimate debts (insolvency);
  • The estate has significant assets or significant debt;
  • The estate contains complex assets, such as business interests.

To initiate formal probate proceedings, a named personal representative in the decedent’s will or an interested person (someone whose rights will be affected by the administration of the estate) must file a petition for formal probate with the probate court, along with supporting documents.

The petitioner will then need to appear at a court hearing on the petition. If the court is satisfied with the information contained in the petition, it will order the appointment of the personal representative and probate administration can begin.

What Does the Personal Representative Do in a Probate Case?

The personal representative is responsible for notifying all interested parties ( potential heirs, beneficiaries, and creditors) of the probate matter, and for identifying, gathering, securing and inventorying all assets of the estate. They must also pay all legitimate debts of the estate, giving priority to certain debts under Minnesota law. While very few estates owe federal estate tax, most estates need to file an income tax return; the personal representative is responsible for filing and paying any taxes owed by the estate.

Once the estate’s taxes are paid and debts settled, the personal representative must distribute the estate’s remaining assets to the heirs under the will, or according to Minnesota law if there is no will. After all assets of the estate are distributed, the personal representative files documents with the court to close the estate.

Decree of Descent

Earlier we stated that probate proceedings must be initiated within three years of a person’s death. To initiate a probate proceeding after three years have passed, an interested party must file a Petition for Decree of Descent and supporting documents with the probate court. The matter must proceed formally, and the court will appoint a personal representative.

Most people who serve as a personal representative have never done so before, and may find that they need help with even the informal probate process. The services of a probate attorney are considered a benefit to the estate, and can usually be paid out of estate assets. An experienced Minnesota probate attorney can help the probate process go more smoothly, and often with less stress for all involved. If you have more questions about the Minnesota probate process, please contact Mundahl Law for a consultation.

Categories: Probate