Probate is the time-confusing, often-laborious legal process of administering the estate of a person who has died. As a general rule, certain types of assets that were owned by the deceased in their sole name (as opposed to jointly with another person or by a trust), must go through probate. This process begins after a death and can be especially challenging for grieving families.
What to Know About Minnesota Probate
Under Minnesota law, probate must begin within three years of the decedent’s death. However, most people start the process much sooner to work towards closure and resolution. After three years, a Decree of Descent must be sought from a court to deal with probate assets (see discussion below).
Probate begins 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 then appoints a personal representative to administer the estate.
The person who the court appoints is largely determined by any existing will prepared by the decedent if there is one. In a will, a personal representative is typically named, and that person will have priority to be appointed by the court. If there is no will, the priority for appointment is determined by state law and is typically either the decedent’s spouse or one of the decedent’s adult children. Regardless of the will and its validity, a personal representative does not have authority to handle estate business until appointed by a court order.
Determining Formal or Informal Probate
There are essentially two different probate processes in Minnesota if commenced within three years of the decedent’s death: informal probate and formal probate. As the name suggests, informal probate involves less supervision, while the court is more involved in formal probate. Deciding which path to take is often a challenging decision, requiring the consultation of a knowledgeable probate attorney.
Informal Probate in Minnesota
Most Minnesota estates go through this path. Informal probate is for simple estates that do not involve issues or disputes with heirs or others entitled to inherit or to be appointed as personal representative, problems with the will, insolvent estates. In other words, informal probate is appropriate when no surprises or major challenges are expected.
To initiate this, the person seeking to open the probate files an application for informal probate with the probate court, where a probate registrar reviews it. The application will request some basic information and may include other validating documents. The applicant then has a telephone conference with the probate registrar, who either approves the application or points out problems with the application to be corrected.
Formal Probate in Minnesota
There are certain situations where judge oversight of an estate might be beneficial or where a formal probate is simply required by law. As mentioned above, these situations include:
- Disagreement between heirs or beneficiaries (or unknown heirs);
- In some Counties, when the estate contains real estate owned in the decedent’s sole name (not jointly with a right of survivorship);
- A dispute about the will’s validity and/or provisions;
- The estate could be or is insolvent or has significant debt; or
- Sometimes, when the estate has significant and/or complex assets.
To initiate formal probate, 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 with supporting materials.
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, the personal representative will be formally appointed, and probate can begin.
What Does the Personal Representative Do in a Minnesota Probate Case?
The personal representative is responsible for notifying all interested parties (potential heirs, beneficiaries, and creditors) of the probate matter and managing all the estate’s assets. They must also pay all legitimate debts of the estate (including state and federal taxes), in the order of priority according to Minnesota law.
Once the estate’s taxes are paid and debts settled and the four-month creditor claim period has expired,, the personal representative must distribute the estate’s remaining assets to the heirs under the will or as directed by Minnesota law. To achieve finality and closure, and depending upon whether the probate was informal or formal, the personal representative must file a specific document or documents with the court to close the estate. With a formal probate, the personal representative may need to file a final account for approval by the Court.
Decree of Descent in Minnesota Probate
Sometimes, a probate proceeding will occur more than three years after a death. In this case, 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 are new to the duty and may need help, even with informal probate. In these situations, an experienced Minnesota probate attorney can help consult and offer guidance through this confusing and taxing process. Call Waldron Law Offices, Ltd. today at (952) 471-0940 to learn more.