Probate, Wills, & Estates

What is probate?

Probate is the legal process of settling an estate after a person has died.  A petition must be filed with the court and a personal representative must be appointed.  The personal representative is responsible for the following:
  • Collection, inventory, and appraisal of assets of the person who has died.
  • Protection of the estate's assets.
  • Payment of decedent's debts.
  • Distribution of the remaining assets to the proper parties as provided by law.

When is Probate unnecessary?

There is generally no need for probate if a person dies and:
  • the person owns no real property in his/her name alone.
  • the person owns personal property in his/her name alone that is valued less than $75,000.

When is probate necessary?

  • If a person dies and owns real estate (regardless of value) either in his/her name alone or as a "tenant in common" with someone else, a probate proceeding is required.
  • When a person dies and has no real property, but has personal property in his/her name alone totaling $75,000 or more, a probate proceeding must be filed.
  • When a person passes away and has a combination of real property and any amount of personal property in his/her name alone, a probate must be filed.

If a person dies leaving a Will, is there a need for probate?

If someone dies leaving a Will (testate), it does not automatically mean that there is no need for probate.  The determining factor is how the assets were held as of the date of death.  See the answer above describing situations where probate is necessary.

When a probate is needed, it is recommended that the parties seek the advice of an attorney.

Informal Probate

Informal Probate is processed through the Probate Registrar instead of a District Court Judge.  Minn. Stat. 524.3-305 gives the Probate Registrar the authority to reject any application for informal probate for any reason.  If a Will is involved that has a survivorship clause in it, you cannot apply for an informal probate until after the time stated in the survivorship clause has lapsed.  If the Probate Registrar rejects your informal probate petition, you may need to file a formal probate petition that will be heard by a judge.

Informal probate is an unsupervised probate process that is absent of complexity and problems that need court involvement, protection, supervision, or adjudication.  It may be used when there is a need to begin the probate process in a short amount of time (i.e. stock fluctuations involved).

An informal application will not be accepted if any of the following conditions apply:
  • The estate is insolvent.
  • There are unknown heirs.
  • The original Will cannot be found.
  • There is disagreement among the heirs or devisees.
  • If there is any reason for a judge to sign an order or decree.
  • There are minor heirs or devisees
  • There is a Medical Assistance Claim
In informal proceedings, the Personal Representative is appointed by Probate Registrar to administer the estate.

After the informal probate has been fully administered, the personal representative should file an "Unsupervised Personal Representative's Statement to Close Estate" with the Probate Court.  No other forms need to be filed with the Probate Court during administration.

Formal Probate

Formal Probate matters come before a District Court Judge either as supervised or unsupervised administrations.  Formal probate is a better way to proceed if there are problems with the estate and a judge is needed to make determinations.  A formal probate should be filed if:
  • There are problems to resolve among the parties.
  • If there are ambiguous or impossible provisions in a Will that need clarification.
  • If interests of vulnerable parties (i.e. minors or creditors) need protection.
  • The validity of the Will must be determined.
  • If the estate requires supervision of complex administration procedures.
  • If proceeds of estate must be distributed differently from the terms of the Will.

What is a creditor?

A creditor is a party asserting a claim against an estate.

What is a devisee?

A devisee is a person designated by will to receive real and/or personal property of an estate.

Who are considered heirs of an estate?

Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not have a Will.

Who are considered "interested persons" of an estate?

Heirs, devisees, creditors, beneficiaries and any others having a property right in or a claim to a decedent's estate.

What Minnesota Statutes apply to a probate court?

Chapters 524 and 525, Uniform Probate Code and Probate Proceedings are the primary statutes that govern probate law.  The Minnesota Rules of Civil Procedure also apply.

What is a Personal Representative?

A personal representative (sometimes referred to as executor or administrator) is the party in charge of handling the estate of the decedent.  Personal representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in informal proceeding.  Responsibilities of the personal representative include:
  • Collection, inventory, and appraisal of assets.
  • Protection and preservation of assets.
  • Payment of taxes and debts of the decedent and their estate.
  • Links: Tax Fact Sheet and Minnesota Department of Revenue
  • Distribution of remaining assets to the proper parties as specified by law.
  • Closing the estate.
 Examples of the duties of the personal representative are:
  • Determine whether decedent left a Will.
  • Prepare a list of names, ages, addresses of decedent's heirs and devisees.
  • Compile a list of probate and non-probate assets and their value.
  • Protect and preserve assets
  • Pay taxes and debts and distribute remaining assets.
The personal representative is personally responsible for probating the estate completely and correctly, according to statute, and to bring it to a prompt conclusion.  Most estates are expected to be completed within an 18 month period.  If additional time is needed, the personal representative must petition the court for an extension.

The forms I have all say the decedent must have died less than three years ago. What if the person died more than three years ago?

If the person died more than three years ago, you must follow the procedure for Determination of Descent found in Chapter 525 of the Minnesota Statutes.

Probate Court Forms (statewide)

The MN Judicial Branch publishes some probate forms, but not every probate form. You could also get forms at law library, from a legal forms publisher, or from an attorney. You should get advice from a lawyer to decide which forms to use in your case.

Probate Court Forms (2nd District) - approved for Ramsey County District Court 
If your case is not filed in Ramsey County District Court and you want to use these forms, you MUST edit the forms for use in your county and judicial district. Check with your local Court Administration about the specific procedures for that district.

Probate Court Forms (4th District) - approved for Hennepin County District Court
If your case is not filed in Hennepin County District Court and you want to use these forms, you MUST edit the forms for use in your county and judicial district.  Check with your local Court Administration about the specific procedures for that district.
Non-Court Forms The Minnesota Legal Services State Support publishes some non-court forms, including:
Health Care Directive Fact Sheet & Form
Power of Attorney Fact Sheet & Form

The MN Attorney General's Office also publishes some non-court forms, including:
Health Care Directive Form (.pdf)
Power of Attorney "Short Form" (.pdf)
Revocation of Power of Attorney Form (.pdf)

A trust is an arrangement to hold assets for the benefit of another. Title to the trust assets is held by the trustee, who has the duty to administer and distribute the trust assets for the benefit of the beneficiary. Trusts are usually established by a written document signed by the trustor, or person who creates the trust. Most of them are private agreements between the trustor and trustee. Some are supervised by the court, meaning the court approves the selection of the trustee and approves the accounts of the trustee. The trustee itemizes receipts and disbursements.

There are many kinds of trusts. The most common ones include:

  • Discretionary Trust: a trust that grants a larger amount of discretion to the trustee to distribute the trust income or principal to the beneficiary.
  • Inter Vivos Trust: a trust that is created by a transfer during the trustor's (creators') lifetime. This is most commonly referred to as a living trust.
  • Irrevocable Trust: a trust that cannot be revoked or amended.
  • Revocable Trust: a trust that can be revoked or amended.
  • Supplemental Needs Trust: a trust established for the benefit of a disabled person to supplement the government benefits received by the beneficiary.
  • Testamentary Trust: a trust created pursuant to the terms of a will and takes effect at the time of the trustor's death.
Rules & Laws

The following is a list of some of the laws and rules that relate to Probate cases. We encourage you to talk with a lawyer to get advice on how the laws and rules may affect your case. Learn more about Laws, Rules & Legal Research.