Probate, Wills, & Estates

Below is an overview of the probate process in Minnesota District Courts. Read through our Definitions tab for commonly used words in probate, and read through our Frequently Asked Questions (FAQs) for more information of the probate process.

 

What is probate?
 

Probate is the legal process of getting court authority to transfer property of a person after death.  A petition or application must be filed with the court and a personal representative must be appointed by a court order.  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.
Do I need to go through probate?

The need for probate is determined by the kind of assets the person owned when they died, not whether they had a Will. The fact of having a Will alone does not affect whether probate will be required.
 
Generally, a probate case is not necessary if, at the time of death, the person:
 
  • Did not own any real estate in their name alone; and
  • Did not own personal property, in their name alone, worth more than $75,000.
If you do not need to go through probate, you may be able to collect personal property (such as money in a bank account) or transfer title to motor vehicles owned by the person who died using an Affidavit for Collection of Personal Property. For more information, see the FAQs.

When probate is needed, it is a good idea to talk to a lawyer.

There are two types of probate – Formal and Informal.
 
  • Informal probate - An informal application can be filed to ask the court to appoint a personal representative without a hearing in front of a judge in situations that are less complicated.
     
  • Formal probate - A formal petition can be filed to ask the court to appoint a personal representative with a hearing in front of a judge in situations that may be more complicated.

For more information about Formal and Informal probate, see the FAQs.
 

Codicil – A legal document that is used to make changes to an existing Will. Generally, codicils add to or supplement a Will rather than replace a Will. For a codicil to be valid under Minnesota law, it generally must meet the same requirements a Will has to meet to be valid. (For more information on these requirements and certain exceptions, see Minn. Stat. §§ 524.2-502, 524.2-506, and 524.2-513.

Creditor – Any person or business that has a financial claim against (is owed money by) the estate.

Decedent – The person who has died.

Descendant or Issue – A blood or legally adopted relative directly descended from a person, including children, grandchildren, great-grandchildren, etc.

Devisee – Any person designated (named) in a Will to receive property.

Heir – A person who is entitled to the property of a person who died intestate. A “Table of Minnesota Heirship” showing who is entitled to a share of the estate under MN law is available here.

Interested Person – A term that includes:
 
  • heirs of the decedent,
  • devisees of the decedent,
  • children of the decedent,
  • spouse of the decedent,
  • creditors of the decedent,
  • beneficiaries,
  • anyone with priority for appointment as personal representative, and
  • anyone else having a property right in or claim against the decedent’s estate that may be affected by a probate proceeding, or the fiduciary representing someone who does, such as a guardian, conservator,  trustee, or
  • other individuals as determined by the court.
If you are not sure whether or not a person or entity is or should be considered an “interested person” for purposes of starting or administering a decedent’s probate estate, it is a good idea to get legal advice. This determination can be complicated and depends on the particular matters involved in a probate proceeding.

Intestate – When a person has not made a valid Will before dying, they are said to have “died intestate.”

Joint Tenancy with Right of Survivorship – A way for two or more people to share ownership of property (real property or personal property) so that when one joint owner dies that joint owner’s share automatically transfers to the other owner(s) and is not considered part of the estate of the person who died.

Letters of General Administration (“Letters”) – Court authorization to act as personal representative when there is no Will.

Letters Testamentary (“Letters”) – Court authorization to act as personal representative when there is a Will.

Non-Probate Assets – Assets of the decedent that can be transferred to a new owner without going through the probate process. For example:
 
  • real property held as joint tenants with right of survivorship;
  • bank or brokerage accounts that are held jointly or with a payable-on-death beneficiary designation to a surviving person;
  • investment or retirement accounts or insurance policies that have a designated beneficiary other than the decedent that survives the decedent; or
  • property held in a trust.
Personal Property – All property other than real property, including tangible property such as cars, jewelry, and furniture, and intangible property such as stocks, bonds, and cash in a bank account.

Personal Representative – Formerly known in MN as the “executor,” the person who is appointed by the court to be responsible for administering the estate of a person who has died. Being named as a personal representative in a Will does not mean that you are one. A court has to authorize you to act as a personal representative by issuing Letters.

Probate Assets – Assets of the decedent that require court involvement to be transferred to a new owner. For example:
 
  • real property that is not held by joint tenants with right of survivorship;
  • bank or brokerage accounts that are not held jointly or with any payable-on-death designation to a surviving person;
  • investment or retirement accounts or insurance policies that do not have a designated beneficiary that survives the decedent; or
  • property that is not held in a trust.
Probate Registrar – The court official who oversees informal probate cases. See Minn. Stat. § 524.1-307.

Real Property – Land and buildings or other improvements permanently attached to the land (also called real estate).

Separate writing gifting personal property – A document that lists what the testator wants to have happen to specific items of tangible personal property (other than cash, coin collections, or property used in a trade/business) that are not specifically addressed in the Will.

For a separate writing to be valid under Minnesota law, it generally must:
 
  • be referred to in a valid Will,
  • must be in the testator’s handwriting or signed by the testator, and
  • needs to describe the items and the people they will go to clearly.
For more information on these requirements, see Minn. Stat. § 524.2-513.

Tenancy-in-Common – A way for two or more people to share ownership of property (real property or personal property), so that when one tenant-in-common dies, that tenant-in-common’s share passes to his or her heirs or devisees rather than to the other owners.

Testate – When a person has made a valid Will before dying, they are said to have “died testate.”

Will – A legal document describing how a person wants their property distributed after they have died. In order to be valid under Minnesota law, a Will generally must:
  • be in writing;
  • signed by the testator (the person describing how they want their property distributed);  and
  • signed by at least two witnesses over the age of 18.
For more information on these requirements and certain exceptions, see Minn. Stat. §§ 524.2-502, 524.2-506, and 524.2-513.
 
Do I need to go through Probate?
The need for probate is determined by the kind of assets the person owned when they died, not whether they had a Will. The fact of having a Will alone does not affect whether probate will be required.
 
Generally, a probate case is not necessary if, at the time of death, the person:
 
  • Did not own any real estate in their name alone; and
  • Did not own personal property, in their name alone, worth more than $75,000.
If I don’t need to go through probate, how can I collect the property of the person who died?
If probate is not required by law, you may be able to collect personal property (such as money in a bank account) or transfer title to motor vehicles owned by the person who died using an Affidavit for Collection of Personal Property. Generally, you can use this form if:
 
  • The entire value of the estate is under $75,000;
  • The person who died did not own any real estate in their name alone or as tenants-in-common with someone else;
  • At least 30 days have passed since the death;
  • No application for appointment of personal representative has been filed with the court either by you or anyone else;
AND
 
  • The person who died had a will naming you as the person who should receive the property;
OR 
 
  • The person who died did not have a will, but you are entitled to the property under Minnesota law. Examples include:
    • You are the spouse of the person who died;
    • You are a living child of the person who died and there is no living spouse;
    • You are the living parent of the person who died, and there are no living children or spouse;
    • You are a living brother or sister of the person who died, and there are no living children, grandchildren, spouse, or parents.
    • You are otherwise entitled to the property by MN law.
Once you have completed the Affidavit for Collection of Personal Property, you can bring the form directly to any people or businesses that hold property or owe a debt that needs to be collected (such as the bank, DMV, etc.) along with a certified copy of the death certificate. This form does not get filed with the court.

If the bank, DMV, etc. has any question about whether you are actually entitled to collect the asset by law, they might require the appointment of a personal representative through a probate case with the court before distributing the asset.

If you’re not sure whether you can use this form or you have questions about how real estate is titled (joint tenancy, tenancy-in-common, life estate, in the name of a trust, etc.), it is a good idea to get legal advice.

What is Informal Probate?
Informal probate is handled by a Probate Registrar instead of a District Court Judge. The Probate Registrar can reject an application for informal probate for any reason (see Minn. Stat. § 524.3-305). Common reasons for rejection include:
 
  • The estate is insolvent (more money is owed by the estate than what is in the estate).
  • The existence or location of interested parties is unknown.
  • The original Will cannot be found.
  • There is disagreement among the heirs or devisees.
  • There are ambiguous or impossible provisions in a Will that need clarification.
  • The interests of vulnerable parties (such as minors or creditors) need protection.
  • The validity of the Will must be determined or is being contested.
  • The estate requires supervision of complex administration procedures.
  • The proceeds of the estate must be distributed differently from the terms of the Will.
If the Probate Registrar rejects your informal probate application, you may need to file a formal probate petition that will be heard by a judge.

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 to informally close administration. A court order is not issued to close the estate or otherwise approve the administration of the estate when an informal probate case is closed informally. Formal closure of an informal probate estate is available.
 
What is Formal Probate?
Formal probate cases come before a District Court Judge either as supervised or unsupervised.  Formal probate is a better way to proceed if there are complications with the estate and a judge is needed to make decisions.  A formal probate case is more appropriate if:
 
  • The estate is insolvent (more money is owed by the estate than what is in the estate).
  • The existence or location of interested parties is unknown.
  • The original Will cannot be found.
  • There is disagreement among the heirs or devisees.
  • There are ambiguous or impossible provisions in a Will that need clarification.
  • The interests of vulnerable parties (such as minors or creditors) need protection.
  • The validity of the Will must be determined or is being contested.
  • The estate requires supervision of complex administration procedures.
The proceeds of the estate must be distributed differently from the terms of the Will.
Supervised probate has specific court filings and deadlines. Check with your attorney or the court for more information.

How soon after death do I need to probate an estate?
If probate is needed, an application for informal probate or a petition for formal probate can be filed at any time after 120 hours (five days) have passed since someone has died, but no later than three years from the date of their death.

If more than three years have passed since the date of death and there has not been a probate case filed, a petition for a decree of descent must be filed in order to have the court decide who is entitled to receive any probate assets. The MN Judicial Branch does not publish forms for petitioning for a decree of descent. If you would like to make this kind of petition, it is a good idea to talk to a lawyer.
  
Where should a probate case be filed?
For a person who was a resident of Minnesota, a probate case would generally be filed in the county of their legal residence (domicile) at the time of death. See Minn. Stat. § 524.3-201(a)(1).
For a person who was not a resident of Minnesota, a probate case would generally be filed in any county where the person owned property at the time of death. See Minn. Stat. § 524.3-201(a)(2).
The question about where to file a case involves legal concepts called jurisdiction and venue. This helps the court decide who has the power under the law to make a decision about these parties and these facts. Court staff cannot apply the law to your case, so if you are not sure where a probate case should be filed, it is a good idea to talk to a lawyer.
 
What does a personal representative do?
A personal representative (sometimes referred to as executor or administrator) is the person in charge of handling the estate of the decedent. Personal representatives are appointed by a District Court Judge in formal probate cases or by a Probate Registrar in informal probate cases. Responsibilities of the personal representative include:
 
  • Determining interested parties in the estate and serving them notice of the probate.
  • Collection, inventory, and appraisal of assets.
  • Protecting and preserving the assets of the estate.
  • Paying the taxes and debts of the person who died and their estate (more information about this process is available here: Tax Fact Sheet and Minnesota Department of Revenue).
  • Distributing remaining assets to the proper parties as specified by law.
  • Following deadlines and filing requirements, if any.
  • Preparing a Final Account and closing the estate.
The personal representative is personally responsible for probating the estate completely and correctly according to Minnesota law. Most estates are expected to be completed within an 18 month period. If more time is needed, the personal representative must petition the court for an extension.
 
 
Who can be the personal representative?
Minnesota law contains a list stating who can serve as the personal representative of an estate, in order of priority (see Minn. Stat. § 524.3-203). This list is the same for both formal and informal cases, whether or not the person who died had a Will. Anyone who is under the age of 18 or has been found “unsuitable” by the court is disqualified from being a personal representative. Persons who are not disqualified to serve as a personal representative have priority in the following order:
 
  1. The person named in a Will as the one that should serve as the personal representative.
  2. The surviving spouse, if they are entitled to receive property according to the Will.
  3. Other people who are entitled to receive property under the Will.
  4. The surviving spouse, if they are not entitled to receive property according to the Will or there is not a Will.
  5. Other heirs, if there is not a Will.
  6. Any creditor, as long as 45 days has passed since the time of death.
  7. A conservator that has not been discharged, as long as 90 days have passed since the time of death, and no probate case has already been opened with the court.
People named in numbers 2-5 in the list above may have the right to nominate someone else to serve in their place or may waive their right to nominate someone to serve in their place (see Minn. Stat. § 524.3-203).

The court has ultimate authority for deciding who to appoint as the personal representative and for ruling on objections, regardless of who has priority.   
 
If I do not agree that the personal representative who was appointed should serve in that role, or I object to the Probate in some other way, what can I do?
If you object to the probate of the Will or appointment of the personal representative in an informal probate, you must file a petition stating your objection with the court. A hearing will be scheduled regarding your objection, and you will be required to give notice of the hearing to the other interested parties in the case.

If you object to the probate of the Will or appointment of the personal representative in a formal probate, you must appear at the hearing and present your objection or file a petition stating your objection.

The MN Judicial Branch does not publish forms for petitioning to object to the probate of a Will or appointment of a personal representative. If you would like to make this kind of petition, it is a good idea to talk to a lawyer.
 
I was told that I need to get “Letters.” How do I do this?
Sometimes an organization (such as a bank, life insurance company, etc.) that is holding the money or property of the decedent after their death will say that you need to show them “Letters” (Letters of General Administration or Letters Testamentary) in order to get the money or property. “Letters” are an official document issued in a probate case appointing someone as personal representative of the estate. The only way to get “Letters” is to open a probate case with the court and be appointed as the personal representative of the decedent’s estate.
However, you may be able to use an Affidavit for Collection of Personal Property in the place of “Letters” if there is no legal requirement for probate of the decedent’s estate (see the “If I don’t need to go through probate, how can I collect the property of the person who died?” FAQ above for more information).
 
If there is no Will, how do I know who is entitled to receive the decedent’s property?
If the decedent died without a Will (or “intestate”), the decedent’s heirs are entitled to receive the decedent’s property according to Minnesota’s intestacy statutes and exempt property statutes. These laws can be found in Minn. Stat. §§ 524.2-101 through 524.2-123, 524.2-402 through 524.2-404, 525.14, and 525.152. A “Table of Minnesota Heirship” showing who is entitled to a share of the estate under MN law is available here.

Intestacy law is complex. If you are unsure who is entitled to receive an intestate decedent’s property, it is a good idea to get legal advice
 
If a person who died owed me money or property, how can I ask to be paid back by the person’s estate?
If you want to be notified by the court of any orders and filings related to the estate of someone who has died because the person owed you money or property, you can file a Demand for Notice form with the probate division of the court in the county where the decedent lived at the time of their death. If a probate case has not been filed yet for the person who died, court administration will keep your request on file and then notify you if a case is opened later.

If a probate case has already been filed for the person who died, you can complete a Written Statement of Claim and either give it directly to the personal representative or file it with the court. The personal representative will then look at your claim and tell you whether it will be allowed or disallowed. Minnesota law requires that claims be filed within a certain creditor’s claims period. This time period is usually limited to four months from the date of the Notice to Creditors issued in the case. The Notice to Creditors should be in the court file. 

If your claim is disallowed, you can either accept the disallowance or petition the court for allowance of the claim. The MN Judicial Branch does not publish forms for petitioning for the allowance of a claim. If you would like to make this kind of petition, it is a good idea to talk to a lawyer.
 
How do I know when I can close the probate case?
An unsupervised formal or informal probate case can be closed when the following things have been done:
 
  • The Notice to Creditors was published at least four months earlier.
  • The estate has been fully administered by paying, settling, or otherwise dealing with all claims that were presented, expenses of administering the estate, and estate and other taxes.
  • The assets of the estate have been inventoried and distributed to those who are entitled to them.
  • A copy of the Unsupervised Personal Representative’s Statement to Close Estate has been sent to everyone who received a distribution from the estate, as well as to all creditors or others with a claim that has not been paid and is not barred. A full written account of the administration must also be given to anyone who received a distribution from the estate.
Closing a supervised formal estate involves different steps, including completing and filing an Inventory and Final Account, petitioning to have the court formally close the estate, and getting discharged by a court order.
 
As a spouse or child, do I have rights beyond what is in the Will?
A surviving spouse and children of the person who died have certain statutory rights to property in the estate, even if the will says something different. See Minn. Stat. §§ 524.2-201 through 524.2-215, 524.2-301, and 524.2-402 through 524.2-404.

If you feel like you may be entitled to property beyond what you were given in a Will, you should get some legal advice.
 

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)
 
Wills and Trusts: Because estate planning is a complicated area of law and every person’s situation is unique, it is best to get help from a lawyer with drafting a Will and/or Trust.

The MN Judicial Branch does not publish forms related to creating or administering a trust. Because estate planning is a complicated area of law and every person’s situation is unique, it is best to get help from a lawyer with drafting a trust.

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.

Estate & Elder Law Services - Volunteers of America (MN) - Legal help for seniors and people with disabilities on sliding-scale fee basis. Other clients pay the regular private rate.

MN Attorney General’s Office - Probate and Planning: A Guide to Planning for the Future

Wills, Probate & Trusts - LawHelpMN.org - Legal information for non-lawyers, including helpful legal fact sheets and other resources.

Driver and Vehicle Services – Transferring Vehicle Ownership - Information about how to transfer ownership of a vehicle after someone has passed away.

MN Department of Revenue – Tax Issues for Personal Representatives - Information about the basic federal and state tax duties and responsibilities of the personal representative of an estate.