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 is processed through the Probate Registrar instead of a District Court Judge. Minnesota Statute 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 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.