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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 $50,000.
    Form:    
         Affidavit of Collection of Personal Property Word PDF

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 $50,000 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.  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.

Informal Probate Forms:    
     Informal Probate (with a Will)  Word PDF
     Informal Probate (with no Will) Word PDF
     Inventory & Account Forms Word PDF
       Successor PR Word PDF

 

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.

 

Formal Probate Forms:    
     Formal Probate (with a Will) Word PDF
     Formal Probate (with no Will) Word PDF
     Inventory and Account Forms Word PDF
      Notice to Commissioner Word
      Affidavit of Service to Commissioner Word
      Notice to Spouse and Children Word

Special Administrator
A Special Administrator can be appointed by the court when the appointment is necessary to preserve the estate or to secure its proper administration including circumstances where a Personal Representative cannot or should not act.  For example, the decedent had no assets but medical records are needed.

 

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

Creditor Forms:    
     Demand for Notice Word PDF
     Statement of Claim Word PDF

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.
    Inventory & Account Forms Word PDF
  • 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.
    Formal Closing Forms Word PDF
    Informal Closing Forms Word PDF

 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.

Form:    
     Determination of Descent Word PDF

 

A Summary Administration is an option if there are only exempt assets. (homestead, personal property, family allowance)  A decree can issue immediately after court hearing with a clearance from medical assistance.  There can also be nonexempt assets under $100,000.  A decree will then issue after the claims period expires.  This is not a good option of a Personal Representative is needed to administer the estate.

Summary Administration

If a Will was kept in a safe deposit box at a bank, you may search the safe deposit box using the form below:

Affidavit in support of search of decedent's safe deposit box

Objection Forms    

Form:
Objection to Appointment of PR Word
Objection to Probate of Will Word
Objection to Distribution  Word
Objection to Final Account Word
Withdrawal of Objection Word

 

Additional Probate Resources

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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