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Frequently Asked Questions

See also Wills Deposited with the Court.

Q:  What is Probate?

Probate is the action or process of:

  • Proving the validity of the decedent's will,
  • Determining heirs,
  • Appointing a personal representative, and
  • Handling conservatorships or guardianships of minor or incapacitated persons, all before a competent judicial body.

Q:  Do I need to go through Probate?

If the decedent owned real property, in his name alone, of any value on the date of death there will need to be some type of probate proceeding.

If the decedent owned personal property, in his name alone, in excess of $50,000 in total value on the date of death, there will need to be some type of probate proceeding.

Q:  What is a probate asset?

Real or personal property owned in the decedent’s name alone.

Q:  What is a non-probate asset?

Real or personal property owned by the decedent with a beneficiary designation or held in joint tenancy.

  • joint tenancy property – non –probate
  • payable on death  “POD”– non-probate
  • transfer on death “TOD” – non-probate
  • in trust for – non-probate
  • named beneficiary – non-probate

Q:  If I am named in decedent’s will as personal representative, do I have the authority to act as personal representative?

No. The decedent has merely nominated a personal representative.

The court has to "probate" the will; and the nominated personal representative, or an alternate, must qualify for appointment before the party can say they are personal representative of decedent’s estate.

Q:  What are “Letters”?

Letters mean either "Letters of General Administration" or "Letters Testamentary," which are the evidence that the personal representative gives to decedent’s asset holders and creditors to show that the personal representative has the authority to act on behalf of the decedent.

Q:  Can I use a Power of Attorney rather than get appointed as a Personal Representative?

No. The powers granted under a Power of Attorney stop at the moment of the decedent’s death.

Avoiding Probate

Q:  Does having a will “avoid” probate?

No.

Q:  Do I want to avoid probate?

Not necessarily.

You should consult with an attorney and disclose what your assets are, and to whom you wish to have those assets pass on to, upon your death. The attorney can offer you a variety of estate planning tools to achieve your goals such as: changing ownership on your assets, establishing a trust, arranging for a power of attorney, etc.

Q:  Is Probate expensive?

In Minnesota, each county court has a set filing fee to open a probate court file. At this time the fee is $324.00 in Hennepin County. In addition, there will be publication cost that is around $100.00. The cost of a certified copy of the “Letters” is $16.00.

Attorneys do NOT charge a percentage of the estate. Minnesota attorneys charge by the hour for probate work.

Wills

Q:  What is a will?

A will is a written declaration of how you want your property to pass on, upon your death.

Q:  When does a will take effect?

A will needs to be probated by a court before it takes effect. Under Minnesota law, a will cannot be presented for probate until the decedent has been dead for 5 days.

Q:  Do I need a will?

If you do not have a will upon your death, then Minnesota has laws of “intestate succession” to determine where your property goes upon your death. If you have no problem with the way the statute would distribute your property, you do NOT have to have a will.

Intestate succession laws generally follow your blood line, spouse, children, grandchildren or a version thereof, if you have a blended family. If you choose to give some or all of your property to an entity, or to someone outside this natural flow, you should have a will to make your intentions clear.

In the event that you need to protect the interests of minors or someone with a disability, it may be imperative to have a will to provide for direction of your assets upon your death.

Q: Can I probate informally a "copy" of a will?

          No.

Attorneys

Q:  Do I need an attorney?

We recommend that you get legal advice from an attorney. The court and its staff need to remain neutral in all cases and we cannot give legal advice.

You can get a list of attorneys familiar with probate by contacting: Hennepin County Bar Association Lawyer Referral Service and Estate & Elder Law Services (Volunteers of America).

"Informal probate" is the only probate proceeding where some people choose to attempt the probate process without the advice of an attorney (pro se). The Probate Registrars who handle the informal probate proceedings cannot give legal advice or assist in the preparation of documents or the transfer of assets.

Different Types of Probate Procedures

  • Affidavit of Collection of Personal Property
  • Informal Probate
  • Formal Unsupervised
  • Formal Supervised
  • Summary
  • Descents

 

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