When a loved one passes away, dealing with the estate can be overwhelming. It’s important to ensure that the decedent’s last wishes are respected, but where do you start? Often, probate is the required course of action. An overview of the probate process can help put your mind at ease, and assist you in making important decisions during a difficult time.
Probate is the process of settling a person's estate after death, under the supervision of a court. Probate is required whenever an estate includes any real property or personal property valued at more than $50,000 that does not pass by beneficiary designation, joint ownership, or through trust. It’s important to remember that probate may be required whether the decedent had a will, or whether he or she died “intestate”—without a will.
During the probate process, a “personal representative” will be appointed by the court. The will might also specify who the personal representative should be. The personal representative will be tasked with collecting or accounting for all of the decedent’s assets, protecting the assets of the estate until the probate process is resolved, paying any debts that the estate might have, and distributing the assets in accordance with the decedent’s wishes and the orders of the court.
There are two types of probate in Minnesota: formal and informal. Informal probate can be done when the management of the estate and the distribution of assets is fairly straightforward. Informal probate is unsupervised, meaning the court is not as involved, and the process may be started more quickly.
In some cases, the informal probate process is inappropriate. These situations are typically more complicated, and require court supervision and adjudication. Whenever the heirs include minor children, the estate is insolvent, the will is lost or ambiguous, or where the heirs disagree on how to proceed, the formal probate process is required. Court supervision can be a very positive thing, particularly if the estate owes substantial sums to creditors, or where continued court supervision can help ensure that the decedent’s last wishes are honored, though it tends to increase costs and the delay settlement of the estate.
To begin probate, you’ll need to determine whether to proceed formally or informally. To begin the informal probate process, an application must be sent to the court. The petition must include, among other things, the names and addresses of the decedent and any heirs. If there is a will, the last known original of the will must be sent to the court as well. The formal probate process can be initiated by any interested party—anyone who stands to gain depending on how the estate is divided. It requires a petition and a hearing.
In either case, it is important to ask the right questions and assemble the necessary documents to ensure that the probate process goes smoothly. The probate process can also be avoided entirely by skillful estate planning. Consider using trusts if it fits into your estate plan. See our blog post comparing wills and trusts, and for a more detailed summary, read our blog post about trusts.
Probate can be a difficult and emotionally draining time for all involved. Our attorneys are experienced, knowledgeable, and caring, and will work hard to help you plan for the future.
For more information or to schedule an appointment, call (507) 288-5567.