Buchholz & Burke, PLLC

What is probate?

Probate is a legal process used to gather and distribute the property of a deceased person.  However, not all property passes through probate.  Broadly speaking, real estate generally is a part of the probate estate and so is most personal property and monies unless designated payable on death by the decedent during his/her lifetime. 

 

Probate can seem like an overwhelming challenge following the loss of a loved one.  However, Minnesota has a more straightforward probate process than many states.  Generally, a probate includes:

 

1.    Opening of the estate: A determination to proceed formally or informally and the opening of a court file for the probate proceedings.

2.    Appointment of a personal representative to manage the estate.

3.    Gathering of assets, payments to creditors and distributions to heirs or devisees.

4.    Closing of the estate: The court may choose to review the personal representative’s actions throughout the probate process, or choose to evaluate whether or not the estate was handled according to the decedent’s wishes and Minnesota law after the personal representative has settled the estate.  In either case, the court will close the probate after the personal representative has appropriately paid creditors and distributed the estate assets.

 

Will there be a formal or informal probate?

In Minnesota, probate (also known as estate administration) is administered by the district court or registrar in either a formal or informal proceeding.  Determining whether or not to proceed will depend on a number of factors.  A formal probate is generally required when: the estate does not have enough assets to pay creditors, there is a contested will, there are minor beneficiaries, or a will must be proven.

 

After these determinations are made, a personal representative is appointed and given either letters testamentary or letters of general administration. Letters give the personal representative the authority to use estate assets to pay creditors and distribute the estate’s assets.

 

What does the personal representative do?

Personal representatives manage the estate by paying the bills and debts of the decedent, gathering and organizing the property of the estate, and ultimately distributing the property and assets according the decedent’s will (if there was a will) or Minnesota law (if there was no will).

 

Who will be the personal representative?

The court will ultimately decide who is best suited to serve as personal representative, but are usually appointed in the following order of priority:

1.  The person nominated in 
     the decedent’s will;
2.  The surviving spouse of
     the decedent who also is 
     given property in the
     decedent’s will;
3.  Other people given
     property in the
     decedent’s will;
4.  The surviving spouse of
     the decedent;
5.  Other heirs of the
     decedent;

If no one with priority listed above wishes to serve as personal representative, a person with priority can ask the court to allow a third party to serve as personal representative.  However, in this case, the probate must proceed formally.

 

If no one with priority listed above moves the court to be the personal representative, or asks the court to appoint a third party, creditors may ask the court to be appointed personal representative after 45 days.

 

Who is going to get what?

When someone dies with a valid will, the probate estate assets are simply distributed according to the decedent’s wishes as determined by the will.

 

However, when someone dies without a will, Minnesota law governs and creates a default plan for distribution of the estate’s assets.  Under Minnesota’s laws of intestate succession, the assets are distributed as follows:

 

1.    A surviving spouse gets the entire estate if the decedent has no surviving children, grandchildren or additional descendants; OR if all of the decedent’s surviving descendents are also the descendents of the surviving spouse.

2.    If the surviving spouse and the decedent had children that are not joint children, then the spouse gets the first $150,000 of the estate plus 50% of anything beyond that.  If the estate is smaller than $150,000, the spouse gets the entire estate.

3.    If there is no spouse or if part of the estate is to pass to other heirs, then assets are distributed first to children, then grandchildren and so on and so forth.

 

In many, but not all probate estates, the personal representative must prepare an inventory of all of the assets and liabilities of the estate.  The inventory must include all property of all kinds including real estate, vehicles, other personal property, stock and bonds, bank accounts and other financial interests including any liens on such property such as mortgages.

 

In addition to the inventory, a final account must be prepared.  The final account is like a balance sheet in that it shows the assets of the estate and all administration expenses such as personal representative’s fees, attorney’s fees, funeral expenses, and distributions to any devisees.