The process of probating an estate can be complicated and can certainly be emotional. Attorney Daniel Savaloja has worked with clients through the probate process and has helped them navigate the complexities of the probate to ensure that a decedent’s estate is properly taken care of.
What is probate?
Probate is the legal process of settling your estate in court after you die. After your death, your property is gathered and inventoried. After your debts are paid, the remaining property and proceeds are divided among your heirs.
When you die, if you have named a personal representative in your will, the personal representative is responsible for “probating” your will. If you do not have will or if your will does not name a personal representative, the court will appoint a personal representative for the estate.
To begin the process, an application for probate is filed with the probate court. Probate can either be formal or informal. The probate ends when all debts and taxes are paid and all assets of the estate are distributed. If there is disagreement over your will, a probate judge will resolve the differences.
WHen is probate necessary?
Minnesota probate laws apply to the estates of people who were residents of Minnesota at the time of their death. Minnesota probate laws also apply to out-of-state residents if they own real property in Minnesota at the time of their death.
There are many misconceptions about the probate process. For example, having a will does not avoid probate. The need for probate depends on what property you own and whether you own it alone or with others.
- Personal Property. At the time of your death, if your estate (excluding any real estate – see above) is worth less than $75,000, your personal representative or heirs may be able to collect the property without going to court by using an Affidavit for Collection of Personal Property. However, if your value of your personal property exceeds $75,000 or you own real estate in your name alone, your estate must be probated.
- Real Estate. If you own real estate in Minnesota at the time of your death, probate laws apply. The exception to this is if the real estate is owned in joint tenancy with right of survivorship or placed into a trust.
Probate may not always be necessary if your estate consists of certain types of property. For example, in the estate planning process, you may have placed property in certain types of “transfer on death” accounts or other types of ownership that will not require probate. If you own property as “joint tenants with right of survivorship” this means that you and at least one other person own undivided interests in the property. When a co-owner dies, the remaining owner(s) take ownership of the property. Certain filings may be required to complete the process but probate will not be necessary for that type of property.
Other types of ownership that will not require probate include jointly held bank accounts, life insurance if there is a specific beneficiary or other similar type benefits with specific beneficiaries named.
How Does the Probate Process Work?
Your personal representative starts the probate process by filing petition or an application with the probate court in your county of residence (at time of death). Probate proceedings may be either informal or formal.
- Informal. After filing the initial application with the probate court, the probate registrar will determine if the application is complete. Thereafter, the registrar will issue a statement of probate and appoint a personal representative. In the informal process, the personal representative may pay debts and inheritances and may otherwise administer the estate without the court’s supervision.
- Formal. Formal proceedings begin with the filing of a petition with the court. The person making the filing (the petitioner) then appears before the court at a hearing. If the court finds that the petition is complete, the court will issue an order for probate and appointment of the personal representative. The court may also require that the personal representative post a bond or obtain bond waivers as well as other conditions before allowing the matter to proceed.
Distribution of Property
If you have a will, your personal representative will distribute the property according to instructions contained in your will. If you do not have a will, Minnesota’s intestate succession laws apply and a formula is followed for how property is distributed.
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