Probate may seem intimidating, particularly when estate creditors or real estate are involved. Having an advisor you trust can minimize the confusion and frustration in the probate process. Our attorneys are experienced with probate law and administration and can help ensure that estates are administered as efficiently and affordably as possible.
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Probate is the process of administering a person's affairs after they have passed on. This usually includes inventorying assets belonging to the deceased person (called a "decedent"), using those assets to pay the decedent's debts, and distributing the remaining assets in accordance with the decedent's Will. If the decedent did not have a Will, the remaining assets will be distributed according to state law.
Collection by Affidavit: If a decedent's assets total less than $75,000 and do not include any real estate, a probate may not be necessary. Instead, individuals entitled to the decedent's property by Will or under state law may be able to collect and/or transfer title to those assets by presenting an Affidavit of Collection and death certificate to the party in possession of the property.
Informal Administration: For estates involving real estate or valuing more than $75,000, a probate is generally necessary. If there are no disputes or other initial issues regarding the decedent's Will, the person nominated to administer the estate may apply. Informal probates are opened by applying to a Probate Registrar, rather than petitioning a judge. If the application is approved, the person administering the estate, called a Personal Representative (formerly called an Executor/Executrix), will then have the power to collect and inventory assets, pay debts, and distribute assets to appropriate parties. During administration, the Personal Representative provides documentation, including an inventory of assets and a final accounting, to parties with a legal interest in the matter.
Formal Administration: For estates that involve issues requiring resolution through the Court, formal administration will be necessary. Formal probate involves a judge approving the decedent's Will or determining the decedent’s heirs and appointing a Personal Representative. From that point, an unsupervised administration would proceed in mostly the same manner as an informal probate. Supervised administration means that the Personal Representative will have to obtain approval from the Court before taking many actions, such as making distributions.
Why you need an attorney: The probate process can be complex for the Personal Representative, involving many filing and timing requirements as well as decisions about what type of administration is best for a particular estate. Additionally, the Personal Representative has ethical requirements, known as fiduciary duties, that must be met in order to avoid liability to the estate’s heirs.
1) Do I need a probate?
Probates in Minnesota are generally necessary if someone has assets that include real estate or are worth more than $75,000. Assets that have beneficiary designations (e.g. life insurance, retirement accounts), POD or TOD accounts, and jointly-owned assets normally transfer outside of probate and do not count toward the $75,000 limit.
2) Is probate expensive?
Minnesota probates are relatively inexpensive when compared to other states. This is because legal fees for probates are generally billed on an hourly basis, rather than a percentage of the value of the estate. This allows small, undisputed estates to be probated economically.
3) Doesn’t probate take a really long time?
In Minnesota, probate can be completed in as little as four months. Often the length of a probate depends on how quickly assets can be located, collected, and/or sold. Disputes among heirs can also delay administration.
3) Will I have to go to court?
In many instances, no court appearance is necessary when administering estates. Estates that are insolvent, involve disputes, or have other issues that require a court’s determination or approval are generally administered “formally” and involve one or more court hearings. Simple estates can generally be administered “informally” with no court hearing necessary.
4) Will I have to pay estate taxes?
Estate taxes are generally only due in large estates. Currently, estates must have a value of over $2.1 million to owe Minnesota estate taxes and over $5.49 million to owe federal estate taxes. Estates that exceed those limits are taxed only on the portion in excess of the limit.5) Will I have to pay the deceased person’s debts? Generally, the estate is the only party liable for a deceased person’s debts. Heirs and Personal Representatives are not personally responsible unless they (a) guaranteed the debt, (b) were joint debtors on the account with the decedent, or (c) were married to and living with the decedent and the debt is for medical care.