Probate FAQ

What Is Probate?

Probate is the legal process of settling your estate in court after you pass away. Your property is gathered and inventoried, your debts are paid, and everything remaining is divided among your heirs. Your personal representative is responsible for "probating" your will. If you do not have a will or did not appoint a personal representative in your will, the court will appoint one for you.

Probating a will begins by filing an application with the probate court. The administration of the probate is then accomplished, and probate ends when all debts and taxes are paid and all assets are distributed. If there is an unresolved discrepancy with your will, a probate judge will resolve it.

When Is Probate Necessary?

Probate laws in Minnesota apply only to the estates of individuals who were residents of Minnesota at the time of their death. Probate also applies to residents of other states who own real property in Minnesota. If you have a will, you are not necessarily avoiding probate. The need for probate depends on what property you own and whether you own it alone or with others.

REAL ESTATE. Unless real estate is owned in joint tenancy with right of survivorship or placed into a trust, it must be probated. Joint tenancy is when property is owned by two or more people who have an undivided interest in the property, and that interest continues after the other owners die. If you are a resident of Minnesota and own real estate in another state at the time of your death, the probate laws of that state will apply to that real estate. In other words, real estate is probated in the state where it is located.

PERSONAL PROPERTY. If your estate is worth less than $75,000, your heirs may be able to collect your property without going to court by using an Affidavit for Collection of Personal Property. Your personal representative is responsible for notifying all of the heirs of the property that they can collect. Heirs may not take your personal property until 30 days after your death. If your personal property exceeds $75,000 or you own real estate in your name alone, your estate must be probated.

What Items Are Not Subject To Probate?

Some kinds of property and assets do not need to be probated. These include property owned as joint tenants, jointly held bank accounts, payable-on-death accounts, life insurance proceeds with a designated beneficiary and pension benefits with a designated beneficiary.

JOINT TENANCY PROPERTY. Holding title to property in joint tenancy means that you and another person each have an undivided interest in the property and a right to own it after the other person dies. In the case of real property, this would be set forth in your title documents. When a co-owner dies, the surviving property owner must file a certified copy of the death certificate of the deceased property owner and an affidavit of survivorship with the county recorder or registrar.

JOINTLY HELD BANK ACCOUNTS. As in joint tenancy of real property, you and one or more individuals may be listed as account holders of the same financial account. If one of the joint account holders dies, the other joint account holders are given control of the money in the shared bank account.

PAYABLE-ON-DEATH ACCOUNTS. A payable-on-death account is an individually owned account in which you choose someone else to receive the funds in your account upon your death. The beneficiary, or person getting the money upon your death, has no right to these funds until your death. You set up such an account by contacting your financial institution. You may change the beneficiary at any time.

LIFE INSURANCE PROCEEDS. Your life insurance policy can indicate a specific person, called a beneficiary, who will receive your insurance proceeds when you die. You can also designate a trust to receive the proceeds and manage them for the benefit of a beneficiary.

How Do I Probate An Estate?

A personal representative starts a probate proceeding by filing an application or petition with the probate court in the county where the decedent lived at the time of death. Probate proceedings in Minnesota may either be formal or informal, court-supervised or unsupervised, and generally must be initiated within three years of the decedent's death. The services of an attorney, paid for from the estate assets rather than by the personal representative personally, are beneficial to the orderly probating of an estate.

INFORMAL. The informal probate process is initiated by filing an application with the probate court. In the informal process, the personal representative may pay debts and inheritances and may otherwise administer the estate without the court's supervision.

The probate registrar decides to either accept or reject the application. It is not a final determination if the registrar rejects the application and it does not prevent the will from undergoing formal probate proceedings.

FORMAL. Filing a petition with the court starts formal proceedings. The petitioner then must appear at a hearing. Because most people lack experience in formal probate proceedings, it is best to consult an attorney if an informal probate proceeding cannot resolve the estate. If the court finds that the petition is complete, it will issue an order for probate and appointment of the personal representative.

How Will The Estate Be Distributed To Heirs?

If there is a will, the personal representative is required to distribute the estate property according to the will. If there is no will, the estate property will be distributed according to state intestate succession laws.

The law generally provides that without a will, the estate will pass to the decedent's spouse, but in situations where either spouse has children from other marriages, the spouse's share may be less than the entire estate. If the spouse is no longer living, the estate will pass to the decedent's children in equal shares unless designated otherwise in a will.

Sometimes, relatives cannot be located or traced. In this case, assets of the estate that cannot be distributed are deposited with the county treasurer until claimed.

What Taxes Must Be Paid?

Federal law provides that you can transfer up to $2 million to someone other than a spouse before incurring federal estate tax. If you are married, you can transfer any amount of property to a spouse during your lifetime or after your death without incurring federal estate tax.

Contact A Minnesota Estate Planning Lawyer

We know that you want to pass on what you have worked so hard for to your loved ones. Let's get started on your estate plan soon. Call Coodin & Overson, PLLP, at 651-319-5180 or contact us online for a free consultation.

Located in Lake Elmo, Minnesota, Coodin & Overson, PLLP, advises and represents clients throughout the Twin Cities and Minnesota.

If you plan to contact our office for a meeting or have already scheduled a time for your initial consult, feel free to begin to fill out the probate worksheet. Getting a start on the worksheet prior to your meeting can help to expedite the drafting process.