What is Probate?

Probate refers to taking care of the estate of a deceased person. The estate is made of the property he/she owned and the debts owed. Probate can be an intimidating and confusing prospect for families to face after the death of a loved one. Our attorneys and staff specialize in guiding you through the process as compassionately and inexpensively as possible.

Probate is a proceeding in which the court assists rightful beneficiaries, listens to any objections or claims, and orders outstanding bills to be paid. It usually involves a lot of paperwork and specific deadlines for orderly distribution of assets,

Is Probate Necessary?

If the deceased does not have a Will the State of Minnesota determines who gets your property. Probate Court is used when there is a dispute about your will or a judge’s order is needed to distribute your property.

In general, probate is necessary if a deceased person’s solely-owned property has a fair market value of $50,000 or more, or if the person owned real estate solely in his or her name.

Having a will does not always avoid probate court. It depends on what property is owned by the deceased, whether the deceased owned it alone or with others and who the deceased wants to have it.

If family members disagree with the will or how the estate is handled, they can contest the will and the probate court must decide who should get the property. When there is no will and, if family members contest the handling of the estate, probate is also needed.

Assets which name a beneficiary or have another person on title (such as joint tenancy accounts, transfer-on-death stock certificates, or pay-on-death bank accounts, etc.) are considered non-probate assets. In addition, assets held by your trust are not generally subject to probate.

Additionally, property held in joint tenancy, bank accounts held joints, payable-on-death accounts and life insurance proceeds do not needs to be probated.

Probate & Wills

Having a will does not necessarily avoid probate. However, a will can expedite the process to ensure that the intended beneficiaries receive the gifts you designate.  Whether probate is required depends on what property the deceased owns and whether it is owned alone or with others.  If real estate is owned in joint tenancy with right of survivorship, or placed in a trust, it must go through probate.

If the deceased’s estate is worth less than $50,000.00, the heirs may be able to collect the property without going to court.  Contact us to assist with an Affidavit for Collection of Personal Property.  If the deceased’s personal property exceeds $50,000 or the deceased owns real estate in his/her name alone, the estate must be probated.

If the deceased has written a will, the personal representative should distribute the estate according to the will.  If there is no will, the estate will be distributed according to Minnesota intestate succession laws.  Minnesota law states that without a will, your estate will pass to your spouse, if still alive.  However, where either spouse has children from other marriages, the share of the spouse may be less than the entire estate.  If your spouse is not alive, your estate will pass to the deceased’s children in equal shares.

If no relatives are located, assets of the estate are deposited with the county treasurer until claimed.

Probate Length of Time

Several variables determine the length of a probate proceeding. Summary proceedings can take as little as six months, whereas complex estates can take years to sort out. Some estates must wait for real estate to sell, while others have cash assets which are easily distributed.  If your loved one died with a valid will, the probate process should be fairly smooth.  The court will validate the will and then make certain the property is passed on in accordance with the will’s terms and provisions.

Formal probate begins with filing a petition with the court. The petitioner must then appear in a hearing. The probate process can take longer and may be more difficult without a will or trust. The court will determine how the estate should be divided among the descendants according to law. Hiring a probate lawyer in this situation is strongly recommended to make certain the estate is appropriately divided among descendants.

Our Minnesota Attorneys can help you probate an estate or assist in planning to avoid probate. Contact a probate attorney today to schedule an appointment and plan for your future.