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Probate Law and Procedure in Minnesota:  Some basic information

MANAGING AN ESTATE

When someone has passed on, there are always details to be handled. In many cases, it is wise to complete a probate process in the court for the county in which the deceased was living or had property. Fortunately, in Minnesota we have a simplified process which reduces much of the difficulty that accompanied probates in years past.

BEGINNING STEPS
In addition to caring for the family and making the funeral arrangements, it is usually a good idea to secure the credit cards and bank books, purchase death certificates, make application for benefits, and locate a Will and any accompanying documents which exist. It is important that someone take charge of these and the other details called for by the specific situation. An attorney can help determine what else is required, and one should always be consulted.

From the beginning, it is a good idea to keep detailed records; this can help ease the record-keeping and help the attorney and accountant do their work more quickly and efficiently.

In general, someone needs to gather, itemize, and protect property, including property which had been owned individually and property held in common with others. Similarly, existing debts and claims must be determined and itemized. A professional should be consulted to determine what tax liability and reporting is involved. There will always be various other details and loose ends to be handled.

If there is a Will, this document and any accompanying documents provide instructions for much of what is to be done. But even without a Will, these first steps remain the same.

EVERY SITUATION IS DIFFERENT
Someone may have paid funeral or other expenses. There may have been a claim in progress or a claim may need to be filed on behalf of the family or the Estate. There may be a trust to distribute or children to place with a guardian. There may be a business to manage temporarily. There may be a great deal of property to collect, or very little. There may be a spouse and children or no relatives at all. There may be disagreements among family members to resolve.

It is important that someone be involved who was familiar with the person's affairs, because nothing should be overlooked.

PROPERTY
Property is a major consideration. A careful search and inventory must be completed and a rough valuation determined. It is important to determine and protect all property in which there was any type of interest -- whether as sole owner, joint owner, life estate, mortgage holder, property to be received in the future, etc.. This will include all real estate, bank accounts, cash on hand, insurance, investments, personal property, IRAs, CDs, uncashed checks, accounts receivable, family business interests, and all other types of property in Minnesota and elsewhere. The attorney will advise what to do with the items. At some point, property will be distributed as the person and the law specify. By making a careful inventory, the family can help assure that everything is handled quickly and efficiently.

DEBTS AND OTHER OBLIGATIONS
Debts must also be itemized; these will include monthly bills, family and personal debts, tax obligations, or even a county which had made nursing home payments under Medical Assistance. If there are obligations such as child support, mortgage payments, utility bills, and so on, the attorney will help determine how to handle each of these.

THE WILL
The Will is the document that gives authorization and instructions for handling burial, payments of debts, distributions of property, and perhaps other details. It may be very detailed and incorporate other documents, or it may be somewhat general and incomplete. It may name an Executor or Executrix to handle the details or leave this for the family to determine. If there is no Will, or if no person is named for this role, then a person can be named and approved by the court in a simple procedure. Whenever there is a Will, it must be located and placed in safe-keeping, along with any accompanying papers. Once the situation is studied, your attorney can determine what to do with the document(s).

PROBATE
In general, the probate is the process of collecting and distributing property and handling other details pursuant to a legal proceeding. If there is no Will, there can still be a probate.

One person (sometimes more) takes on the responsibility for seeing that the procedure is completed. This person (known as the Personal Representative) takes on the duties noted above, along with the responsibility for providing notices and filing court documents. This person is given official court approval to deal with the property and other details involved. This authority can be very broad -- even including such things as signing deeds, closing investment accounts, and temporarily operating a business.

When a probate is conducted, it is often possible to minimize the court's involvement. The court is generally not involved in the day-to-day details except as necessary or as demanded by an interested party.

EXPENSES
There may be various expenses involved in handling the estate, including the cost of funeral, purchase of death certificates, attorney and accounting services, transfer fees, court fees, costs of publishing notices, payment of the Personal Representative, and others; again this depends upon the exact situation. In Minnesota, an attorney will generally advise the Personal Representative on these and other details, and be paid from the assets of the estate.

It is very important that a close accounting be maintained from the very beginning. At various stages, an accounting must be distributed to the interested parties and filed with the court. At the end of the process, the court will release the Personal Representative provided the responsibilities have been properly completed.

DETERMINING HEIRS
Heirs must be determined, whether named in a Will, or based upon surviving relatives. But final distributions will usually not be made until the very end, in order to include all property and cover all debts and other expenses.

OTHER ISSUES FOR SURVIVORS
Survivors also need to consider such things as changing their life insurance beneficiaries, changing the ownership on real estate and on accounts and investments, filing appropriate tax returns, revising auto and homeowner insurance policies, drawing new wills, and doing other planning.

THIS BRIEF OUTLINE IS ONLY AN INTRODUCTION
Be sure to get competent legal and accounting advice to handle the details involved in your situation. This information is only intended as a guide to help you get started; there are many judgment calls and unique details involved when someone passes on. Your attorney can assist you with these details and help get things organized. Be sure to ask any questions you might have.

** ALWAYS HAVE AN ATTORNEY REPRESENT YOU IN THESE IMPORTANT AND COMPLEX MATTERS. **


GERALD HASSELBRINK, Attorney at Law
of the Minnesota Bar and United States District Court

INDEPENDENT, CONFIDENTIAL, LEGAL SERVICES
PRACTICING ESTATE AND PROBATE LAW IN CENTRAL MINNESOTA
MEMBER, REAL PROPERTY LAW SECTION OF THE MINNESOTA BAR ASSOCIATION


St. Cloud - St. Joseph, Minnesota
Phone (320) 251-0222 | (320) 363-0414

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Copyright 2009 Gerald Hasselbrink
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