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 STEPSIn 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
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 DIFFERENTSomeone 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.
PROPERTYProperty 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
DEBTS AND OTHER OBLIGATIONSDebts 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
THE WILLThe 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).
PROBATEIn 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.
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.
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.
EXPENSESThere 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
DETERMINING HEIRSHeirs 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 SURVIVORSSurvivors 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 INTRODUCTIONBe 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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