As Minnesota Probate Attorneys, we have compassionately assisted many families through the probate process.
When a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration where the assets of the deceased are managed and distributed. If the assets of the deceased were owned through a well drafted and properly funded living trust, it is likely that no court-managed administration is necessary, though the successor trustee needs to administer the distribution of the deceased’s assets. The length of time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court.
The probate process for each estate is unique, but usually involves the following steps:
- Filing of a petition with the proper probate court.
- Notice to heirs under the will or to statutory heirs (if no will exists).
- Petition to appoint Personal Representative (sometimes referred to as Executor or Administrator) for the estate.
- Inventory and appraisal of estate assets by the Personal Representative.
- Payment of estate debt to rightful creditors.
- Sale of estate assets.
- Payment of estate taxes, if applicable.
- Final distribution of assets to heirs.
Q: What happens if someone objects to the will?
An objection to a will, also known as a “will contest” is a fairly common occurrence during the probate proceedings and can be incredibly costly to litigate.
In order to contest a will, one has to have legal “standing” to raise objections. This usually occurs when, for example, children are to receive disproportionate shares under the will, or when distribution schemes change from a prior will to a later will. In addition to disputes over the tangible distributions, will contests can be a quarrel over the person designated to serve as Personal Representative.
Q: Does probate administer all property of the deceased?
Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries.
Certain types of assets are “non-probate assets” and do not go through probate. These include:
- Property in which you own title as “joint tenants with right of survivorship”. Such property passes to the co-owners by operation of law and do not go through probate.
- Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries.
- Life insurance policies.
- Bank accounts with “pay on death” (POD) designations or “in trust for” designations.
- Property owned by a living trust. Legal title to such property passes to successor trustees without having to go through probate.
Q: Do I get paid for serving as a Personal Representative?
Personal Representatives are reimbursed for all legitimate out-of-pocket expenses incurred in the process of management and distribution of the deceased’s estate. In addition, you may be entitled to reasonable fees for your services, which vary from location to location and on the size of the probate estate. The Personal Representative has to fulfill his or her fiduciary duties on behalf of the estate with the highest degree of integrity and can be held liable for mismanagement of estate assets in his or her care. It is advised that the Personal Representative retain an attorney and an accountant to advise and assist him with his or her duties.
Q: How much does probate cost? How long does probate take?
The cost and duration of probate can vary substantially depending on a number of factors such as the value and complexity of the estate, the existence of a Will and the location of real property owned by the estate. Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay. Common expenses of an estate include personal representative fees, attorneys fees, accounting fees, court fees, appraisal costs, and surety bonds. These typically add up to 5 to 7 percent of the total estate value. Most estates are settled though probate in about 9 to 18 months, assuming there is no litigation involved.
Q: How do I start a probate in Hennepin County Minnesota?
A probate in Hennepin County Minnesota requires that the person applying to be named as the Personal Representative (also referred to as the Executor) file a probate application with the Probate Registrar. A Probate Registrar is the person(s) who have been designated by the Probate Court to review all probate applications and make certain decisions/recommendations as to whether the application will be accepted or if additional steps need to be taken.
Q: What is required to start a probate in Hennepin County Minnesota?
In Hennepin County, the Probate Registrar will meet with the person seeking to be appointed as Personal Representative and review the required probate paperwork. There many steps that need to be taken in a probate both before and after a meeting with the Probate Registrar.
Q: Do I need to use an attorney to start a probate in Hennepin County Minnesota?
Having an experienced Minnesota probate attorney assist you should help make the probate process move in a timely and efficient manner. An informal and unsupervised probate may take between 4 to 9 months to complete, while a more complex probate may take years to complete.
If you would like to discuss your situation, please contact our firm for a free case evaluation.