FAQ

Read our frequently asked questions and answers below regarding Probate.

What is probate?

Probate is the process of administering the estate of a deceased person. The probate process has a few general purposes. The first is to determine how the assets of the estate will be distributed, or who will get what. The second is to resolve issues with any outstanding creditors of the deceased person. We act as a guide in helping families navigate the probate process.

What is the difference between “probate” and “non-probate” assets?

Non-probate assets are those assets which you have made a separate plan for upon your death. Assets with proper beneficiary designations, transfer on death designations, or payable on death designations are considered non-probate assets. In addition, assets that are properly transferred into a trust are considered non-probate assets. Probate assets are any assets that are left over and will either pass according to your will, if you have one, or under Minnesota Statutes, if you don’t. Our estate planning practice group can help you develop a plan to keep your assets out of probate. Call us today.

Do I need to go through probate?

Some estates have to go through probate and some do not. Whether your estate will have to go through probate depends on the assets involved. If you have over a certain amount of probate assets, your estate will have to go through probate. In addition, if you own real estate that is considered a probate asset, your estate will have to go through probate, regardless of the equity in the real estate. If you need help determining whether probate is necessary for you, please contact our probate practice group.

How do I begin to probate an estate?

The probate process is initiated by filing a petition in the county in which the deceased person resided or owned real estate. Generally, this petition must be filed within 3 years of the date of death; however, probate is often times initiated much sooner to protect the assets in the estate and get the property to the heirs. We work with personal representatives across Minnesota to help them file probate in several counties, including, but not limited to: Anoka County, Hennepin County, Sherburne County, Isanti County, Wright County, Ramsey County, and Washington County. Our probate practice group provides a step-by-step approach to help personal representatives successfully initiate and complete the probate process.

Who is the personal representative?

The role of personal representative can be pre-determined by the deceased person or may be chosen by the courts. Often times, the personal representative is appointed in a will. If there is no will in place, any interested party can petition the court to be appointed as personal representative and the court will determine who the personal representative should be.

What does a personal representative do?

A personal representative, formerly referred to as an administrator or executor, is in charge of administering the estate and following through on the written wishes of the deceased person. A personal representative will create an inventory of the estate assets and document all transactions involving the estate. A large part of the job of the personal representative is to transfer the assets from the deceased person to his or her heirs. It is important for a personal representative to work with a Minnesota probate attorney to make sure the probate process is handled properly.

What is the difference between formal and informal probate?

Minnesota provides for both a formal and informal probate process. The formal probate process has a greater level of court involvement. The informal probate process has less court involvement and is paperwork driven. Often times, the informal probate process will not even involve a court appearance. The formal probate process is preferred in the following circumstances: distribution to a minor beneficiary; unknown heirs or creditors; questions surrounding the will or trust; complicated family situations; the original will cannot be found; other issues with the will; or an insolvent estate. We work with personal representatives to determine whether formal or informal probate is the proper course of action.

How long does probate generally take?

The probate process generally takes 6 months to a year. Depending on the complexity of the estate, this process can take much longer; sometimes even several years. Because probate is lengthy, it is important to get the probate process started right away to prevent unnecessary delays.

How much does probate cost?

Between filing fees, publication costs, and attorney fees, the probate process generally costs several thousand dollars. These costs will increase greatly with a complicated estate or contesting family members.

Do I need to pay estate taxes with probate?

Probate and estate taxes are two separate issues. Probate does not determine whether you will pay estate taxes at the Minnesota or federal level. Whether you owe estate taxes upon your death depends solely on the value of your estate.

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