Is Probate Bad? Should Probate be Avoided?

In Minnesota, an estate will need to go through probate if: 1) the deceased owned real estate – of any value — in his or her name alone or 2) the deceased owned personal property in his or her name alone in excess of $50,000 in value at the time of death.

Critics of probate say that it is expensive, takes too much time, and is public. Certainly probate records are public records and are available to anyone who wishes to see them.

However, the most oft-cited complaint about probate is that it is costly. The “costly” reputation comes from the fact that – in some states – attorneys are paid a percentage of the decedent’s assets. Of course, whether the percentage yields a large number depends on the size of the estate. In Minnesota, attorneys are paid for the time actually spent on the probate matter.

Probate does take some time, however. Informal probate takes six months or longer in Minnesota, but is cheaper than formal probate because there are no probate court hearings and limited court involvement. Informal probate is allowed in Minnesota if, for example, the Will language is clear, there are no disgruntled heirs and there are no title problems with the real estate. If there’s any sort of issue, the probate will be formal.

There are various ways to avoid probate, but having a Will does not avoid probate. Indeed, a purpose of probate is to determine that the Will presented to it is valid.

Moreover, real estate can trigger a probate action in each state where the deceased owned real estate solely in his or her name. Persons wishing to avoid probate in their home state or in other states where they own real property may do so by owning the property jointly with another person (so-called “joint tenancy with a right of survivorship”) or by placing the real estate in a revocable living trust.

To avoid probate triggered by the $50,000 threshold in Minnesota for personal assets, Minnesotans should not be the sole owner of the bulk of their assets. Assets escape probate in Minnesota if they are held in a revocable living trust, a “payable on death” account, a “transfer on death” account, as a “transfer on death deed”, or in joint tenancy with a spouse, child or other person. Retirement accounts and life insurance policies that name beneficiaries (that is, beneficiaries other than the decedent’s “estate”) are also assets that do not trigger probate.

Of course, beneficiaries care about the time involved with probate because they want to know: “When will I get my money?”  The more complicated the estate, the longer it takes. Particularly if there are some conflicts, it is best if the personal representative doesn’t distribute assets until all expenses have been paid and the court has approved “the final account”. A partial distribution may be made earlier if it is clear that the estate has sufficient assets to cover all the bills. Under Minnesota law, creditors are given a period – usually four months – to file claims.

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