When Is Probate Preferred?

Typically, people want to avoid probate, but there are times when probate is the better path.

(Probate is a legal process in which a court formally appoints a personal representative to administer the deceased’s estate. Probate may occur whether or not the deceased had a Will. When the deceased’s Will names someone to be the personal representative, the selection is considered a “nomination” – not an appointment. It is the court that “appoints” and provides the official documentation that enables the nominated personal representative to act.)

People often prefer to avoid probate because the probate process is public, takes time, costs money, and involves some hassle.

But sometimes probate may be the preferred — or required — path because the court can resolve issues, thereby reducing pressure on the personal representative. Some examples are:

Heirs fighting. When heirs don’t get along, or don’t trust each other, the authority of the court can be the “parent in the room” to keep disputes from getting out of control.

Missing heir. Sometimes the whereabouts of estranged family heirs are not known. The court can direct what to do and when to stop searching.

Heirs under age 18. The court may appoint a conservator or guardian if such persons weren’t chosen by the deceased’s Will.

When several children are in line to inherit real estate that is destined to be sold. When several children are involved, there may be “too many cooks in the kitchen” for all the decisions that are needed to sell real estate. Moreover, when it comes time for the paperwork that ultimately transfers the property to a new buyer, the spouses of the children will also need to sign! In contrast, when there is a probate process, one person — the personal representative – makes the decisions and signs all the paperwork. Thus, with probate, only the personal representative is needed to facilitate the sale, and it’s easier to divide the net sales proceeds than to distribute the real estate itself. (As an aside: A Revocable Living Trust also would ease the transfer of real estate held in the Trust, and Trust assets typically avoid probate.)

When the desire is to split all assets of the deceased based on varying percentages. Sometimes a person desires to split all of his or her assets – real estate, bank accounts, investment accounts, etc. – among a list of heirs at varying percentages. Depending on the types of assets involved, it may be easier to accomplish this goal via a probate action.

When Will validity is questionable. The court will look at the evidence and make a determination.

When a Will provision is ambiguous. Again, the court will look at the evidence and make a determination.

Insolvent estate. The court, following the priority list set out in Minnesota statutes, will state which creditors should be paid and which ones won’t be. The blessings for the personal representative are reduced liability and reduced creditor pressure.

When a loved one dies, a lawyer can help the personal representative sort out the best steps for settling the deceased’s estate.

©2017 Wittenburg Law Office, PLLC. All rights reserved.

Disclaimer: This Blog is for informational purposes only and is not to be construed as legal advice. If you have questions, please seek the advice of an attorney licensed to practice law in the state where you live. Wittenburg Law does not expressly or implicitly warrant the accuracy or reliability of any of the Blog’s contents. An attorney-client relationship is not formed by reading this Blog. If you are interested in Wittenburg Law’s representation of you, you must contact Wittenburg Law for a determination of whether your matter is one for which Wittenburg Law is willing and able to accept representation of you.

Bonnie Wittenburg, Wittenburg Law Office, PLLC, 601 Carlson Parkway, Suite 1050, Minnetonka, MN 55305 952-649-9771 bonnie@bwittenburglaw.com www.bwittenburglaw.com