What is Probate?

iStock_000004014203SmallHave you seen the ads that encourage you to take steps to avoid probate?

Probate in Minnesota does take some time and does cost some money, but typically it’s not the legal equivalent of a root canal.

Probate is a Court-directed process for paying the deceased’s debts and taxes, and then transferring the remaining assets to the deceased’s beneficiaries.

When a Will is presented to the Court, the Court determines whether the Will is a valid Will. Then the Court appoints someone to act as the Personal Representative to administer the deceased’s estate. Typically, the person appointed by the Court as the Personal Representative is the person nominated by the deceased in his or her Will.

Whether or not you have a Will has nothing to do with whether or not probate is required.

A Will enables you to nominate someone to be your Personal Representative, to select guardians for any minor children and to state who should inherit your assets.

When there is no Will, the Court will still appoint a Personal Representative, but that person will not be someone that you had a voice in selecting.

The priority for appointment is set out in Minn. Stat. 524.3-203. High on the priority list is the surviving spouse, followed by the deceased’s heirs or devisees. Heirs are persons entitled to the deceased’s property under Minnesota’s statutes of intestate succession, i.e. when there is no Will. Devisees are persons named in the Will as the recipients of the deceased’s property.

The lack of a Will means also that the distribution of your assets will follow a Minnesota-directed formula rather than one that you control. Namely, if you die without a spouse, your descendants inherit everything. If you are not survived by any descendants, then your parents inherit.

Without a Will, you’re missing the opportunity to steer some assets — even sentimental assets such as Dad’s old fishing pole — to a friend or more distant relative.

Probate is required in Minnesota when the deceased owns Minnesota real estate in the deceased’s name alone, or if the deceased’s probate assets total $75,000 or more at the time of death.

What’s not a probate asset and therefore doesn’t count toward the $75,000 trigger? Non-probate assets are assets that are jointly held, held in a revocable living trust, designated as payable-on-death or transfer-on-death assets, or assets that pass based on beneficiary designations (such as with retirement assets and life insurance). (However, if you name “my estate” as the beneficiary, you’ll trigger probate.)

Minnesota probate laws apply to persons who died while they were residents of Minnesota. Minnesota probate laws also apply to non-residents who owned Minnesota real estate at the time of the non-resident’s death. Real estate is probated in the state where it is located.

©2016 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