When a family member dies an initial issue is often whether or not assets of their estate will need to go through the legal process called probate. For many estates, the court process of probate is necessary to transfer real estate or other titled assets to the beneficiaries named in the Will. If probate is necessary, the minimum length of time to collect the probate is generally at least six months but can take 1-2 years or longer.
Probate administration can vary significantly depending on the assets involved and complexity of issues involved. That said, a probate proceeding will usually involve the following:
- Petition for Appointment of Personal Representative (executor)
- Notice to Heirs and Interested Parties
- Notice to Minnesota Department of Human Services for Medical Assistance Clearance
- Sale of Estate Assets
- Payment of Estate debts and taxes
- Inventory and Accounting by Personal Representative
- Distribution of assets to heirs.
If the family member has established a properly funded revocable trust to hold his or her assets, no probate proceeding will be necessary and the successor trustee may handle the administration and distribution of the estate without court involvement.
Carlson Estate planning provides hands-on assistance with each step of the probate or trust administration process, including interpretation of estate planning documents, preparation of probate court filings and representation before the court, advice and assistance with sales and management of estate assets, collection of estate assets, ongoing business and financial interests, dispute resolution and advice and preparation of necessary financial reports and tax returns.
Frequently Asked Questions:
Q. What types of assets must be probated?
A. The need for a probate depends on the type of property the decedent owned and whether he owned it alone or with others. Property, such as real estate that is held in joint tenancy, jointly held bank accounts, payable on death accounts and property such as life insurance or retirement benefits designated to specific individuals, do not need to go through probate. All assets that are in the decedent’s name alone at the time of death will require probate.
Q. Does having a Will mean that your estate won’t have to go through probate?
A. The determining factor for probate is how the assets were titled, not whether you have or don’t have a Will. If assets are held in your name alone, then they will pass under the Will. Assets passing under a Will do require probate.
Q. Is there a procedure for dealing with a very small estate?
A. Yes. If your entire estate is worth less than $50,000 in Minnesota, your heirs may be able to collect assets by using an Affidavit for Collection of Personal Property which does no require any court involvement.
Q. How will probate assets be distributed?
A. If there are assets being distributed under the Will, the personal representative is responsible for distributing the estate property according to the terms of that Will. If there is no Will, Minnesota inheritance laws govern the distribution of the estate. The law is complex and anyone who does not have a Will should consult an attorney to determine whether the distribution that would be made under the laws of intestacy are the results you would want.
Q. Are there ways to avoid probate and should I consider that?
A. Yes, there are ways to avoid probate. If all of your assets are held in joint tenancy, have a payable on death beneficiary or are held in certain types of trusts, there may be no need for probate. Depending upon your personal circumstances, this may or may not be an advisable and/or cost effective approach. We can help you determine whether you should consider these alternatives.