When a loved one passes away, the days, weeks, and even months that follow are inevitably grief filled. Understandably, the practical and legal ramifications of your loved one’s death are probably not at the forefront of your mind. If you were named as the Executor of the estate in the decedent’s Last Will and Testament, however, your loved one is counting on you to be able to put aside your grief to the extent necessary to handle administering his/her estate. If you have never administered an estate, you may know very little about the probate process which is why you should consider retaining the services of an experienced Minnesota estate planning attorney to help you. To get you started though, the estate planning attorneys at German Law have compiled some commonly used probate resources for the Bemidji, Minnesota area.
Probate for the Beginner
Unless you have been in charge of probating an estate before, you probably have only a vague idea of what probate is and what the process entails. When a person dies, property and other assets owned by the decedent are typically left behind. Those assets make up the decedent’s estate. Probate is the name of the legal process that ensures a decedent’s estate assets are identified, located, secured, and eventually transferred to the intended beneficiaries and/or legal heirs of the estate.
Although most people associate the concept of probate with distributing estate assets, probate serves other functions as well, such as authenticating the decedent’s Will (if one was left behind), evaluating and paying creditor claims, and ensuring that taxes owed by the estate are paid. If the decedent executed a Will prior to his/her death, the person named as the Executor in that Will becomes the administrator of the estate and oversees the probate process. In addition, the terms of that Will govern the distribution of the estate assets. Conversely, if the decedent died intestate, or without a Will, a family member or close friend typically petitions the court to be appointed the Personal Representative of the estate and the Minnesota intestate succession laws dictate how the estate assets are distributed at the end of the probate process. To eliminate confusion, the generic term Personal Representative (PR) is frequently used to refer to either an Executor or a Personal Representative.
To learn more about the probate process, navigate to the American Bar Association website where you will find a section on “The Probate Process” that may be helpful. In addition, you will find some general information on the probate process on the “Probate, Wills, and Estates” section of the Minnesota Judicial Branch website.
Court Resources for the Executor or Personal Representative
Probating even a relatively simple estate can be a time consuming and emotionally exhausting process. If the estate involves valuable and/or complex assets, or if the estate becomes involved in litigation, a Personal Representative can begin to feel overwhelmed and may make costly mistakes. For these reasons, most PRs retain the services of a probate attorney to assist them through the probate of the estate. If, however, you choose to proceed pro se, or without legal representation, you will need to know a few basics before you get started. For example, probate usually takes place in the county in which the decedent was a resident at the time of death. In this case, if the decedent was a resident of Beltrami County, Minnesota, at the time of his/her death you would initiate the probate process in the Beltrami County District Court which has jurisdiction over probate matters throughout the county. Even though you are not an attorney, you will be expected to be familiar with the applicable court rules and established procedures. In addition, you may find some assistance on the Self Help Centers page of the Minnesota Judicial Branch website as well as on the FAQ page of the Probate, Wills, & Trusts Section of the same website. Finally, you will find a limited number of probate related forms on the Forms section of the website as well.
Finding the Right Attorney
If your loved one’s estate requires formal probate, or you are unsure how to proceed with the probate process, retaining the services of an experienced estate planning attorney is your best option. Not only can an attorney guide you through the process, allowing you to focus on grieving, but having an attorney on your side also dramatically decreases the possibility of making a costly mistake. A good place to start is with the American Academy of Estate Planning Attorneys website. The AAEPA is a national organization of attorneys who have chosen to focus their practice on legal issues related to wills, trusts, and estates. Membership in the AAEPA signifies that an attorney has proven experience in the areas of estate planning and/or elder law. In addition, the Minnesota State Bar Association’s Find a Lawyer service may be helpful as well.
Personal Representative Resources
As the Personal Representative of the estate you will have numerous duties and responsibilities throughout the probate process. To get the probate process started you will need to file the appropriate petition with the Beltrami County District Court. When you file the petition you will need the original copy of the decedent’s Last Will and Testament along with a certified copy of the death certificate. You may obtain certified death certificates from the Minnesota Department of Health. You will also likely need to conduct a thorough search to make sure you have identified all real property owned by the decedent. A good place to start is the Recorder and Register of Titles page on the Bemidji County website where you can conduct a search of the county property records. As the PR you will also be responsible for notifying all creditors of the estate that probate is underway. Know creditors may be notified individually; however, for unknown creditors you must publish a notice in a local newspaper. To accomplish that requirement, you may wish to contact the Bemidji Pioneer to arrange for publication.
Paying Federal Gift and Estate Taxes
Because every estate is potentially subject to federal gift and estate taxes, you will need to be familiar with how to calculate the tax and how to prepare the tax return. The Internal Revenue Service (IRS) website offers a general overview of the federal estate tax. They also have a “Frequently Asked Questions about Estate Tax” section that may be helpful. If it turn out that the estate does owe federal gift and estate taxes, any tax obligation due must be paid before any assets are transferred out of the estate. In addition, the State of Minnesota is one of the states that also imposes a state level gift and estate tax that must also be paid before the probate process can reach a conclusion. For more information on the Minnesota tax, navigate to the Estate Tax section of the Minnesota Department of Revenue’s website.
If you have additional question or concerns regarding the probate of an estate, contact the experienced Minnesota estate planning attorneys at German Law by calling 701-738-0060 to schedule an appointment.