The death of a family member or loved one is never easy. When you also find yourself in charge of the legal process of administering the decedent’s estate, it can be overwhelming. Consulting with an experienced probate attorney is always wise to avoid making mistakes. To get you started, however, a Grand Forks attorney at German Law offers a Minnesota probate checklist for the Executor.
Probate Basics
Probate is the name given to the legal process that serves to administer a decedent’s estate. Probate performs several functions, including authentication of the decedent’s Last Will and Testament (if applicable), payment of the decedent’s debts, and transferring estate assets to beneficiaries and/or heirs of the estate. If a Will was left behind, the person named as the Executor in that Will was appointed by the decedent to oversee the probate of the estate. If the decedent died intestate, or without a Will, a family member typically volunteers to oversee probate as the Personal Representative (PR) of the estate.
Minnesota Probate Checklist
Probating an estate can be a simple, straightforward process; however, it can also be incredibly complex and even contentious. Although you are not required to work with an attorney when probating an estate, it is wise to consult with one before you embark on the probate process to avoid making serious and costly mistakes. Every estate is unique, meaning the probate process will also be unique for each estate. Nevertheless, some common steps and general information apply to the probate of most estates in Minnesota. With that in mind, the following may serve as a probate checklist for the Executor/PR in Minnesota:
- Locate estate planning documents. The first thing you should do after the passing of a loved one is to locate all relevant estate planning documents. Among the most common documents to look for are the original (ink signature) Last Will and Testament, trust agreement, life insurance policies, retirement plan documents, deeds and other ownership documents, and funeral planning documents. Check with a spouse, adult child, or the decedent’s attorney if you cannot readily locate documents.
- Conduct a preliminary categorization and valuation of estate assets. Along with formal probate, Minnesota offers two alternatives for smaller estates: Collection of Personal Property by Affidavit and Summary Administration. To determine if the estate qualifies for either alternative, you must know what assets are part of the probate estate and know the estimated value of those assets. Assets such as trust assets, accounts with a beneficiary designation and life insurance proceeds do not go through probate.
- Decide if the estate will require formal probate. To qualify for Collection of Personal Property by Affidavit a person must be a blood relative, the estate cannot include real property, and the value of the estate, minus the value of liens and encumbrances on the property, cannot be greater than $75,000. Summary Administration may be used if any of the following apply:
- The decedent left behind no probate assets, meaning only assets that bypass probate were left behind.
- The decedent’s property was destroyed, lost, or rendered valueless.
- The only property in the estate is limited to homestead property, exempt property, or the family allowance.
- The value of the gross estate (not including homestead property and exempt property) doesn’t exceed $150,000.
- Initiate the legal process of probate. To initiate probate, you will need to file a petition with the appropriate court in the county where the decedent was a resident at the time of death. You should include the original Will (if applicable) and a certified copy of the decedent’s death certificate. The court will then issue an order appointing you as the Executor/PR of the estate or set a hearing at which you will be appointed.
- Secure assets. Once you have the court order appointing you as Executor/PR, you should make sure that all estate assets are secured. That might include doing things such as physically taking control of real estate or vehicles as well as closing out financial accounts or even arranging for the continued operation of a business.
- Formally value assets. A date of death (DOD) value is needed for every estate asset. For some assets, such as real property, vehicles, and collectibles, you may need to secure a professional appraisal. Fees for professional services related to the probate of an estate are paid out of estate assets.
- Identify beneficiaries, heirs, and creditors. You need to identify beneficiaries, heirs, and creditors of the estate. Beneficiaries are named in the decedent’s Will or are part of a category (such as “all children”) in the Will. Heirs are people who would inherit from the estate under the Minnesota intestate succession laws, such as a spouse, children, grandchildren, parents, and siblings.
- Notify beneficiaries, heirs, and creditors. Notice that probate is underway should be sent to all known beneficiaries, heirs, and creditors of the estate. You may also be required to publish a notice in a local newspaper to ensure that unknown creditors receive legal notice.
- Defend the Will against any challenges. If someone challenges the validity of the Will submitted to probate, one of your jobs as Executor is to defend the Will against that challenge in the ensuing Will contest litigation.
- Review creditor claims. Creditors typically have four months from the original date of publication of the notice of probate to file a claim against the estate. All claims submitted must be approved or denied by the Executor/PR.
- Selling assets when the estate lacks liquidity. If it becomes clear that the estate lacks sufficient liquid assets to cover all approved claims, you will need to sell estate assets to satisfy the claims.
- Pay approved claims. All approved claims, along with estate taxes and probate expenses must be paid before the remaining assets can be distributed to beneficiaries and/or heirs of the estate.
- Minnesota spousal elective share. Minnesota is one of many states that allows a spouse to claim an “elective share” of the estate. The elective share entitles a surviving spouse to a percentage of the augmented estate, ranging from three to 50 percent, depending on how long the parties were married. A surviving spouse must file a petition for the elective share within nine months after the date of the decedent’s death, or within six months after the probate of the decedent’s Will, whichever limitation later expires. If a petition is filed, it means that the spouse wants to claim his/her elective share in lieu of what was left to him/her in the decedent’s Will. The court will order a hearing to determine the spouse’s elective share.
- Prepare legal documents to transfer assets to beneficiaries and/or heirs. As the Executor/PR, you are responsible for preparing all legal documents necessary to facilitate the transfer of the remaining assets to the named beneficiaries and/or legal heirs of the estate.
- Prepare a final inventory. In a supervised formal probate, you will likely be required to submit a final inventory. Even if you are not required to do so, it is always a good idea to create one.
Do You Need Help with Probate in Minnesota?
Please join us for an upcoming FREE seminar. If you need help probating an estate in Minnesota, contact the Grand Forks probate attorneys at German Law by calling 701-738-0060 to schedule an appointment.
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