Probate Initiation
The administration of a decedent’s estate involves people, property, and paper. The first step is to determine whether the decedent had an unrevoked will and, if so, to locate the original. The will specifies the people who will be involved in the probate process. That is, typically the will nominates the personal representative of the estate and the people who are to receive the decedent’s property (called the devisees).
If the decedent did not leave a will, Minnesota law provides a method for the appointment of a personal representative and sets forth the people who will receive the estate assets (called the heirs). The priority of a person to be appointed by the court is governed by state statute. Determining the identity and location of the heirs is required regardless of whether or not there is a will because the heirs must be notified of the initiation of the probate, even if they do not receive anything under the decedent’s will.
Next, it must be decided what type of probate procedure would be best to administer the estate. The most common options are whether to proceed informally or formally. If formal administration is chosen, the type of formal probate must be decided- either supervised or unsupervised. These decisions may be the most important decisions in the entire probate. There are many factors that should be weighed. Sometimes the will specifies which type of probate procedure is preferred or mandated. If the decedent owned real property, often formal administration is required to properly convey the property. If it appears that the estate will be insolvent, it is best to proceed with a formal supervised administration so that the payment of creditors’ claims and expenses receives oversight from the court. Formal proceedings are usually required when distribution will be made to a minor. If disputes among the parties are likely to arise, obtaining the court’s approval through a formal supervised proceeding may be important. Since formal proceedings often cost more than informal proceedings, informal probates are generally preferred unless there are reasons to proceed otherwise. Counties in Minnesota also vary in their practice. A metro-area county may allow a particular probate to proceed informally, while an out-state county may not. Ultimately, it is the court that decides which type of probate proceeding will be allowed, though the court will generally defer to counsel of the nominated personal representative so long as the option is discretionary according to state law or county practice. Because there are so many factors involved, the advice of experienced counsel should be obtained.
Once it has been determined whether to proceed formally or informally in probate, an interested party to the estate (i.e., a person who has some tangible interest in the outcome of the administration) will either file an application with the probate registrar or file a petition with the probate court. Usually, this is done by the person seeking to be appointed as the personal representative.
A copy of the notice of hearing on the petition or application for the probate and appointment of the personal representative must be provided to all heirs, whether or not they are named in the will, and to all devisees, those named in the will to receive assets. If there is a charitable beneficiary, Minnesota’s Attorney General must receive a copy of the notice. If the decedent was born in a foreign country, the consulate of that country must receive a copy of the notice. It also may be necessary to obtain a bond. The amount of the bond and the bond premium varies depending on the value of the assets in the estate and the creditworthiness of the personal representative. There may be numerous other documents to file with the court. Once all the paperwork has been accepted by the court and any required hearings completed, the personal representative can be appointed after filing an acceptance and oath. The personal representative will be issued a document that proves that the court has appointed that person as the personal representative. This document is called the Letters Testamentary, if the decedent had a will, or the Letters of General Administration, if the decedent did not have a will.
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