What is Probate?

What is Probate?

A common misconception is that if a person has a will, their family will not need to go through the probate court upon that person’s passing. Whether or not someone has a will does not determine the need to go through the probate court. The need is determined by how the person’s assets are held and designated to be distributed at the time of their death.

What does the probate court process look like?
If you need to go through probate, one of the first things that you’ll have to determine is if you’ll be filing for formal probate or informal probate. An experienced probate attorney can held you decide which way is the best way to proceed based on individuals factors that may include: potential creditors, possible disputes, and what assets the decedent had.

Informal probate: You’ll file an application to appoint a personal representative to the probate registrar. The probate registrar has extensive training on probate matters. The registrar will review your application and the will and decide whether or not it’s appropriate to accept your application. If the registrar does not accept your application, you’ll have to proceed through formal probate. There are no court hearings if you file informally. It’s important to keep in mind that a probate registrar will sign the documents appointing you as personal representative, not a judge. An experienced probate attorney can assist you to ensure it’s okay to use a registrar and not a judge.

Formal probate: You’ll file a formal petition to appoint a personal representative to a judge. Some counties have special probate judges, other counties judges operate on a rotation. With formal probate, there is a court hearing that appoints the personal representative. In some counties, it’s mandatory to appear at this hearing, in other counties you do not need to appear unless you anticipate that someone will be objecting to your appointment. If there are no objections, you’ll be appointed as the personal representative and receive certified documents that allow you to access the decedent’s assets.

How can probate court be avoided?
The best way to avoid the need for your loved ones to go through the probate court, is by sitting down with an experienced estate planning attorney. Throughout the estate planning process, an experienced estate planning attorney should locate all of your assets and ensure that they are properly held to avoid the probate court. The attorney can assist you in beneficiary designations as well as drafting a will that is validly executed and nominates a personal representative (also known as an executor) of your estate.

The second way to avoid the probate court is if Minnesota Statute § 524.3-1201 applies to the decedent’s estate. This statute states that if the probate asset that is improperly held is not greater than $75,000 then the need to go through the probate court is avoided. Instead, a blood relative or a person with legal interest in the decedent’s property can fill out an Affidavit for Collection of Personal Property. The Affidavit allows you to recover the improperly held asset.