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Formalities of Formal Probates


Dealing with a probate after a loved one dies is not an easy task. A probate is necessary when a Decedent owns real property in his or her own name alone, of any value, or if the value of non-real estate probate property is over $75,000. While the process may be daunting, working with the attorneys at Kennedy & Ruhsam Law can make it easier.

To commence a probate, someone must be appointed by the court to serve as the Personal Representative of the Decedent’s estate. In addition, an estate goes through probate whether a Decedent had a Will or not. Minnesota law has two types of probate administrations, informal and formal. An application for informal administration or a petition for formal administration can be filed with a court at any time after 120 hours (5 days) have passed since the Decedent’s death.

Determining whether to proceed informally or formally depends on the level of accountability needed by the court. A formal probate proceeding is commonly utilized when there are foreseeable problems or issues that may arise during the administration. Common problems include: factors surrounding devisees or heirs (minor beneficiaries, uncertainty of identifying heirs, disputes among the heirs, or there is a charitable beneficiary) and/or problems with a Will (original of the Will cannot be located, improper execution of wills, undue influence, etc.). Another decision in a formal probate is whether to have a supervised or unsupervised administration. An unsupervised, and most preferable, is one in which the personal representative acts without the supervision of the court. In a supervised administration, on the other hand, the acts of the personal representative will be under the supervision of the court. The personal representative will need to file a final account for approval by the court and absolutely no distributions are allowed in a supervised administration without a court order.

To initiate a formal probate with the court, the first steps are preparing the initial Petition and accompanying pleadings for filing with the Court. The information that is included in the Petition includes:

  • Determining whether the Decedent duly executed a Will
  • Information pertaining to the Decedent, including legal name, address, date of death (information generally included on the Death Certificate)
  • Preparing a list of all interested parties (including heirs, devisees, and other interested persons), providing the legal interest and address information for all interested parties, and also including creditors and/or demandants
  • Compiling and including a preliminary list of assets and their approximate valuations, including probate and non-probate, as well as the approximate indebtedness of the Decedent, which helps to determine if the Decedent’s estate is solvent or insolvent
  • Confirming that three years have not passed since the Decedent’s date of death
  • Confirming the appointment of a Personal Representative as named in the Decedent’s Will; or if there is no Will, then the priority for appointment as Personal Representative under the Minnesota intestacy statutes must be reviewed

Once the formal probate pleadings are prepared and filed with the Court, the Court issues a notice of hearing. This notice must be served on all interested parties and published in a legal newspaper. After the hearing and the proper notices are completed, the court will then issue the Letters to the Personal Representative. The Letters provide the authority for the Personal Representative to act. The administration in a formal proceeding will differ, as stated above, on whether the administration is unsupervised or supervised. In an unsupervised formal administration, the probate may be closed by simply filing receipts for final distribution and a closing statement. In a supervised administration, the Personal Representative will prepare and file an Inventory and a Final Account with the Court for approval. Once the Court approves the Final Account and issues its Order, the final distributions to the beneficiaries of the estate and the closing of the formal probate can be completed. At Kennedy & Ruhsam Law, we advise for every estate, whether informal or formal, or under an unsupervised or supervised administration, that an Inventory and a Final Account be completed. Preparing an Inventory and Final Account provides accountability for the heirs and beneficiaries of the estate and protects the Personal Representative from any liability acting in his/her fiduciary role.

Every estate is unique! Every county within Minnesota where a Decedent dies may have different requirements, so it is always wise to work closely with an attorney and their legal team to help guide you efficiently through the probate process.