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When a loved one passes away, I will represent the personal representative (Executor/Executrix) through the Minnesota probate and trust administration process with the utmost compassion and understanding.

WHAT IS PROBATE?

Probate is the legal court process for paying a person’s debts and expenses and distributing a person’s property after that person’s death. In a probate matter, the person who has died is called the “decedent,” and his or her property is called the “ probate estate.” However, the definition of “probate estate” is generally a subset of the decedent’s entire estate. A decedent’s debts are paid from the probate estate and any property remaining is divided among heirs or beneficiaries, according to a Will or according to state law.

WHEN IS PROBATE NECESSARY?

Minnesota probate law applies to people who lived in Minnesota when they died and to residents of other states who owned real estate in Minnesota. Whether a matter is “probated” depends on a number of factors, including the type of property and the nature of the ownership of that property. For example, unless real estate (a home, a cabin, a farm, etc.) was transferred into a trust or was owned as “joint tenancy” with a right of survivorship, this property is subject to the probate process. If you are considering a Will, you should consult with an attorney about the ownership of any real estate and whether there are advantages to certain types of ownership.

If you do not own real estate, a decedent’s estate must be probated if the personal property is valued at more than $75,000. If the decedent’s probate estate is worth less than $75,000, the decedent’s legal heirs may be able to collect the property by affidavit, which does not require court involvement. Collection by affidavit allows for a small estate to keep estate administration costs low.

WHAT PROPERTY DOES NOT NEED TO BE PROBATED?

Non-probate assets include property owned as joint tenants, jointly held bank accounts, transfer or payable-on-death bank accounts or real property, life insurance proceeds with beneficiary designations, and pension benefits with beneficiary designations. The law also provides for transferring a car without involving probate.

Transferring joint assets does not necessarily occur automatically upon a person’s death. For example, to transfer real estate to the surviving owner, an affidavit of survivorship must be filed with the county recorder where the property is located. Other jointly held assets require filing specific forms and usually require a certified copy of the death certificate. Consult your attorney about how best to handle transfer of property at death.

WHAT DOES PROBATING AN ESTATE INVOLVE?

A personal representative is an individual or entity who is responsible for administering or “probating” the decedent’s estate. Usually, if a person dies with a Will, the decedent has nominated a personal representative in the Will. If there is no Will, or if the decedent’s Will did not nominate a personal representative, the court will appoint a personal representative from those who are nominated by the heirs to serve as a personal representative.

A person—usually the person who will be the personal representative-—initiates the probate process by filing legal documents with the probate court in the county where the decedent lived at the time of death. Once appointed by the court, a personal representative must take an inventory of all of the property owned by the estate and report that inventory to the court and to potential heirs or beneficiaries. Probate ends when all debts and taxes are paid and all assets are distributed to the people or organizations entitled to the assets.

If you would like to begin filing a probate action in Minnesota, please complete the Probate Intake Form in the Forms section of this website.

A basic estate plan should include the following documents:

• Advance Medical Directive (Healthcare directive)
• Financial Power of Attorney
• Last Will and Testament and/or Revocable Living Trust

Advance Medical Directive (Healthcare directive)

Typically, this is a two-part document. The first part provides you the opportunity to appoint someone (health care agent) to make medical decisions you when you are unable to do so as the result of a temporary incapacity (e.g., heavily medicated) or a permanent incapacity (e.g., Alzheimer’s or dementia).

The second part of the Advanced Medical Directive provides you the opportunity to give a “dying declaration” to your family and physician. This declaration tells physicians and family members whether you wish to die by natural means or whether you wish to have life-sustaining artificial assistance in the event you are in a terminal or vegetative condition. This is your opportunity to guide your health care agent into making a decision about your health care as you would do if you were able to. Although this second part of the document is optional, it is highly beneficial to your health care agent, so they feel confident in their decisions.

Financial Power of Attorney

If you are unable to manage your finances and other affairs, you will need someone to perform those duties for you. It is important to have this document prepared BEFORE you become incapacitated. It is better to have one and not need it, then not have one and need it. Without this simple document, if you became incapacitated, a Guardian/Conservator action may be required before anyone can act on your behalf to manage your finances.

Most people would prefer to designate a trusted person to fulfill these obligations, and they appoint that individual through a Durable Power of Attorney. They would name this person and identify identify any actions that person may perform. Some clients will give their agent signing powers for contracts along with financial management duties, while some will limit permissions to a financial matter only. You can decide the extent of the powers you assign your agent.

LAST WILL AND TESTAMENT (“WILL”)

A Will provides you with the opportunity to leave your assets to family, friends and charities of your choice. Wills are only effective upon our death and they do not control the disposition of assets when a beneficiary has already been named (i.e. life insurance, IRA’s, etc.). Most Wills contain a provision involving tangible personal property and/or specific bequests (e.g., gifts of real estate or cash). The residue provision governs the distribution of the remainder of your estate to the designated beneficiaries. Also, the Will names the Personal Representative (executor/ executrix) who settles the estate and your preferred Guardian for any minor children.

Wills can vary in complexity:

Simple Wills are basic Wills for married or unmarried individuals with relatively uncomplicated estate plans – those that pass all the probate assets to the surviving spouse or children.

Complex Wills provide individuals with many different options by including more complex planning tools for how your property is transferred or for limiting your tax exposure. For example, you may wish to hold your assets in trust for the beneficiary because of the beneficiary’s age or pre-existing medical condition (Testamentary Trust: a Will with trust provisions). Supplemental Needs Trusts can be incorporated into a Will if a beneficiary is receiving means-tested support, such as Medical Assistance (Medicaid).

Pour-over Wills are used when you have a Revocable Living Trust (“RLT”) as part of your estate plan. The Will simply “pours-over” to the RLT any asset not titled in the name of the RLT at death.

Having a Will does not necessarily allow you to avoid probate. If probate avoidance is a concern for you, consider a Revocable Living Trust.

REVOCABLE LIVING TRUSTS (RLT)

Revocable Living Trusts are created during life and can be amended or revoked at any time. Generally, RLT’s can be useful for: (1) asset management during the creator’s (“settlor’s”) life, (2) efficient distribution of assets at the settlor’s death by avoiding probate, and (3) avoiding your estate administration from becoming public record.

The following family situations may benefit from a RLT:

• blended families where each spouse wants his/her assets to pass to his/her respective children,
• families with minor children who would receive large inheritances if both parents passed away,
• families or individuals who may be subject to estate taxes at death,
• families with disabled children,
• families with a complex or unusual bequest,
• families who want to avoid the public record or probate, and
• families where a beneficiary may have marital, creditor, or personal problems.

Unlike probating a Will, the administration of a RLT does not become public record. Often, a RLT is created but not all assets are properly placed in the trust. In order to avoid probate, the settlor must properly funded his/her trust and ensure that no probate assets remained in his/her estate at death.

There are many factors to consider when preparing your estate plan. It is important to consult with an experienced estate planning attorney to assist you with the preparation of your estate planning documents.