Wills, Trusts And Probate FAQ's

What is "probate"?

"Probate" is the legal process of paying a person's debts and expenses and distributing the remainder of the person's estate to those individuals designated by the deceased person's will or according to the provisions provided by Minnesota probate law.

What or who is a "decedent"?

A decedent is the term used when a person has died.

What is an "estate"?

The term "estate" is used to describe the assets and property owned by the decedent at the time of death.

What is a "will"?

A will is a document that tells the court, your heirs, and any other interested party, who gets your estate when you die. You may also name the person or persons you want to appoint to administer your estate. The individual or individuals you name are your "personal representatives". If you have young children, you may also name a guardian to care for your children and a trustee to manage their finances.

What is a "living will"?

The term "living will" is often used to describe a "health care directive" which allows you to appoint someone to make health care decisions for you if you become unable to make or communicate the health care choices you prefer.

Although the health care directive can designate your preferences about issues regarding surgery, nursing home care, medications, or organ donation, the health care directive is often used to tell your representative and medical staff which medical procedures you do not want performed, a common example is having your life sustained by use of a respirator when your body cannot keep you alive on its own. These decisions should be discussed with your family and your physician.

How long is a will valid?

A will is valid until it is changed or revoked. This requires a review of your will every few years or after major life events to be sure your will is up-to-date. Major life events may include:

  • Marriage or Divorce
  • Births or Deaths in the family
  • Changes in the kind or value of the property you own
  • Death or relocation of your personal representative or designated guardians
  • Your move to another state

If you experience any of these circumstances, you should schedule an appointment with an attorney to review your will to make certain the document will carry out your wishes.

I have a will. Does that mean my estate does not need to go through probate?

The lawyer-like answer is "it depends." Probate determines whether your will is valid. Once the will is determined to be valid, your estate must still be probated to pay your expenses and distribute your remaining estate. If there is no will, then the court must determine who receives your property according to Minnesota probate law.

What property does not need to be probated?

Property that is not subject to the probate process includes any property owned in joint tenancy, jointly held bank accounts, life insurance policies payable to a specific beneficiary, pension benefits payable to a specific beneficiary, and certain other payable on death accounts. In most circumstances, the law also allows the transfer of a motor vehicle without probate.

Many joint assets, though, cannot simply be transferred upon a person's death. You should contact an attorney to determine what forms may be necessary to transfer legal title to the property so that your ownership interest is valid and perfected.

How much does it cost to probate an estate?

The cost depends on the facts surrounding each estate. The most common expenses associated with settling the estate include:

  • The cost of funeral or cremation services
  • Copies of the death certificate
  • Attorney fees
  • Court fees
  • Accounting services
  • Notices to creditors and interested parties
  • Real estate transfer fees
  • Personal representative fees

All of these fees must be paid from the estate before anything is distributed to the heirs.

How do I know whether to choose formal or informal probate?

How do I know whether to choose formal or informal probate? This is a decision that you should make after consulting with your attorney. There are a number of factors to be considered in choosing the type of probate appropriate for the decedent's estate.

Among those factors are:

  • The size, nature, and value of the estate
  • The complexity of the issues in probating the estate
  • Whether there are disputes among the heirs
  • The number, type, and debt owed to creditors
  • Whether real estate is involved
  • The lack of a personal representative
  • Insolvency of the estate

Is there more than one type of probate?

Yes. There are two: formal and informal. Formal probate is supervised by the court. Informal probate is unsupervised. In either case, certain documents must be filed with the court to ensure the probate process was carried out in a legitimate fashion.