Founding Attorney
Probate is the legal process of settling your estate – paying your debts and distributing your property – after you die. If you have a will then you should have appointed a personal representative to be responsible for handling all the matters of your estate. But, if you did not have a will, or failed to name a personal representative, the court will appoint one for you following the order of priority established by law.
While having a will is crucial for nontraditional families, please don’t make the mistake of thinking that having a will avoids probate.? Whether your estate will require probate depends on the type of property you own and how it is titled. The following types of property are not probated:
- Jointly owned real estate as it will become the sole property of the surviving title holder
- Payable on death accounts instruct the bank tol distribute the funds to the beneficiary listed on the account
- Transfer on death accounts provide that the asset will automatically transfer ownership to another upon your death
- Jointly held bank accounts are then owned solely by the surviving account holder
- Life insurance proceeds are paid according to the beneficiary you designated with the insurance company
Property not in any of the above categories, not in a trust, or that is owned solely in your name is subject to probate.
What happens if you have probate property?
Once it is determined that probate is necessary, your “personal representative” (if there is a will) must first decide whether a formal or informal probate process is required. Then the personal representative files the appropriate application with the probate court in the county where you lived at death. Upon determining that the application is complete, the probate registrar officially appoints the personal representative. Your personal representative must send notices of appointment to all interested persons, take possession or control your property, pay creditors, distribute assets and close the estate.
I’ve heard many of my colleagues state that probate in Minnesota is not a big deal as it’s not too expensive and doesn’t take too long. While this may be true for my “traditional” clients, it is not true for my nontraditional clients. Current probate laws only protect those considered to be in “traditional” relationships. So, if you would like to have control over who gets your stuff, please be sure that you 1)? review and update your beneficiary designations on a regular basis; and 2) get a valid will.