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Unique Estate Law Blog

Monday, September 12, 2011

The Probate Process, Part III: Initiating Probate

 

When last I blogged, I spoke about “wills.”  In this next part of this series on probate, I will explain how to initiate the probate process.

Step 1: Locate a will

This step in the journey begins with locating a will as the will contains the decedent’s instructions on the persons to be involved in the probate process.  Specifically, the will should nominate a personal representative to carry out the deceased’s wishes and provide the names of those chosen to receive assets.

Please note that these steps are largely the same whether or not a will is located.  What’s different then?  The difference is in the outcome.  With a will, the deceased’s stated wishes rule the day.  Without a will, the Minnesota State Legislature’s wishes trump any unwritten desires the deceased may have had.

Step 2: Choose the type of probate proceeding that’s most appropriate.

Next, a decision must be made as to the type of probate needed to carry out the person’s last wishes.  The types of probate are formal versus informal and supervised versus unsupervised.  We will discuss each of the types of probate in a later post in this series, but just know that the type of probate process chosen largely depends on how much court oversight may be needed in carrying out the decedent’s wishes. 

Step 3: Filing with the court

Once the decision is made as to whether to proceed formally or informally, an interested person (i.e. one who has a tangible interest in the outcome of the process) must file a petition/application with the probate registrar/court together with the original will.  Most likely, the person nominated as personal representative in the will files these documents. 

The  probate court will then review will to verify that it meets the requirements to be a valid legal will.  If there is doubt about the signature on the will, those who witnessed its execution may be forced to appear in court. As explained in prior posts, this can be avoided with the use of a self-proving affidavit.

The probate court will also look to the will to determine the deceased person’s choice for personal representative.  If there is no will, then the courts will appoint a personal representative.  The court will then issue a Notice of Probate.

 Step 4: Provide Notice of Probate

Upon receipt of the Notice from the court, the personal representative must provide that Notice to all heirs, regardless of whether they are named in the will, and to all those listed – individuals and charities – to receive assets.

The personal representative must also publish notice of the probate for two weeks in an approved newspaper. It is through this announcement that creditors are informed of the deceased’s death.  They have four months to announce claims to the monies belonging to the deceased.   Proof of publication and notice must be filed with the court. A later post will discuss claims and challenges to an estate.

Step 5: The Court Appoints a Personal Representative

Once the court accepts all the filings and verifies compliance with other requirements (e.g. notice and publication), the personal representative will be appointed with proof being provided by a document called the Letters Testamentary.  This document provide authorization to the personal representative – and reliance by institutions -  to move forward in handling the deceased’s legal and financial matters.

The next post will address the various types of probate proceedings and the factors involved in determining the best way to proceed.

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From within Hennepin County Unique Estate Law represents estate planning and elder law clients throughout Minnesota, including Minneapolis, Edina, Bloomington, St. Louis Park, Minnetonka, Plymouth, Wayzata, Maple Grove, St. Paul, and Brooklyn Park. The Minnesota law firm of Unique Estate Law focuses on all aspects of estate planning, including specialized wills, trusts, powers of attorney and medical directives for married couples, young families, blended families, single parents, gay families and those going through a divorce. Unique Estate Law also handles probate administration, asset protection, Medical Assistance planning, elder law, business succession planning, adoptions and cabin planning.



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