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Thursday, October 13, 2011

Probate Process, Part V: Should You Choose Informal or Formal Probate?

As stated in my prior posts, there are many different paths to choose when an estate needs to go through probate in Minnesota.  Perhaps the most key decision is whether to take the formal or informal path. The terms informal and formal refer to the type of procedure used to appoint a personal representative to handle the decedent’s affairs and to accept a Will for probate.
Informal probate is the most commonly used form, and is easiest for parties to use when the assets are straightforward and when everyone involved gets along. The formal probate process is required in many situations such as:

  • problems with the will
  • unknown heirs
  • missing will
  • minor heirs
  • high probability for dispute between heirs
  • when there are expected to be problems with the administration.
  • if the estate is insolvent (meaning there is more debt than assets)

Further, there are situations where formal probate is strongly recommended or even required. For instance, if there is no one trustworthy to act as personal representative, it might be better to proceed formally to ensure court oversight of the process. For nontraditional families, formal probate may offer a way to officially resolve disputes so as to avoid later challenges to the distribution of assets.  On the other hand, the court may not be on the side of relationships outside of blood or marriage. Understandably, many nontraditional families may be wary of court involvement in family business.

The informal probate process

The informal probate process commences when an applicant presents an application to a registrar instead of a judge. The application asks the registrar to appoint the personal representative and accept the will, if there is one. The registrar then approves the estate to proceed informally and makes sure the paperwork (e.g the will, petition for informal probate, affidavit of acceptance by personal representative, list of interested persons) is complete. The registrar is not involved between when the estate is approved and when the final accounting is due. This process has less oversight by the court and additional costs from hearings are not incurred.

The formal probate process

The formal process starts with a probate attorney filing a petition with the court on behalf of a petitioner asking a judge to: 1) determine the heirs of the deceased; 2) verify the validity of the will; and 3) appoint a personal representative.  Counties differ on whether the petitioner and attorney in a formal probate must appear in front of a district court judge so check with a probate attorney to verify the requirements in your county. After deciding to file for formal probate, a petitioner must also determine whether the estate should be supervised, meaning the court must sign off on any distributions to heirs before they are made, or unsupervised, meaning the personal representative does not need the court to approve anything before closing the estate.

Upon receipt of the petition for formal probate, the court reviews the paperwork and approves the Personal Representative. At that point, the personal representative is able to work to resolve all outstanding issues in the estate. Keep in mind that commencing a formal probate proceeding provides the petitioner with access to the judge later on if a judge’s signature is required on matters subsequent to the appointment of a personal representative. The formal process is generally more expensive due to consistent attorney intervention in obtaining the court’s approval and signature and in attending any required hearings.

The probate process can be complicated and confusing so it is a good idea for family members to meet with an experienced probate attorney to assist with making a decision on which probate process to pursue. Further, to minimize court involvement and ensure your "stuff" goes to the people of your choice, you must have a will.  Don't leave things to chance - or the State - and don't leave your loved ones with the added stress, and expense, of trying to figure out what you wanted.  Protect your family with an estate plan designed to limit hassle, delay and expense so decisions like choosing informal versus formal probate are easy allowing those left to focus on more important matters.



 


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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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