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Probate

What is probate?

Does a will avoid probate?

When is probate required?

What about the will or trust?

What are the duties of a personal representative?

What should I do next?





Q: What is probate?

If you have recently lost a loved one, you are going through a difficult time. In addition to losing someone you love, you are forced to deal with a myriad of challenges including planning the funeral and settling your loved one's financial affairs. If you have never been in this situation before, you probably have questions about what probate is and what needs to be done.

Probate is the legal process of settling one's affairs through collecting assets, paying debts, and distributing whatever is left. In the world of probate, your lost loved one is referred to as the decedent. The family member or friend of the decedent who is appointed by the court to wind up the estate is called the personal representative. All the property of the decedent, including real estate, cars, money in bank accounts or investment accounts, and any other property is collectively referred to as the estate. Those who are entitled to receive a portion of the estate are called heirs there is no will or devisees if there is a will.


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Q: Does a will avoid probate?

A will merely provides the probate court with instructions on how to distribute estate assets. Further, a court must decide whether a will is valid. So - with or without a will - an estate could end up in court. But, if all of the estate’s property is held jointly or in trust, probate may not be necessary.


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Q: When is probate required?

The purpose of probate is to divide up the decedent's estate. Minnesota probate law applies to the estates of people who were residents of Minnesota at the time of their death and to anyone owning real property in Minnesota. The need for probate depends on what property you own and whether you own it alone or with others.

Real Property. Real estate must be probated unless it is owned in joint tenancy with right of survivorship or placed into a trust

Personal Property. If you own assets in your own name that are not directed to another through contract (e.g. life insurance or retirement benefits), your estate must be probated. But, if your estate is worth less than $50,000, your heirs may be able to collect the property by using an Affidavit for Collection of Personal Property, which does not require any court involvement.


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Q: What about the will or trust?

A will provides directions from the decedent on how to divide the assets in the estate. If the decedent dies without a will, the estate is considered intestate. In that case, the court will follow the state statute to determine how much of the estate should be given to a surviving spouse, children or other heirs.

A trust is a legal entity that can hold property. Any property already in the trust will be distributed according to the trust agreement and will not be part of probate. If the decedent had a comprehensive trust plan, then the will most likely transfers the rest of decedent's property into the trust. But this transfer of property into the trust will be overseen by the probate court.

In addition to providing guidance through the probate process, Unique Estate Law offers a full range of estate planning services, from simple will plans to comprehensive trust packages custom drafted for your unique family.


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Q: What are the duties of a personal representative?

The main tasks of a personal representative are to:

  • determine the probate assets
  • inventory estate assets
  • receive payments due the estate
  • open estate checking account
  • figure out who gets what
  • value/appraise the estate's assets
  • give notice to potential creditors
  • investigate validity of all claims
  • pay funeral bills, outstanding debts, and valid claims
  • pay the expenses to administer the estate 
  • file and pay income/estate taxes
  • distribute the remaining property per the deceased's will
  • close probate


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Q: What should I do next?

The most important thing you can do at this point is to gather all the documents you can find. If you are going to be the personal representative, you will need to know all the decedent’s assets and debts.

 

  • Order Death Certificates
  • Locate Will
  • List Heirs And Personal Representative Listed In Will
  • Make List Of Decedent’s Assets
  • Make List Of Bills
  • Meet With An Estate Lawyer
  • Review And Sign Documents To Open Probate

 


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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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3800 American Blvd., Suite 1500, Bloomington, MN 55431
| Phone: 952-955-7623
333 Washington Avenue North, Minneapolis, MN 55401
| Phone: 952-955-7623
5775 Wayzata Blvd., St. Louis Park, MN 55416
| Phone: 952-955-7623

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