The Probate Process, Part IV: Choosing the Proper Probate Process

By Chris Tymchuck
Founding Attorney

As discussed in my prior post, the personal representative starts a probate proceeding by filing an application or petition with the probate court.  But, prior to commencing probate, the personal representative must make a decision on what type of probate process to pursue.  Minnesota provides several different types of probate proceedings to address the variety of issues and needs which might arise. The type of proceeding to pursue depends on such issues as determining the decedent’s heirs, the validity of a will, the types of assets in the estate and their value, the potential for disputed claims, and the desire to have a court oversee the personal representative’s actions. When more than one type of proceeding is permissible, it is important to select the one that best fits the specific needs of the decedent’s estate. There are five common types of probate proceedings in Minnesota.  This post will discuss three of them and the next post will address the remaining two.

Collection by Affidavit for Small Estates

There is a special procedure provided for small estate without any real estate holdings (currently at $50,000 or less). Under this procedure, known as Collection by Affidavit, a personal representative is not appointed but, instead, the person entitled to receive the property signs a legal form known as an affidavit.  In short, the affidavit states that the person signing the affidavit is legally entitled to receive the decedent’s assets. When the properly executed affidavit is presented to the person in possession of the property, that person is then authorized to deliver the property and be fully discharged of any further responsibility regarding the property. This process can be complicated by the existence of creditors’ claims and therefore should not be done without legal counsel. Please note that Collective by Affidavit is can’t be used to transfer real estate. So, if the estate contains real estate, please contact an attorney to properly transfer the property.

Determination of Descent

If a person died more than three years ago and no probate proceeding was ever started, a determination of descent proceeding is typically required in order to transfer the decedent’s probate property. No personal representative is appointed. Instead, an attorney files a Petition for Determination of Descent with the court who then issues a decree ordering the property to be transferred according to the decedent’s will or, if no will, by statutes. This procedure is commonly used where the decedent is still in title to real property long after his or her death and the property was never transferred to the appropriate individuals.

Summary Administration

Some probate assets are exempt from the claims of creditors. When all the probate assets of the estate are exempt from creditors and the value of the assets do not exceed certain limits specified by law, summary administration may be available. Summary administration avoids a lengthy administration as no one needs to give notice to creditors. The statutes authorizing summary administration are quite restrictive. Because of this, it is infrequently available for a decedent’s estate.

Minnesota Probate Lawyer

If you’ve suffered the loss of a loved one and don’t know what to do next, call 952-955-7623 today to speak with an experienced Minnesota probate lawyer who can help walk you through the process of transferring assets, paying debts and expenses and working with other heirs and beneficiaries.

About the Author
As a Minneapolis Estate Planning and Probate attorney I help build and protect families through the adoption, estate planning, and probate processes. I also have experience working with families on issues related to their small businesses. I know how difficult it is to find time to plan for the future and I am here to help walk you through it.