What To Do When Someone Dies, Part 3: What Type of Proceeding Do You Need?

By Chris Tymchuck
Founding Attorney

A Minnesota Probate Attorney Covers the Different Proceedings Available to Handle an Estate

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 commence 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

Where the probate assets in an estate are $50,000 or less (and do not include any real estate), Minnesota allows a special process for you to collect those assets.  Under this procedure, known as Collection by Affidavit, the person entitled to receive the property signs a legal form stating that he or she is legally entitled to receive the specific asset listed in the Affidavit. When the properly executed affidavit is presented to the person, or institution, in possession of the property, those holding the asset are then authorized to deliver the property and be fully discharged of any further responsibility. This process can be complicated by the existence of creditors’ claims and therefore should not be done without legal counsel. Because a Collection by Affidavit can’t be used for real estate, you should 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, you may need to initiate a Determination of Descent proceeding before you will be able 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.

The next post will explain what is meant by formal vs. informal probate proceedings.

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.