Probate is the legal process in which an estate determines two things: 1) who will be put in charge of administering the estate (personal representative; and 2) how the assets should be administered.
The probate court appoints an executor (personal representative) with the authority, obligation, to handle an estate. If there is a will, the probate court needs to establish its validity before anything can be distributed to the beneficiaries.
The steps involved in the probate process must be carried out carefully and in a certain order.
Step 1: Determine Who Will be the Personal Representative
The heirs should first try to locate a will. The will should nominate someone to act as Personal Representative. If so, the nominee has the highest priority to be appointed to handle administering the estate.
Step 2: File Probate Petition
Once you determine whom to name as personal representative, we need to file a petition with the property probate court requesting the court appoint the personal representative to act on behalf of the estate. There may be a hearing involved if there is any complication with the will or heirs.
Step 3: Notice to Heirs and Beneficiaries
All heirs and beneficiaries must receive notice that the petition has been filed. This allows them to object to the petition and challenge the will or nomination of the personal representative. Minnesota probate law also requires us to publish notice of the petition newspaper.
Step 4: Identifying Assets and Debts
Once appointed, the personal representative must identify and disclose all the estate’s assets and provide a valuation. Assets include real estate, vehicles, investments, bank accounts, cash, personal property, intellectual property, and pets.
The executor takes legal control of these assets. The personal representative must also inform all known creditors of the estate proceeding. All known debts must be identified and disclosed to the court. Best practices include opening an estate account and funneling all assets/proceeds through that one account.
Step 5: Payment of Debts
The personal representative has an obligation to review all of the estate’s debts and determine which are valid for payment out of the estate’s assets. In addition to pre-existing debts such as loans, mortgages, utility bills, and credit cards, a final tax return must be filed for the estate, and any taxes due must be paid. Funeral expenses must also be paid.
If there is not enough cash on hand to pay all creditors, the Minnesota Probate Code contains a priority list in which the debts must be paid. If a personal representative fails to follow this law, he or she may be held personally liable for unpaid debts. This is the main reason to seek legal assistance BEFORE paying any debts on behalf of the estate.
Step 6: Distribution of Assets
When all financial obligations have been met the personal representative distributes the remaining assets according to the testator’s wishes if there is a will, or according to state intestacy statutes if there is no will. This may require formal ownership transfers via deeds or titles for things like real property and vehicles.
For formal probate, a final accounting of the estate must be provided to the court, detailing all of the assets and debts and how the property was distributed.
The entire probate process takes at least 4 months and sometimes more than a year, depending on the estate’s complexity and the court’s calendar. Due to COVID-19, the courts are severely backed, so it is taking twice as long to get a hearing as it did in 2019. Successfully wrapping up an estate through probate requires attention to detail and a methodical approach to the steps involved.
If you recently suffered a loss, contact Unique Estate Law to ensure a qualified Minnesota probate lawyer helps you properly manage an estate.