Estate Planning: (Part I: “Probate 101”) Three Basic Questions You Must Ask When A Family Member Passes Away
After the shock, the grief, and the often difficult adjustments to life without your loved one, the practical decisions and duties remain. After your loved one passes, the question often arises: “What do I do?” or “Now what?” Ask yourself these three basic questions and the answers will allow you to slowly start unfolding the process of sorting through what needs to be done, and perhaps present some choices in doing so.
- Is there a will?
This question is important to answer first because it presents two broad paths for addressing your loved one’s estate (their assets or belongings, and their debts). Your loved one will either proceed intestate (having no will) or testate (having executed a valid will).
If your loved one died “testate,” the instructions in the will (assuming it is found to be valid) are what you and/or a probate court will use to distribute your loved one’s estate. Be prepared to provide the original will. But, if your loved one died “intestate,” a Minnesota court will use the laws pertaining to distribution of an estate when someone dies intestate. (Minn. Stat. §§ 524 and 525). In this case, the court will seek to ensure distribution of the estate to those with lawful rights to the estate, and in the manner outlined in those statutes. These distribution laws for those who die intestate are pre-determined for a reason – to ensure that those with lawful right to the estate (or those having some kind of legally recognized relationship to your loved one – especially dependents) are prioritized.
- Do I need an attorney?
The next basic question (and there may be many in between!) is whether you need an attorney to proceed. This is a very important question, and one difficult to answer clearly without asking even more questions. As a matter of fact, the question itself may require consulting an attorney. One meeting with an attorney can answer a number of questions and concerns, shed some light on the probate process, and allow you to understand more about whether you’re up for it on you own, or you need (or would appreciate) some help.
There are a number of reasons you might need (or are strongly urged to use) an attorney. Here are some (and not even close to all) reasons you may need to have an attorney assist you with the process:
- A probate proceeding is required;
- The estate must proceed through a formal (as opposed to informal) probate process – Minn. Probate Court (helpful link)
- You know your loved one has more debt than they have property to distribute (this is called an “insolvent estate”);
- You think your loved one’s assets need to be protected from or for someone;
- Real estate or other titled personal property is involved;
- The family of your loved one is in disagreement over the estate or the will;
- There are minors who are heirs;
- There exists a Medical Assistance claim.
Whether you are required to probate your loved one’s estate or not, you may wish to engage an attorney for the following reasons (among many others):
- Your time and/or skill sets are limited (time = money; financial transactions are not your strong suit);
- You’re overwhelmed by your lack of understanding of the process, and your curiosity is limited in terms of learning more about it;
- Court proceedings make you nervous;
- Complex family or financial issues could use a representative that keeps you from directly interacting with family members and creditors.
- How/when/where do I Start?
Where?: The county in which your loved one lived or in which your loved one owned real estate is the county court that will assist you with determining the estate proceeding and process. When?: If you’re handling the estate on your own, there are time limits on both ends – can’t start the process too early, can’t wait too long. If you’re going to hire a probate attorney, allow them to get you started – they can keep you on task. How?: Again, if you’re using an attorney, they will handle the “how,” but you may be handling this on your own. Court forms are generally available on the court website. You’ll want to use both the Minnesota Statutes (mentioned above, and available at law libraries or online) to study up on what’s required and when, and the Minnesota Probate Court (link above) for explanation of terminology, instructions, and to download available forms. Don’t forget there are fees involved when you’re using the court system, and you will be required to communicate with the Court Administrator for oversight of lawful process requirements, protocol, and scheduling. Be advised, they are unable to offer you legal advice.
Whether there is a probate proceeding or not, you will need two things: 1) your loved one’s Death Certificate (certified), and 2) a document from the court that allows you to collect information and assets of the estate (usually referred to as “letters” – formal name “Letters Testamentary”). If there is no real estate involved and your loved one owns less than $50,000 of personal property, this can be a very simple process. Regardless, the court document (Letters), along with the Death Certificate, are usually all that will be required to make inquiries and to collect assets. Be prepared to show these two documents to all who ask for them.
This blog is written by Bridget-Michaele Reischl, Attorney
DECORO LAW OFFICE, PLLC
This blog is not, nor shall it be deemed to be, legal advice or counsel. This blog does not create an attorney-client relationship with any reader. It is designed to encourage thoughtful consideration of important legal issues with the expectation that readers will seek professional advice from a licensed attorney.
Contact Bridget-Michaele Reischl at:
DECORO LAW OFFICE, PLLC
6 West 5th Street, Suite 800-D
Saint Paul, MN 55102