What is “probate” and what does a “probate court” do?
A probate court handles the validation of wills, and all the related complications and/or decisions to make that may arise about the will. To clarify and avoid confusion, the probate courts also handle other issues that relate to your estate when you’re still living (like petitions for a conservator and/or guardian, and mental health/capacity issues). But, with regard to wills and estates, it is the specific court that will validate your will, formally appoint your personal representative (or executor, as they used to call it), and supervise the instructions for distribution in your will. If there’s a disagreement over the will or any of the things I just mentioned about the will, then the probate court is the forum to hear those arguments.
In short, the state has an interest in making sure that your property is properly distributed upon your death, either because you validly executed a document that explains how you want it to be distributed, or because you did not execute a will and the state has an interest in making sure your estate gets distributed to those who “ought” to have it, given their legal relationship to you defined by the laws of your state.
What if there is no will?
If there is no will, it will be the court that helps supervise the statutory distribution of your will (meaning, the state has put into law the priorities in distributing an estate to your family when there is no will). In Minnesota, statutory distribution is basically spouse/dependent children, then independent children, if no children, then parents, if no parents, then siblings….all including “+ descendents” – if you have no living blood/legal relations, then to the State of Minnesota. Some clients find it helpful to hear it described as “across, down, up, then out.” By the way, most people forget that taxes and expenses get paid first, followed by valid debts, and then the distribution to others.
With or without a will and with or without the probate court (for some small estates, as discussed above) there’s a general inventory of assets that must take place, an evaluation of outstanding taxes and expenses, validation of debts, and final distribution that may or may not have instructions in a will. This can get very involved and, in some cases, the estate isn’t solvent (meaning, it has more debt than assets). There are special rules a court follows in prioritizing what happens when an estate is insolvent. ……….Now you may be starting to see why a court is involved in many cases.
Two important things to know:
- Proceedings in probate court do not start automatically. They must be “commenced.” The court doesn’t know that Aunt Molly just passed away, nor does the court know if there are any “probate assets” to be transferred. Someone has to let them know these things by filing a petition in probate court.
- Any “interested party” can commence a probate proceeding – not just a family member or the person listed as “personal representative” in a will.
What’s an “interested party?”
Anyone or any entity that has an “interest” in the outcome of the estate (meaning, an interest in some of the value of the estate – in whole or in part). This could be a creditor, a family member who is not mentioned in the will, or the state who may be interested in collecting a lien of some kind, like Medical Assistance, for example. But, it’s important to understand that whoever commences (files) the probate proceeding pays the court costs and their own attorney fees.
How do people know what my will says?
Wills are “public” documents, meaning once a will is presented to a probate court, it is public information, like most court records. Realistically, who goes to court records and reads the wills of strangers?! No one I know. The public nature of the document is so that everyone who may be entitled to the estate (including creditors) has the opportunity to evaluate whether they will be paid. This is why the court publishes a notice in the newspaper and insists that all family members are notified of the probate proceeding – to make sure that everyone gets a chance to speak up if they are entitled to the estate, or part thereof. Reminder: this does not mean that a will is public before your death – sharing your will while you are living remains entirely up to you, but after your death, if your will goes to probate court, it’s public.
Must I commence a probate proceeding?
Not necessarily. As I mentioned in my last post, not all estates need to go through probate – will or no will. If the deceased person owned no real estate and their personal property is under $50,000 of probate assets when they passed away, then the estate can be distributed with a simple collection by affidavit (an affidavit is a written, sworn statement that explains what I just mentioned above). See the law in Minnesota that defines the affidavit Minn. Stat. 524.3-1201 Just a reminder – no real estate! If there is one thing you need a probate process for, it’s to change the name on a title. Only a court can legally change title after a person’s death.
What’s a probate asset?
It’s an asset that is not transferred by means of a beneficiary designation. Life insurance policies are often “non-probate” assets because they have a beneficiary designation (meaning, the court doesn’t need to supervise the transfer of title because you’ve already indicated who you want to have it). Some people use “transfer on death” designations for bank accounts or real estate – this makes them “non-probate” assets for the same reason, assuming the designations are validly executed and deed recorded in the case of real estate.
Jointly held property is “non-probate” as long as at least one of the joint owners survives. (Careful, there’s a difference between “tenants in common” and “joint owners!”)
How much does probate court cost?
It’s a little different in each county, but it’s around $325 to start a probate proceeding, give or take, and this cost does not include charges for certified documents and other supplemental fees.
Do I need an attorney?
“Need” is relative, as is often the case. There are certainly times when it is strongly suggested/advised. But, like all court proceedings, the court would like you to have an attorney because it makes the proceedings work faster/more efficiently, but they can’t make you have one. In my experience, most people would rather have one because the process and interaction with the court can be daunting, the skills required may be beyond your particular experiences, and the time it takes can be overwhelming and all-consuming, especially if you’re having to learn everything as you go. But, it is intended to be a fairly logical process.
In any case, you won’t really know unless you talk to an attorney and get more information. Let an experienced probate attorney help you understand the specific circumstances of your loved one’s estate, let them help you understand your choices, if any, and ask them to explain how the process will unfold.
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