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Probate

WHAT IS PROBATE? - Literally, it means the proving of a will. Probate is the legal process of administering the estate of a deceased person by resolving all the claims and distributing the deceased person's property under a valid will.

WHAT IS A PERSONAL REPRESENTATIVE? - This is the person previously known as the executor of the estate. Although typically nominated in a will, the personal representative is actually appointed by the probate court. If there is no will is up to the probate court to decide who will be the personal representative of the estate.

WHAT DOES THE PERSONAL REPRESENTATIVE DO FOR THE ESTATE? - The personal representative initiates the probate process by filing legal documents in the probate court in the county where the decedent lived at the time of death. They make an inventory of all the property owned by the estate and report that inventory to the courts and to the potential heirs or beneficiary.

WHEN DOES THE PROBATE PROCESS END? - Probate ends when all the debts and taxes of the estate are paid and all the assets are distributed to the people or organizations entitled to receive those assets.

WHAT PROPERTY DOES NOT NEED TO BE PROBATED? - Non-probate property typically includes assets owned as joint tenants, jointly held bank accounts, payable-on death accounts, life insurance proceeds with the named beneficiary, pension and other retirement benefits with designated beneficiaries. It is important to note that both probate and non-probate property will be combined for the purposes of calculating any estate taxes that may be due.

DOES HAVING A WILL HELP AVOID PROBATE? - Not necessarily. Probate is the process of determining the validity of the will. If property needs to be administered taxes to be paid, existence of a will does not avoid probate or increase probate expenses.

WHAT HAPPENS WHEN THERE IS NO WILL? - Unless all of the assets are either held jointly with another person or have designated beneficiaries there will still be a probate if the estate assets total $50,000 or more. There is a set distribution pattern for the estate assets set up by the state called “intestate succession”. This may or may not result in assets going to persons intended by the decedent.

HOW MUCH DOES IT COST PROBATE AND ESTATE? - Some states have statutory probate fees based on a percentage of the value of the estate. Minnesota has no set percentage. The cost here depends on the specifics of the situation involved. The expenses of settling estate include: the cost of the funeral or the ceremonies, copies of the death certificate, attorney fees, accounting services, real estate transfer fees, court fees, notices to potential creditors and heirs, and the personal representative fees. All of these are paid from the assets of the estate before anything is distributed to the heirs. Generally speaking, the better the estate is planned the smoother the probate will go, and the lower the overall expenses will be.

WHAT HAPPENS WHEN A PERSON DIES OWNING PROPERTY IN MORE THAN ONE STATE? - Unless the property is held jointly with another living person or has a designated beneficiary, a probate in the other state will be necessary. Another alternative is to establish a trust as the owner of property in the other state. This will usually avoid a probate there if title to the property is held in the trust's name.