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PROBATE PROCEEDINGS

by Michael Mjoen

The Mjoen Law Office provides complete estate planning services including wills, trusts, living trusts, family trusts, testamentary gifts. The Mjoen Law Office also provides complete representation in formal and informal probate proceedings, providing personal representatives with information and guidance throughout the process. Call 952.943.3945 or E-Mail.

Click Here to "Ask-A-Lawyer"
a Minnesota Probate question.

In any probate proceeding, you may be faced with three choices:

• Informal Probate,
• Formal Probate without Supervision,
• Formal Probate with Supervision

Informal Probate

Informal probate proceedings are non-judicial. That means they do not flow through the court system in the form of hearings before a Judge. Documents are still filed with the Court and made available to the public, but personal appearances in Court are unnecessary. An informal probate is commenced by filing an application with the Probate Registrar in the county where the death occurred and/or where the assets are located. Informal proceedings eliminate direct court involvement, though they do not eliminate the court's jurisdiction over the proceedings if disputes should arise.

Informal probate proceedings are unsupervised. That means the personal representative (also called an Executor) may distribute the estate without court authorization. There are several benefits to this form of proceeding including:

• Saves time and money because of minimal Court supervision;
• Divisions of the estate are left to the discretion of the personal representative and the heirs;
• The proceedings may be converted to a supervised proceeding at any time if the need or conflict over the division of property arises.

Formal Probate Without Supervision

Formal unsupervised probate may result when a factor occurs such as determining heirship that creates a need for Court involvement. Once the Court involvement is no longer necessary, the matter may proceed informally. This form of probate allows for the rapid appointment of a personal representative while allowing the Court to make a binding decision related to testacy or heirship.

Formal Probate With Supervision

Under Minnesota Statutes § 524.3-501, once supervised administration of an estate has begun, the jurisdiction of the Court to supervise the proceedings extends until the entry of the order approving the distribution of the estate and the discharge of the personal representative. In essence, the supervision lasts until the end of the proceeding.

When To Proceed Formally

REAL ESTATE: If real estate is involved, formal administration is recommended unless:

• All real estate will be sold as part of the probate administration;
• The real estate is correctly described by its legal description and specifically devised by a will to a correctly identified beneficiary.

INSOLVENT ESTATE: With an insolvent estate (debts exceed assets) formal proceedings are necessary to allow a Judge to determine the priority of payments to creditors and for expenses..

NO WILL AND HEIRS ARE NOT DETERMINED: When a person dies without leaving a will, they are called "intestate". When a person dies intestate, the Court must determine and locate the heirs based on Minnesota laws.

ILLEGITIMATE CHILDREN: Illegitimate children may create a requirement for a formal probate, first, to determine paternity, and , second, to determine heirship.

WILL INACCURATELY DESCRIBED DEVISEES: Mistakes in Wills, particularly those related to the description of beneficiaries, may create a need for a formal probate proceeding.

DISPUTES AMONG HEIRS: Disputes among heirs or potential heirs may create a need for court supervision and formal probate proceedings.

HEIRS ARE MINORS: If the heirs to an estate or in their minority, the Court may be required to supervise the proceedings to ensure that the best interests of the heirs are maintained. The distributions may be placed into a trust and a trustee appointed or, if the estate is not significant, the Court may order the testamentary proceeds distributed.

ORIGINAL WILL CANNOT BE LOCATED: It may be necessary to authenticate a copy of a Will if the original will cannot be located or is presumed destroyed. In such a proceeding, Court supervision is required.

ATTEMPTED CHANGES ON THE FACE OF THE WILL: Any writing on a will may create a question regarding the validity of the Will. This also requires Court supervision.

QUESTIONS ABOUT THE WILL OR TESTAMENTARY CAPACITY: If there are any questions regarding the authenticity of a will or the mental state of the person at the time they wrote the will (eg. claims of undue influence, or incapacity), a formalized probate proceeding is appropriate.

AMBIGUITY IN DESCRIBING HEIRS OR PROPERTY IN A WILL: If there are any questions regarding the identity of designated beneficiaries or the description of personal property, Court supervision is necessary to determine the respective rights of the parties.

If you have any questions regarding these issues or for a free consultation please call 952.943.3945

Call 952.943.3945 or 218.568.5241