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WHAT IS PROBATE?
Probate is a court supervised legal process to transfer a person’s assets after their death. It includes determining the validity of the decedent’s will, gathering their assets, paying their debts, taxes, and the expenses of administration, and then distributing the remaining assets to those people named in the amounts designated. The survivors of the decedent must petition the probate court to have the will admitted to probate. The main advantage of probate is that the court supervises the entire proceeding and ensures that probate law is properly followed. Court supervision is especially beneficial if there are claims of creditors, challenges to the will, disagreements over valuation, or other disputes that can result from a will. The probate process can take up to a year or more and is often costly. It is also criticized for the loss of privacy surrounding the will maker's financial affairs. All probate documents including the will, petition to probate and inventory are public record and open for anyone to see.
HOW DOES PROBATE WORK?
To start the probate process, an original will, a certified death certificate and a petition to probate are filed with the court. The court will appoint a Personal Representative to handle the probate administration of the estate. This person will pay all legitimate debts such as costs and expenses of administration, last illness bills, real property taxes, income taxes, estate death taxes and the funeral bill. The Personal Representative will obtain a TIN and open an estate checking account and may have to sell property in order to cover expenses. Creditors will have four months within which to submit their claims. After the claim period runs the Personal Representative can then distribute the money and real property to the beneficiaries. In many cases the Personal Representative will need to complete an inventory and a final account. Many estates, especially those with real property, can take one or two years to probate.
When a person dies without a will, state statutes dictate who receives that person’s
assets. In this situation, a Personal Representative is chosen by the court in accordance
with Minnesota Statute Section 524.3-
Probate rarely benefits a person’s beneficiaries, and it always costs them time and money. Therefore, it is important for everyone to plan ahead and avoid probate. Probate can be avoided if a person establishes a Revocable Living Trust prior to death. Lange Law Firm has drafted thousands of trusts and we invite you to see our page on Revocable Trusts.
Codicil: a legal document that modifies a will.
Creditor: a person or party to whom a debt is owed.
Devise: disposition of property by will.
Devisee: person, or organizations designated by will to receive property.
Distributee: person, other than a creditor or a purchaser, who receives property of a decedent.
Estate: All of the property of the decedent.
Formal Proceedings: proceedings conducted by a Judge.
Heirs: persons entitled to the property of the decedent under the laws of intestate succession.
Informal Proceedings: unsupervised proceedings conducted before the Probate Register.
Interested person: includes heirs, devisees, children, spouse, creditors, and any others having a property right in or claim to the estate of the decedent.
Intestate: estate with no will
Personal Representative (PR): individual in charge of handling the estate of the decedent.
Probate Assets: assets owned solely by the decedent. Property only in the name of the decedent without a beneficiary named.
Registrar: the official of the court who administers informal probate.
Separate writing: documents or lists, as referenced in a will, that dispose of only tangible personal property.
Testate: estate with a will
Will: a written instrument/document, legally executed, by which a person makes disposition of his or her estate to take effect after death.
Probate is a court supervised legal process to transfer a person’s assets after their death. It includes determining the validity of the decedent’s will, gathering their assets, paying their debts, taxes, and the expenses of administration, and then distributing the remaining assets to those people named in the amounts designated.
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