Probate is the process of transferring a decedent’s assets from the decedent’s estate to the decedent’s heirs or devisees. If a decedent died testate (with a validly executed Will), the decedent’s estate is transferred to the individuals or charities named by the decedent in the Will. If a decedent died intestate (without a Will), the recipients of the decedent’s estate are determined by the intestacy statutes of the state in which the decedent lived. Regardless of whether the decedent died testate or intestate, his or her estate must be probated in order to transfer the assets accordingly. The process of probating an estate can be divided into three periods:
Prior to Opening of Probate:
A series of documents must be filed with the Court in order to open the probate; these documents are usually drafted by the attorney representing the individual requesting appointment as the personal representative, or executor, of the estate. Notice of the probate must also be forwarded to the following parties: the Department of Human Services, any potential creditors, and the decedent’s surviving heirs. This period of the probate process is fairly labor intensive; it typically lasts two to three months and culminates with a hearing in which a Judge signs a Court Order opening the probate and appointing the personal representative. Once the appointed personal representative has received authority from the Court, he or she may begin accessing the assets and paying the debts of the Estate.
Probating the Estate:
Once the probate has been opened and the personal representative appointed, Minnesota law dictates that the probate must remain open for a minimum of four months. This allows any outstanding creditors of the Estate to bring a claim against the Estate before the assets are distributed to the devisees or heirs. In addition to the four month minimum, the probate must remain open until all claims have been settled, all debts have been paid (including any estate taxes due), and all assets can be liquidated and/or distributed. In practice, this usually takes at least six months.
Closing the Probate:
Once any claims against the Estate have been settled, all debts have been paid, any necessary tax returns have been completed, and the assets are ready for distribution, the probate is ready to be closed. The personal representative, with assistance from an attorney, must file a Final Account with the Court, detailing the assets held, income generated, expenses incurred, and claims paid during the probate. The personal representative must also file a Proposal for Distribution showing how the assets will be distributed to the devisees/heirs of the Estate. The Court and all devisee/heirs must consent to the Final Account and Proposal for Distribution before the probate can be closed. In most circumstances, the probate can be closed informally by filing a Statement to Close with the Court. This method allows the personal representative to continue to act on behalf of the Estate for up to one year after filing of the Statement to Close and permits the probate to be easily re-opened within that timeframe if necessary. If the probate is closed formally, the authority of the personal representative terminates immediately, and both closing and re-opening of the probate will require a Court hearing.
Probate can be a time-consuming and complicated process. It is important to consult with an attorney if you believe you may need to probate the estate of a family member of friend.
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