1. Is it true that if I have a Will, I can avoid probate?

Not necessarily. A will does not avoid probate. Rather, it gives instructions to the court if an estate needs to go through probate. A Will covers two main things: 1) who will be in charge of the probate process (your executor or personal representative); and 2) where your estate will go.

The need for probate is more driven by how you own your assets and whether you have beneficiaries on your assets.

2. Why have a Will if it does not avoid probate?

While having a Will does not mean that your estate will avoid probate. But, if you do not have a Will, the state has a will drawn up for you in the form of statutes that direct where your assets will go. Not having a Will does not mean your assets will go to the state. It just may be that you do not agree with how the state directs your assets to go. Also, a Will allows you to nominate who you would like to act as your personal representative (also referred to as an executor). Without a Will, the law outlines who has priority to act as personal representative, which may not be the same person as you would have chosen.

Example 1: If you are not married, and you would want your significant other to get all of your assets, you would want to have a Will or other estate plan to direct that things go to that person. You may also want to name that person as your personal representative to handle the probate.

Example 2: A married couple has no children and no Will. The state would direct their assets to go to the survivor’s parents if still living, or if not living, to their siblings. With a Will or other estate plan, the couple could direct that they want a charity to receive their estate, or leave things to nieces, nephews, friends, etc.

Example 3: You die and have three children. You do not have a Will. You also want all of your assets to go equally to your children. The law would direct that the three children inherit your estate equally even without a Will. Not having a Will does not mean your assets will go to the state.

The children argue about who should be the personal representative. You would have preferred your middle child to act on behalf of the estate. Because there is no Will stating your preference, the children will then need to work it out, or ask the court to be involved in appointing a person the court feels is best. This, of course, can cause problems in the family and can cause the probate to take longer and cost more money.

 

3. What if I die without a Will?

Dying without a Will does not automatically mean your estate will end up in probate. Your assets may be directed elsewhere if you have joint owners on assets or have designated beneficiaries on the assets.

For example: Dad is not married and has no Will. He has a bank account on which his child is a joint owner, he has the child listed as a beneficiary on his IRA, and he has a recorded Transfer on Death Deed on his home naming that child as a beneficiary. When Dad dies, his child will be able to collect all assets without needing a probate and without needing a Will.

Another example: Dad is not married, has no Will, and leaves three children. He has a bank account, IRA, and a home, and none of these assets have joint owners or beneficiaries listed. The children will need to take his estate through the probate process. They will need to decide who will act as the personal representative. 

4. What are the disadvantages of probate?

There are three main disadvantages of going through the probate process:

  • Cost – The probate process can be expensive. In some states, fees are based on the size of the probate assets. That is not the case in Minnesota. Rather, probate costs include court filing fees, publication fees, personal representative fees, other costs of administration, and attorney fees.
  • Time – Probate takes time to be settled. Because you have to go through a court process, an average probate typically takes 6 to 9 months. If there are disputes as to how to handle the estate or the estate has assets that cannot be settled (example: a piece of real estate needs to be sold), the process can take longer. 
  • Public Information – Probate is not private because it is going through the court system. Notice of the probate also needs to be put in a local newspaper. If someone wants to look up the assets and heirs of someone who died whose estate goes through probate, it is available information to the public to look up. 

 

5. The bank is asking me for “Letters” or a court order to prove I am the personal representative/executor. Now what?

This means that the deceased person’s account is in his/her name only without a joint owner and without a beneficiary listed. The bank will require one of two things:

  1. If this account and other assets of the deceased person that have no joint owner and no other beneficiary are under $75,000, then you may be able to give the bank an Affidavit for Collection of Personal Property to collect the account. You will have to wait 30 days following the deceased person’s date of death to do this.
  2. If total assets – this account (and other accounts in the deceased person’s name alone) are over $75,000, the bank will require that a probate be started. Once the court process appoints you as the personal representative/executor, then you can go back to the bank with the Letters and court order to collect the money.

 

6. Do I need to use an attorney for probate in Minnesota?

It is not mandatory to use an attorney. However, the probate process involves a lot of paperwork, navigation of the court process, and providing certain notices to heirs, creditors, and others. Timing is important and the process is time consuming. We help to navigate the entire process in a way that is most efficient and easy for you.

 

7. I am the executor named in the Will. Does that mean I can take action right away on behalf of the estate?

No. First, it needs to be determined if a probate is needed.

If a probate is needed, the personal representative (executor) listed in the Will is simply nominated to act. It does not give him/her authority to act on behalf of the estate. Once the probate court issues an order appointing that person, only then can they act on behalf of the estate. It is common for people to find a Will of a deceased family member, see their name listed in the Will, and they assume they are the person with the authority to take on all estate matters. It is important to pause and first determine if a probate is needed, and then if it is necessary, to move forward with the probate process to have that person formally appointed as personal representative. 

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