Losing a loved one is hard enough. Dealing with a complicated estate can make matters even more difficult. Revermann Law is here to help you navigate the probate and trust administration processes and remove the burden.
What is Probate?
Probate is a Court process needed to transfer assets that are held in a person’s name by him/herself only when they die. Assets that are owned jointly with someone or with a named beneficiary will avoid probate. This is because it says on the document where the asset will go when the owner dies. If there is a joint owner, the other owner, as survivor, will automatically take full ownership of the asset. If there is a beneficiary named, the beneficiary will be the person to take ownership of the asset.
What triggers Probate?
If there are no joint owners and no beneficiaries on an asset, that asset may be subject to probate. In the state of Minnesota, a probate will be necessary if:
A) You have real estate only in your name when you die.
Example: Husband and wife own a home together as joint tenants. Husband dies. There is no probate. Then, wife dies being the sole owner of the home. A probate is needed in order to pass the home on to their children or to sell the home. This is true even if husband and wife have a Will. Read about what a will does.
B) You have more than $75,000 of assets (when added together) that don’t have a beneficiary or joint ownership.
Example: A person has three accounts: a checking account with a balance of $10,000, a $50,000 savings account, and a certificate of deposit (CD) with a value of $20,000. None of these accounts have a beneficiary and are only owned by one person. In order to transfer the accounts, a probate will be needed.
If this same person had just the checking account and CD worth, together, $70,000, an Affidavit for Collection of Personal Property may be used to transfer the accounts after 30 days have passed since the person’s death. Again, this is true even if the person has a Will. Read about what a will does.
It is possible that you have a mix of assets where some trigger probate and some can be collected right away by the joint owner or by the beneficiaries. When a probate is not needed at all, or just in part, because there is a Trust, joint assets, or named beneficiaries on certain (or all) assets, there are still steps to take in settling one’s estate. We are here to guide you. We will be writing a blog soon about this topic.
What does a Will do?
If there is a Will, the instructions of the Will are followed. Overall, the Will says who you want to be in charge (personal representative – or sometimes informally referred to as an executor), and where you want your Estate to go. If there is no Will, state law will decide who will get your assets, which may be different that what you would choose.
Average Timeline & Cost
An average probate takes about six to nine months and costs about $6,000 to $8,000, which is made up of attorney fees, court costs, and publication costs. Also, information is open to the public because it is in the Court system.
With that said, probate is not the worst thing. Our team at Revermann Law handles all of the paper shuffling and meets all Court deadlines for you.
Gather Relevant Information
We collect information from you that will be needed to prepare the Court documents.
- Names and addresses of the nominated personal representative and other heirs (spouse, children, parents, siblings, other family, people named in the Will)
- Original Will and any Codicils (amendments to the Will)
- Death Certificate
- List of known probate and nonprobate assets and approximate values, if known. This may include bank, investment, and retirement accounts, insurance policies, DMV registered items (vehicles, trailers)
- Deeds or property tax information for any real estate
- Business documentation
- Creditor information and approximate amounts owed, if known
- Funeral and medical expenses that have been paid or are due
Prepare Court Documents
We will prepare all of the Court-required documents and letters that will be sent for the probate process.
- We will ask the nominated personal representative (our client) to review and sign a Petition, which is the formal request to the Court to appoint this person as the personal representative and to probate the Will (or to determine who the deceased heirs are, if no Will).
- We will also ask the nominated personal representative to sign an Acceptance of Appointment, which is their agreement to take on the duties of personal representative.
- Depending on if there is a Will and who is asking to be the personal representative, we may need to ask that other interested people (heirs, family members, etc.) to sign a Nomination which their agreement to have the nominated personal representative take on those duties.
- Our time frame: We prepare and get all documents to our client within a week of having all information from step 1.
File Documents with Court
Once we have the signed documents, we will file them with the Court. Our time frame: We file the documents within 2 business days of having all the necessary signatures.
Set Hearing Date
Once the Court has the paperwork we have filed, it will set a hearing date. This hearing is the date that the Court (in most cases) will formally appoint the personal representative and probate the Will (or determine heirs). See more on that below.
This is an important date because it sets the “Creditor Claims Period.” This is the period of time where creditors must make their claim against the estate to be paid out of estate assets. There are exceptions to this; however, the general rule as the Creditor Claims Period ends four months after this date the Court sets the hearing date. So, for example: The Court opens its file and gets our initial probate paperwork on April 10th, then creditors have until August 10th to make a claim. If they fail to do this, their claim may be barred (stopped) from being paid by the estate.
This date is also important because the probate cannot be closed until after that Creditor Claims Period ends. While assets can be collected, expenses paid (with some exceptions), real estate sold, etc., distributions and closing of the estate should not be done until after that time period ends. This is primarily what contributes to the longer time frame of the probate process.
Court’s time frame: Typically, the Court sets the hearing date and sends us notice within two weeks. This is also very county dependent based on each county’s case load and Court calendars.
Once we obtain the Court document setting the hearing date, we must notify certain people. This gives these people the opportunity to object to the appointment of the nominated personal representative and to give notice to any creditors about the probate process.
- Interested people may include family members, people who are named in a Will, and the Department of Human Services.
- We also arrange to have the Court’s notice published in a newspaper. This must appear at least two weeks before the hearing in a local newspaper.
Our time frame: We will take care of this process as soon as the Court gets us their documents.
This is a very key date. This is when the Court considers the request to appoint the personal representative and to probate the Will (or determine heirs, if there is no Will).
- Prior to this date, no one is formally in charge of the estate and there is no appointed personal representative. This means no one can act on behalf of the estate – accounts are frozen, no real estate can be sold, etc.
- Depending on the County and whether there are any objections, this may or may not be a hearing anyone needs to attend. In Stearns County, Minnesota, for example, there is no actual hearing. Neither the attorney, the nominated personal representative, or any other interested persons need to attend this hearing.
- In other counties, such as Sherburne or Hennepin, an actual hearing does take place. We attend that hearing along with the nominated (via Zoom). The Court asks us to make the request again at the hearing. In most cases, no one else attends the hearing.
In the very rare case, there is an objection. The objection must be given in writing before the hearing. Then, the Court will reset the hearing date for another time to be sure objections can be stated and opposed at a full Court hearing. In most cases, we already know and may not necessarily get to this point, that there may be an objection ahead of time. Those types of probates change the rest of the procedure going forward.
Court’s time frame: Typically, the Court sets the hearing date out about 8 weeks.
Court Signs Order and Letters
Following the hearing date, if there is no objection, the Court will sign two documents: 1) Order for Probate; and 2) Letters Testamentary (for a Will) or Letters of General Administration (no Will). These are the two documents that allow the personal representative to act on behalf of the estate formally. After this date, the personal representative can access bank accounts, sell real estate, etc.
- The personal representative must represent the interests of the Estate. This person must handle Estate matters in a prudent and careful manner.
- Generally, a personal representative may act without Court Order. In some circumstances, direction from the Court is needed, but, in most cases, Court permission is unnecessary to conduct Estate business.
- We will obtain a tax ID number for the Estate, which will be used, along with the Order and Letters to go the bank of the personal representative’s choosing to open a new “Estate” account.
- The Order and Letters are used to access any bank, investment, and retirement accounts, insurance policy proceeds, etc. where either there was no beneficiary listed or the “Estate” was listed as the beneficiary. It’s important to understand that if an account has a beneficiary that is different that what is in the Will or different than going through the probate, the person(s) named gets whatever is in the account. This does not go through the Estate, and cannot be accessed by the personal representative.
- The personal representative can move forward with selling real estate. This may include cleaning out the house for sale, listing with a Realtor, entering into a purchase agreement, disposing of or distributing personal property in the house, and signing for the estate at a closing of the sale of the property. All of the Estate’s bills and claims need to be paid as long as they are proper. In some cases, a bill or claim is received that is improper. It is important to address this immediately because the law gives the personal representative only a limited amount of time to inform the creditor that the bill should be disallowed. Also, if the Estate does not have enough funds to pay all bills and claims, then Minnesota law tells us which bills are paid first. Since most creditors have four months to file their claims with the Estate, no bills should be paid in this case until after the four-month creditor’s claims period has expired. If a bill is paid too early and then if the Estate later does not have sufficient funds to pay creditors who had the right to be paid first, a personal representative could be held personally liable for the bill.A personal representative may charge the Estate for their time in administering the probate. If they choose to do so, they should keep a record of all expenses, such as mileage, copy charges, stamps, etc. along with a daily record of tasks and time spent related to the administration. The amount to charge is based on the work done and can vary. The personal representative should keep in mind that what they are paid is considered taxable income and would need to be reported on their own individual income tax return.
Time frame: This will greatly depend on the types of assets held in the Estate. Sometimes real estate may be difficult to find a buyer for. As long as the personal representative is working as quickly and as efficiently as they can in a way that is consistent with the Estate’s best interests, the timing will not be a concern.
The personal representative will need to keep careful records of all Estate financial matters in order to properly account for all Estate assets, and show the activity of what happened with Estate assets.
- Within the later of six months of being appointed as personal representative, or nine months following the date of death, an Inventory must be filed with the Court and given to people who have an interest in the Estate.
- In addition, a Final Account may be required by the Court to show what payments were made from the Estate and for all amounts received by the Estate. The personal representative should information showing the value of the probate assets, as well as keep all bank statements and canceled checks from the time the Estate account was opened through a current date, a detailed check register or similar documentation showing all deposits and checks ran through the account, and any other information that is relevant to the assets that are part of the Estate, including documentation for any sales of property. The Final Account will be given to the Court and to people who have an interest in the Estate.
- Time frame: While the Inventory has a set due date, the timing of finalizing the Final Account will be dependent on how quickly the probate assets are collected or sold, and when bills are paid. This will not be done before the creditor’s claims period ends.
- There are also tax considerations such as the filing previous returns for the decedent, final decedent’s final tax returns, and any business returns. Also, depending on the size of the Estate, an estate tax return may need to be filed within nine months of death. If the Estate earns more than $600 of income in any year, an income tax return for the Estate will need to be filed. It is very important to understand that the personal representative has a duty to file any past due unfiled income tax returns and to pay decedent’s income taxes due. They can also be personally assessed for decedent’s tax liabilities.
There are a few ways that the probate is closed, depending on the Court’s requirements. Sometimes once the Final Account is consented to by the interested people, the personal representative can finish up any last-minute bill paying and make any distributions to heirs or people named in the Will, and the probate can be closed. In some cases, the Court will require a hearing to discharge the personal representative formally. Again, this will not be done before the creditor’s claims period ends.
While probate gets a bad name because it is a process that takes longer, costs more, and is public information, Revermann Law works on probates every day. We strive to take the complexity out of it and make the process as easy for you as possible.
Probate Blog Articles
What to do when probate is only needed for some of the assets while others can be collected right away?
Get answers to the most commonly asked probate questions.
What should be included in a Will?
Tips and common mistakes we see that impact Probate.
Let's Work Together
If you choose to work with us, our guarantee to you is that the process will be reliable and accountable.
Monday - Friday: 8 am - 5 pm