Ancillary Probate in Minnesota

Ancillary Probate in Minnesota

Ancillary Probate in Minnesota

Non-resident Decedents Owning Minnesota Real Property

Ancillary Probate in Minnesota – which occurs when a Minnesota probate proceeding is subordinate (or ancillary) to the primary probate proceeding in the decedent’s state of residence – may be required with respect to certain Minnesota real property which was owned at the time of death by a decedent who resided in another state.

However, Ancillary Probate in Minnesota involves special procedures that may not be well understood.

Minnesota Based Probate Administration

When a Minnesota resident dies owning a fee title ownership interest in Minnesota Real Property which was:

  • not titled in joint tenancy,
  • not subject to a Transfer on Death Deed, and
  • not the decedent’s Homestead subject to a court decree of title pursuant to a Minnesota Summary Administration or a Minnesota regular probate procedure,

a Personal Representative must be appointed by a Minnesota Probate Court within three years from the date of the decedent’s death in order to be empowered to either sell or distribute the Minnesota Real Property.

Such a Personal Representative would be a domiciliary personal representative – because the decedent resided in Minnesota at the time of death.

However, if a Minnesota domiciliary personal representative had not been appointed by a Minnesota probate court within three years of the date of the decedent’s death, the Minnesota Real Property would be subject to Minnesota’s Decree of Descent provisions.

Ancillary Probate in Minnesota – Minnesota Homesteads

(i)      Surviving Spouse But No Surviving Descendants

Upon the decedent’s death, title to the decedent’s interests in any Minnesota Homestead – subject to the requirement of a spousal election in certain situations – would vest in the decedent’s surviving spouse if there was no surviving descendant(s) of the decedent.

(ii)     Surviving Spouse and Surviving Descendants

If the decedent has surviving descendants, then – subject to the requirement of a spousal election in certain situations:

  • the decedent’s surviving spouse would be entitled to a life estate with respect to the decedent’s interests in any Minnesota Homestead for the term of the spouse’s natural life, and
  • the decedent’s descendants would be entitled to the remainder with respect to the decedent’s interests in any Minnesota Homestead – in equal shares by representation.

(iii)    No Surviving Spouse But Surviving Descendant(s)

If the decedent has no surviving spouse but one or more surviving descendants, such descendant(s) would be entitled to the decedent’s interests in any Minnesota Homestead – in equal shares by representation – unless the decedent’s interests in such Homestead are subject to a contrary disposition identified in the decedent’s Will.

Ancillary Probate in Minnesota – Procedures

When a non-Minnesota resident dies owning a fee title ownership interest in Minnesota Real Property, in order for someone to be empowered to either sell or distribute the Minnesota Real Property:

  • a Minnesota Probate Court must appoint a local personal representative – who can be the Personal Representative appointed in the decedent’s state of residence (the “domiciliary foreign personal representative“), or
  • the domiciliary foreign personal representative must be authorized by a Minnesota Probate Court to exercise the powers of a local personal representative granted by the Minnesota Statutes without being appointed as a local personal representative.

In other words, there are two procedural tracks which may be pursued in order to empower a domiciliary foreign personal representative to sell or distribute Minnesota Real Property:

Track 1 – obtain the appointment by a Minnesota probate court of the domiciliary foreign personal representative (or its nominee), as the local personal representative (hereinafter, the “appointment of a local personal representative“);

Track 2 – obtain authority for the domiciliary foreign personal representative to exercise all of a local personal representative’s powers under the Minnesota statutes without being appointed as a local personal representative (hereinafter, the “alternate procedure“).

Ancillary Probate in Minnesota – Fees

Both the Track 1 and the Track 2 Ancillary Probate in Minnesota procedures:

  • would require payment of the same probate court filing fee – which is virtually uniform throughout the state, and
  • would have publication of notice requirements – although the form of notice would vary between the procedures – and the expense for each type of publication would vary from county to county.

Track 1 Ancillary Probate in Minnesota – Appointment of a Local Personal Representative

The Track 1 Ancillary Probate in Minnesota procedure to obtain the appointment of a local personal representative by a Minnesota probate court may be accomplished either:

  • formally, after a hearing before a judge or probate referee, or
  • in some counties, informally, without the necessity of a hearing before a judge or probate referee.

(i)      No Three Year Limitation

In contrast to the requirement that a domiciliary personal representative be appointed for a Minnesota decedent within three years of the date of the decedent’s death, there is no similar requirement with respect to a Track 1 Ancillary Probate in Minnesota appointment of a domiciliary foreign personal representative as a local personal representative in Minnesota.

(ii)     Probate Court Hearing – Formal Appointment

The Track 1 Ancillary Probate in Minnesota procedure to obtain the appointment of a local personal representative may require a hearing before a judge or probate referee in the county in which the Minnesota Real Property is located.

The necessity of an Ancillary Probate in Minnesota Formal appointment hearing may depend upon:

  • the county in which the Minnesota Real Property is located,
  • the contents of the decedent’s Will, and the Order appointing the domiciliary foreign personal representative in the state of the decedent’s residence, and
  • the degree to which confirmation of marketable real estate title is desired in Minnesota.

Any Ancillary Probate in Minnesota Formal appointment procedure involving a hearing in a Minnesota Probate Court may be more costly, and possibly more inconvenient for the person to be appointed, than either:

  • a Track 1 Ancillary Probate in Minnesota Informal appointment of a domiciliary foreign personal representative as a local personal representative procedure, or
  • a Track 2 Ancillary Probate in Minnesota alternate procedure,

neither of which requires a hearing.

However, in some counties, the petitioner need not make an appearance at the Formal appointment hearing if the petition is uncontested.

Therefore, given its additional documentation requirements, the Track 2 Ancillary Probate in Minnesota alternate procedure may not be any easier than obtaining a Track 1 Ancillary Probate in Minnesota appointment of a local personal representative from a Minnesota probate court – even if a hearing is required.

(iii)    No Probate Court Hearing – Informal Appointment

The Track 1 Ancillary Probate in Minnesota procedure to obtain the appointment of a local personal representative may be accomplished in some Minnesota counties without the necessity of a hearing before a judge or probate referee, pursuant to an informal appointment procedure which varies from county to county.

Some counties will allow the informal appointment process to be accomplished pursuant to the filing of documents by either E-filing, or by United States mail.

However, other counties may require the attorney, the proposed Personal Representative, or both, to appear at the probate court office before a non-judicial officer (the “Probate Registrar“).

Still other Minnesota counties will not even allow the use of a Track 1 Ancillary Probate in Minnesota Informal appointment of a local personal representative procedure if the decedent owned Real Property in that county at death which is subject to probate.

For those Minnesota counties that will allow the use of a Track 1 Ancillary Probate in Minnesota Informal appointment of a local personal representative procedure when the decedent owned probate Real Property in that county at death:

  • if the proposed local personal representative is not also the domiciliary foreign personal representative,
  • the Probate Registrar may be required to delay the appointment of the local personal representative by 30 days, unless the decedent’s Will specifically identifies that the probate administration of the estate will be subject to Minnesota law.

If the proposed local personal representative does not reside in Minnesota,

  • a Track 1 Ancillary Probate in Minnesota Informal procedure to obtain the appointment of a local personal representative by the Probate Registrar – if available in that county –

may be preferable to

  • a Track 1 Ancillary Probate in Minnesota Formal procedure which requires a hearing before a judge or probate referee.

However, in some Minnesota counties, a Track 1 Ancillary Probate in Minnesota Formal procedure for the appointment of a local personal representative which requires a hearing before a judge or probate referee:

  • is actually easier than a Track 1 Ancillary Probate in Minnesota Informal procedure not requiring an appearance before the Probate Registrar, and
  • may be the only procedure available.

(iv)    Removal of the Local Personal Representative

If the local personal representative is someone other than the domiciliary foreign personal representative, the local personal representative may be:

  • removed by the domiciliary foreign personal representative, and
  • replaced by either the domiciliary foreign personal representative, or a nominee of the domiciliary foreign personal representative.

Track 2 – The Ancillary Probate in Minnesota Alternate Procedure

A domiciliary foreign personal representative may commence a Track 2 Ancillary Probate in Minnesota alternate procedure in order to begin the process to acquire the power to sell or distribute Minnesota Real Property if:

  • no local personal representative of the decedent’s estate has been appointed, and
  • no petition or application for such appointment has been filed.

However, if a Minnesota resident creditor files a written objection with the probate court with respect to the commencement by the domiciliary foreign personal representative of the Track 2 Ancillary Probate in Minnesota alternate procedure, the domiciliary foreign personal representative will not acquire the power to sell or distribute Minnesota Real Property.

(i)      Minnesota Title Issues

Prior to 2003, the Track 2 Ancillary Probate in Minnesota alternate procedure could not be relied upon to provide marketable real estate title to a purchaser of Minnesota Real Property.

However, since 2003, the Minnesota State Bar Association’s Real Property Section has viewed the Track 2 Ancillary Probate in Minnesota alternate procedure more favorably.

Nevertheless, given:

  • the relatively infrequent use of the Track 2 Ancillary Probate in Minnesota alternate procedure – particularly in some Minnesota counties, and
  • the complexity required to achieve compliance with its requirements,

it may be easier, or perhaps advisable, to have a local personal representative appointed by a Minnesota probate court in an Ancillary Probate in Minnesota procedure, than to pursue the Track 2 Ancillary Probate in Minnesota alternate procedure.

Therefore, while the Track 2 Ancillary Probate in Minnesota alternate procedure may be an option which can provide marketable real estate title, its use would require the satisfaction of a number of documentation and recording requirements which may lessen its desirability.

This means that even though no court or other appearance would be required by the domiciliary foreign personal representative when pursuing the Track 2 Ancillary Probate in Minnesota alternate procedure, a considerable amount of time and money may have to be spent obtaining and recording the required documents.

Even then, depending on the form of title evidence offered by a particular piece of Minnesota Real Property, the status of title to such property may depend upon the subjective opinion of some future attorney or Title Company employee examining title, since such attorney or title examiner may not be comfortable with the requirements for establishing marketable title under the Track 2 Ancillary Probate in Minnesota alternate procedure.

(ii)     Abstract Real Property

If a parcel of Minnesota Real Property offers the Abstract form of title evidence, there will be no government official initially involved in a determination of the marketability of title achieved pursuant to the Track 2 Ancillary Probate in Minnesota alternate procedure.

In other words, if the Minnesota Real Property offers the Abstract form of title evidence, no one can be certain that upon any attempted conveyance of the Real Property, a future title examiner will be satisfied with the marketable title evidence provided by the Track 2 Ancillary Probate in Minnesota alternate procedure.

(iii)    Registered Real Property

In contrast, if the parcel of Minnesota Real Property had been Registered as “Torrens” property, an official decision will be made regarding the marketability of title under the alternate procedure at the time of any attempted recording of a deed executed by a domiciliary foreign personal representative pursuant to authority claimed by reason of the Ancillary Probate in Minnesota alternate procedure.

Such official decision regarding the marketability of title with respect to Torrens property would be made – depending on the county involved – by either:

  • the County Registrar of Titles – by accepting the deed for filing, and issuing a new Certificate of Title in the name of the purchaser, or
  • the County Examiner of Titles – pursuant to the issuance of an Examiner’s Directive directing the Registrar of Titles to accept the deed for filing.

Due to the volume of Torrens Property transactions occurring in Hennepin and Ramsey counties in Minnesota,

  • the Hennepin County Torrens property officials in Minneapolis, and
  • the Ramsey County Torrens property officials in St. Paul,

may be more comfortable dealing with title evidence issues involving the Ancillary Probate in Minnesota alternate procedure than would other attorneys or title examiners not as accustomed to evaluating the effectiveness of the Ancillary Probate in Minnesota alternate procedure.

Conclusion – Ancillary Probate in Minnesota

An Ancillary Probate in Minnesota procedure may be required in the event that a non-Minnesota resident dies owning a fee title ownership interest in Minnesota real property which was:

  • not titled in joint tenancy, and
  • not subject to a Transfer on Death Deed, and
  • not the decedent’s Homestead subject to a court decree of title pursuant to a Minnesota Summary Administration or a Minnesota regular probate procedure.

If you have need of an Ancillary Probate in Minnesota procedure, contact attorney Gary C. Dahle, at 763-780-8390, or gary@dahlelaw.com.

Attorneys licensed in states other than Minnesota are invited to refer the Minnesota portion of the probate estate they are associated with to attorney Gary C. Dahle, at 763-780-8390, or gary@dahlelaw.com.

Copyright 2017 – All Rights Reserved

Gary C. Dahle – Attorney at Law

2704 County Road 10, Mounds View, MN 55112

Phone:  763-780-8390    Fax: 763-780-1735

gary@dahlelaw.com

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