Commencing Minnesota Probate

Commencing Minnesota Probate

Commencing Minnesota Probate

Commencing Minnesota Probate – Reading of the Will

Contrary to popular belief, in Minnesota there is generally no “reading of the Will“, in the attorney’s office, or anywhere else.

Usually, family members already know the contents of the Will, if there is one.

However, those persons who have never seen the Will can discover its terms soon enough after it becomes a public document upon filing with the probate court.

Commencing Minnesota Probate –  Filing of the Will

Persons in possession of a decedent’s Will after death are required by statute to file it with the probate court upon demand by an interested person.

Commencing Minnesota Probate – Death Certificates

The funeral director will obtain the decedent’s death certificate from the issuing government office a few days after the decedent’s death.

Thereafter, the proposed Personal Representative should obtain multiple certified copies of the death certificate from the funeral director, as they will be needed for various purposes.

The death certificate will contain certain information that the Probate Attorney will need in order to prepare the documents necessary for the initial probate proceeding.

Commencing Minnesota Probate – Initial Appointment

After receiving copies of the death certificate, the proposed Personal Representative should contact Minnesota Probate Attorney Gary C. Dahle in order to begin the probate process.

The Probate Attorney will require the following documents and information:

  • A copy of the decedent’s death certificate;
  • The original of the decedent’s Will, if there is one;
  • The names and addresses of all of the decedent’s closest relatives.

The Probate Attorney will then determine which of the decedent’s relatives must be:

  • identified on the probate Application or Petition, and
  • provided with notice of the probate proceeding.

Commencing Minnesota Probate – Initial Information

If there is a Will, provide to the Probate Attorney the names and addresses of:

  • all of the persons who are nominated as Personal Representative(s) in the Will, and
  • all of the persons who are have been identified to receive property from the decedent’s probate estate pursuant to the Will.

Provide all available information regarding the decedent’s assets and liabilities to the Probate Attorney, including:

  • the values of the decedent’s various assets,
  • the extent of the decedent’s liabilities,
  • the identity of the persons or institutions holding the decedent’s assets,
  • the identity of the persons or institutions to whom the decedent owed money at the time of death,
  • the identity of any payable-on-death beneficiaries with respect to any of the decedent’s assets, and
  • the identity of any assets held in joint tenancy.

If available, provide a copy of the deed which the decedent received upon purchase of any real property which was owned by the decedent at death, so that the Probate Attorney can determine whether such property was subject to a joint tenancy.

If applicable, provide a copy of any Transfer on Death Deed which was recorded prior to death with respect to any real property which was formerly owned by the decedent.

Commencing Minnesota Probate – Prepare and Sign the Initial Probate Documents

After the Probate Attorney has obtained all of the necessary information, the Probate Attorney will prepare the initial probate documents which will be required in order to commence the probate proceeding.

Thereafter, the proposed Personal Representative will need to return to the Probate Attorney’s office, or make other arrangements to obtain the necessary documents, in order to:

  • sign the initial probate documents, and
  • provide the Probate Attorney with sufficient funds with which to start the probate process.

Commencing Minnesota Probate – Probate Court Filing Fee.

The fee payable to the probate court in order to commence a Minnesota probate proceeding may vary slightly from county to county, but is currently more than three hundred dollars.

The court filing fee in Minnesota for either Formal proceedings, or Informal proceedings, is the same.

Commencing Minnesota Probate – Cost of Publishing Notice of the Proceeding.

Publication of a notice of the commencement of a probate proceeding will partially satisfy constitutional due process requirements that no person be deprived of property without due process of law.

Commencing Minnesota Probate – The Publication Fee

The publication fee will be payable to the legal publisher of the probate notice – and varies considerably from county to county – but is usually more than $100.

Commencing Minnesota Probate – The Retainer Fee

The Probate Attorney may require payment of a retainer fee in order to commence the probate proceeding.

The amount of the initial retainer fee will vary from attorney to attorney, depending on:

  • the extent of his or her experience,
  • the cost structure of his or her office, and
  • perhaps the resources of the proposed Personal Representative.

It would not be unusual for the proposed Personal Representative to advance the amount of the retainer fee to the Probate Attorney, and receive reimbursement from the estate at a later date.

Commencing Minnesota Probate – Probate Procedures

There are two types of probate commencement procedures in Minnesota:

  • Formal proceedings – a probate court process which requires the approval and signature of a judge – although any hearing in Hennepin County, or Ramsey County, may be held before a probate court referee; and
  • Informal proceedings – a non-judicial process which only requires the approval and signature of a non-judicial officer known as a probate registrar.

Commencing Minnesota Probate – Notice Publication Charges

The publication of notice charges for either commencement procedure in Minnesota would be comparable, but would vary from county to county.

Commencing Minnesota Probate – Formal Proceedings

A Formal proceeding is commenced by the Probate Attorney by filing a Petition with the court on behalf of a petitioner, requesting that a judge, among other things:

  • make a determination as to the heirs of a decedent, and the validity of a Will, if any, and
  • appoint one or more Personal Representative(s).

A Formal commencement proceeding may be required in certain situations, such as:

  • when the estate is likely to be insolvent – which occurs when the liabilities of the estate exceed estate assets,
  • when there will be minor beneficiaries, or
  • in some counties, when the decedent owned real property which is subject to probate.

(i)      Hearing Requirements

A Formal commencement proceeding will require a hearing before a judge or probate referee.

(ii)     Appearance Requirements

The probate hearing will usually, but not always, require an appearance in the courtroom before a judge or probate referee, by the petitioner and his or her Probate Attorney.

However, county practice in this area varies significantly:

  • some counties will always require an appearance by the petitioner, and by the Probate Attorney,
  • while other counties may not require an appearance by the petitioner or Probate Attorney if no objections are filed to the petition.

To the extent that an appearance in court is required by county practice, a Formal commencement proceeding will usually cost more than an Informal commencement proceeding – in part because of the time required to appear at the hearing.

(iii)    Change in Probate Administration Requirements

In some counties, if probate is commenced Informally, but a judge’s signature is subsequently required with respect to some other probate matter:

  • a second filing fee must be paid for the Formal commencement proceeding, and
  • a second publication of notice must be made – this time with respect to the Formal commencement proceeding.

Since a judge’s signature may be desired:

  • to approve a Final Account, or
  • to decree title to real property,

in some estates it may be advisable to proceed Formally from the start, even if an Informal commencement proceeding may be all that is required in order to obtain the appointment of a Personal Representative.

Therefore, initially commencing a Formal probate proceeding will facilitate the Personal Representative’s access to the Court later on if a judge’s signature is required with respect to matters arising subsequent to the appointment of the Personal Representative.

(iv)    Bond – Formal Proceedings

A surety bond is a form of insurance policy obtained from an insurance company, which is designed to protect the beneficiaries of an estate from being deprived of their rights in estate assets by reason of the malfeasance of the Personal Representative(s) of the estate.

Minnesota statutory requirements for a bond in a Formal proceeding include the following:

No bond shall be required of a Personal Representative appointed in a Formal proceeding:

  • if the Will relieves the Personal Representative of bond, or
  • if all interested persons with an apparent interest in the estate in excess of $1,000, other than creditors, make a written request that no bond be required,

unless in either case the court determines that bond is required for the protection of interested persons.

(v)     Demand for Bond – Formal Proceedings

Any person apparently having an interest in the estate worth in excess of $1,000, or any creditor having a claim in excess of $1,000, may make a written demand that a Personal Representative give bond.

The demand must be filed with the court, and a copy mailed to the Personal Representative – if appointment and qualification have occurred.

However, if a nominated personal representative’s credit rating is questionable, such person may not qualify for a surety bond, and therefore, may not be able to serve as Personal Representative.

(vi)    Supervised Administration

A “supervised administration” is a Formal proceeding which will allow the probate court to have continuing jurisdiction and control over the manner in which the estate is administered after the Personal Representative has been appointed.

A supervised administration is a single in rem proceeding:

  • to secure complete administration and settlement of a decedent’s estate,
  • under the continuing authority of the court,
  • which extends until entry of an order approving distribution of the estate, and discharging the Personal Representative, or other order terminating the proceeding.

The primary consequence of a supervised administration is that the Personal Representative will be prohibited from making any distributions to the Will beneficiaries without receiving a court order.

Unless restricted by the court:

  • a supervised Personal Representative has, without any interim order approving exercise of a power,
  • all powers of a Personal Representative,

but shall not exercise the power to make any distribution of the estate without prior order of the court.

The probate court will also be authorized to impose additional restrictions on the powers of a Personal Representative in a supervised administration.

However, any other restriction on the power of a Personal Representative which may be ordered by the court:

  • must be endorsed on the letters of appointment, and,
  • unless so endorsed, is ineffective as to persons dealing in good faith with the Personal Representative.

(vii)   Unsupervised Administration

In contrast to a supervised administration, an unsupervised administration is a Formal probate estate classification where:

  • after the appointment of the Personal Representative,
  • the court will have no further involvement in the estate – unless an interested person requests some particular action.

(viii)  Who May Petition for a Supervised Administration

Minnesota statutes identify the parties who may request that an estate be supervised by the court.

A petition for supervised administration may be filed at any time:

  • by any interested person, or
  • by an appointed Personal Representative – or one named in the Will,

or the prayer for supervised administration may be joined with a petition in a testacy or appointment proceeding.

(ix)    When a Supervised Administration May Be Ordered

Minnesota statutes identify the circumstances which may allow a probate court to order a supervised administration.

After notice to interested persons, if the decedent’s Will directs supervised administration, the court shall order supervised administration of a decedent’s estate, unless the court finds:

  • that circumstances bearing on the need for supervised administration have changed since the execution of the Will, and
  • that there is no necessity for supervised administration;

However, if the decedent’s Will directs unsupervised administration, supervised administration shall be ordered only upon a finding that it is necessary for protection of persons interested in the estate.

If the decedent’s Will neither directs supervised administration, nor directs unsupervised administration, the court shall only order supervised administration if it is necessary under the circumstances.

Commencing Minnesota Probate – Informal Proceedings

An Informal appointment proceeding is commenced by the presentation to the probate registrar of an Application prepared by the Probate Attorney on behalf of an applicant with respect to:

  • the Informal appointment of one or more Personal Representatives by the probate registrar, and
  • the acceptance by the probate registrar of any Will for Informal Probate.

In some counties, the Probate Attorney will be required to appear in person before the probate registrar in order to file the Informal Application.

However, in other counties, the Probate Attorney will be allowed to submit the required probate documents to the probate registrar by U.S. mail, and no personal appearance will be required.

Notwithstanding the fact that the Probate Attorney may not be required to appear before the probate registrar when filing an Application for an Informal appointment proceeding, a party not represented by an attorney may be required to make a personal appearance before the probate registrar when filing such an Application in order to prevent mistakes or omissions in the probate documents.

The probate registrar in some counties may decline to approve an Informal Application for the Appointment of a Personal Representative if the decedent owned real property at death which was subject to probate.

Commencing Minnesota Probate – Notice Requirements

Regardless of which probate commencement procedure is used, either the applicant, or the petitioner, must give notice of the probate proceeding to all “interested persons“.

Commencing Minnesota Probate – Methods of Notice

There are two methods of notice required – Published notice, and Personal notice

Published notice is publication of the commencement of the probate proceeding in a legal newspaper in the county in which the probate proceeding is being commenced.

Personal notice is made by either:

  • mailing a copy of the notice of the commencement of the probate proceeding by first class US mail to all “interested persons“, or
  • personally delivering such a notice to the interested persons.

The published notice must be completed, and all personal notices must be provided, within certain statutory time frames.

In some counties, the probate court will:

  • issue the Order for Publication, and
  • send it directly to the legal publisher.

However, in other counties, the petitioner, applicant, or the Probate Attorney must make arrangements for publication of the notice without the court’s involvement.

Commencing Minnesota Probate – Proof of Publication

The legal notice publisher will provide an Affidavit of Publication to either the court, or to the petitioner or applicant, when publication of the notice has been completed.

However, in some counties, it will be the responsibility of the Probate Attorney to ensure that the published notice is completed within the statutory time frames.

Commencing Minnesota Probate – Proof of Mailing

The Probate Attorney must also file with the court an Affidavit of Mailing attesting to the completion of delivery of all personal notices.

Commencing Minnesota Probate – Failure to Provide Proof of Notice

If all of the legally required notices are not provided in a timely manner:

  • a judge or probate referee in a Formal proceeding will suspend the hearing, and reschedule it to another day, in order to allow the Probate Attorney sufficient time in which to provide all legally required notices; and
  • a probate registrar will not issue any “Letters” of authority for the applicant to act as Personal Representative until all of the legally required notices have been published and served.

Commencing Minnesota Probate – Persons Entitled to Notice

Interested persons” entitled to timely notice of the probate proceeding include, among others:

  • all of the decedent’s “heirs” as determined under Minnesota law,
  • all persons entitled to receive property under the decedent’s Will, if any,
  • all known creditors of the decedent’s estate, and
  • all persons who have filed a “Demand for Notice“.

Commencing Minnesota Probate – Demands for Notice

Experienced creditors – such as hospitals, collection agencies, and county medical assistance offices – routinely file Demands for Notice with the probate court – apparently because such creditors believe that the filing of a Demand for Notice will better ensure that they will be paid with respect to any claims they may have against the decedent’s estate.

However, such claimants may be mistaken – as the Demand for Notice itself will not improve their position as a claimant – although such creditors will receive notice of the commencement of a probate proceeding.

The practical effect of the filing of a Demand for Notice with respect to a decedent’s estate is that the Probate Attorney will be required to provide the demandant with 14 day advance notice of an intention to file any document with the probate court.

While the imposition of a 14 day delay in filing documents with the court is not a great hardship in itself, it does add to the paperwork burden, and the expense of administering an estate.

In some counties, the probate register will not approve an Application for Informal probate or Informal appointment if there is a Demand for Notice on file.

Commencing Minnesota Probate – Statement of Claim

Sometimes, creditors will file a Statement of Claim either together with, or independent of, a Demand for Notice.

The filing of a Statement of Claim may require some action on the part of the Personal Representative in order for the estate to avoid becoming liable for payment of the full amount of the asserted claim – by default.

Conclusion – Commencing Minnesota Probate

If you need assistance with commencing Minnesota Probate, contact 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

Legal Disclaimer

Information provided herein is only for general informational and educational purposes.

Minnesota probate law involves many complex legal issues.

If you have a specific legal problem about which you are seeking advice, either consult with your own attorney or retain an attorney of your choice.

Gary C. Dahle, Attorney at Law, is licensed to practice law in the State of Minnesota, in the United States of America. Therefore, only those persons interested in matters governed by the laws of the State of Minnesota should consult with, or provide information to, Gary C. Dahle, Attorney at Law, or take note of information provided herein.

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Nothing herein will be deemed to be the practice of law or the provision of legal advice. Clients are accepted by Gary C. Dahle, Attorney at Law, only after preliminary personal communications with him, and subject to mutual agreement on terms of representation.

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