What Is Probate & Why Does it Matter?
Why probate? The main purpose of probate is to transfer ownership of property
from the person who owned it, but has died (the decedent), to his or her
heirs and beneficiaries. If there is no property to transfer, there is
usually no need for probate.
Probate also allows any taxes and debts that are owed by the decedent to
be paid, and it sets a deadline for creditors to file claims (this prevents
old or unpaid creditors from haunting the decedent’s heirs or beneficiaries)
and for the distribution of the remainder of the decedent’s property
to the rightful heirs.
If the decedent’s property included land in another state, the laws
of the other state govern who inherits it unless there is a will. If there
is a will, after it is admitted to probate in the home state of the property,
it usually must be submitted to probate in the other state. This other
probate procedure is formally referred to as “ancillary probate.”
If there is no will, probate is usually required in each state where the
property is situated, in addition to the home state.
Contact us to learn more about Minnesota probate law.
Common Issues During Probate
Before we cover how
our team of Minnesota probate attorneys here at Johnson/Turner Legal handles probate,
it's important to first establish common issues that arise during the process.
During probate, you can expect to deal with the following issues:
Asset management. During probate,
the Personal Representative (the individual responsible for overseeing
funeral arrangements, notifying creditors and beneficiaries of probate,
determining the value of assets, etc.) plays a key role in asset management. Asset management involves keeping up with insurance
payments, maintaining property, and evaluating assets.
Debt management. The decedent's assets may be used to pay off any outstanding debts, which
may change how the beneficiaries proceed with the will.
Taxes. Depending on the value of assets, the Personal Representative may need
to file an estate tax return.
Real estate management. Certain property may have to be sold, which can take a significant amount of time.
Heirs. Heirs must receive a notice of the probate, as well as various documents
like an asset inventory.
Advances to the Estate. The Personal Representative may have to loan money to the estate while
assets are sold, which will be repaid prior to the distribution of assets
Family dynamics. It often falls to the Personal Representative to make sure all family
members are on board with the
trust established by the decedent. The Personal Representative will also need
to keep family members consistently updated and try to quell any discontent.
There are four different types of assets commonly involved in probates:
- Real Estate
Financial assets (bank account, etc.)
Personal possessions (jewelry, etc.)
During probate, the Personal Representative and court work together to
determine how assets are liquidated to repay creditors (if necessary),
as well as take the necessary steps to make sure the decedent's will is
followed to the letter and beneficiaries receive the assets left to them
in the will or trust.
To determine whether probate is necessary in your case, we recommend scheduling
a consultation with one of our probate lawyers in Minnesota here at Johnson/Turner Legal.
What If There's a Will?
A will cannot transfer property, so probate is generally necessary even
with a will, though it depends on the value and the nature of the property.
For smaller estates, there is a less formal procedure that must be followed
before the deceased’s property can be legally distributed. But even
that is still under the general supervision of the probate court.
How to Probate a Will
If a person dies with a will, a court generally has to provide an opportunity
for others to object to the will and, if there are any objections, determine
if the will is valid. Some things that can invalidate a will:
- A more recent will (which, if valid, replaces the older will).
- The will was made at a time the deceased was not mentally competent to
make a will.
- The will was the result of fraud, mistake, or “undue influence.”
- The will was not properly executed.
- The will is a forgery.
- For some other reason (such as a pre-existing contract) the will is not
- There are other claims against the deceased’s estate that impact
what the beneficiaries would receive under the will.
For example, if the deceased owned real estate in his own name, no knowledgeable
outside person would accept title to the property, and no bank would lend
a new buyer mortgage money on it, unless the estate went through probate
so “clear title” could be given to the new owner.
Similarly, few outsiders would enter into any other transactions involving
the deceased’s property before the will is “admitted to probate”
and someone is lawfully appointed to act for the estate. Feel free to
contact a Minnesota probate lawyer from our team for more information
on How To Probate a Will.
The Johnson/Turner Legal Difference: How We Guide Clients Through Probate
At Johnson /Turner Legal, we help our clients tackle every step of the
probate process head-on, so they never feel alone.
When you bring us on board to help you with a probate process, these are
the steps we take:
Initial meeting. If a different attorney wrote the decedent's will, we meet with them to
discuss goals, issues, and concerns. Then, we determine how to move forward.
Begin the court process. We'll petition to get you appointed as the Personal Representative of
the decedent, kicking off the probate process. Depending on the formality
of the probate, we may appear before the court with you for an initial hearing.
Public notice. We publish notices about the probate for two consecutive weeks to notify
creditors and interested parties and provide them with a time limit to
file a claim against the
Receive letters. Documents called Letters Testamentary give the Personal Representative
authority to act on behalf of the estate. A certified copy of these letters
can be used to open an Estate checking account, sell assets, and fully
administer the estate.
Asset appraisal and collection. The Personal Representative obtains value estimates for assets and commences
with liquidation or collection, depending on the probate.
Inventory. Within six months of filing, the Personal Representative must provide
an asset inventory.
Estate tax returns. We'll help you determine if an estate tax return has to be filed and
work with you to submit one if necessary.
Settlement of debts. If assets must be liquidated to repay creditors, the Personal Representative
oversees the process.
Fiduciary tax return. If the estate earns income after the decedent passes away, the estate
may have to pay taxes on that income.
Sale of real estate. If creditor claims expire and 30 days pass after the Letters Testament
are issued, real estate property can be sold.
Distribution of specific gifts. If the will stipulates beneficiaries to receive gifts of money or property,
the Personal Representative and court ensure the decedent's desires are honored.
Final account, the proposal for distribution, and consent. At this stage, the Personal Representative and court make sure everything
is in order (all debts paid, assets valued and collected upon, etc.).
Necessary documents are sent to the estate's heirs, as well as a proposal
for how assets will be distributed.
Distribution of residuary estate. Any remaining assets will be distributed to the appropriate beneficiaries
once everyone signs off on the above documents.
Court hearing. There's a final court hearing to approve the formal settlement of the estate.
Closing of the estate. Finally, the Personal Representative files a final statement with the
court, indicating that the estate has been fully administered and finishing
the probate process.
We make a difference to our clients by offering them three things:
Transparency. We'll always keep you in the loop, so you never feel like the probate
is getting away from you or are unsure about what's going to happen next.
Estate checkbook management. Most law firms lean on the Personal Representative to manage the estate
checkbook. Not us. We know that managing the estate account is one source
of stress you don't need after the death of a loved one, so we handle
it for you.
Fixed-rate pricing. With our pricing model, you pay for the services we provide, not the
time it takes.
The death of a loved one can start a complicated, confusing, and sometimes
expensive process called probate. Grief can make it very hard to face
pressing issues and make sound choices. We'll help you get from the start
to the end of the probate process.
Set up a consultation with a skilled Minnesota probate attorney.
Contact us online or via phone at