When a loved one passes, the last thing any person wants to think of is legal matters and attorneys. Unfortunately, in the midst of the grieving process certain matters must be taken care of and the property of the deceased must be properly distributed. If given the choice, most would prefer to handle these matters on their own, but it is often necessary to involve the Probate Court to receive permission from a Judge to transfer a decedent’s property.
Probate Court is a division of the Minnesota District Civil Court system that handles the legal process of settling an estate after a person has died. Now, having to receive the blessing of the Court is not the end of the world by any means, but the process can take a lot of time, effort, and money. It may or may not be necessary to involve the Court to handle the distribution of a person’s estate. Generally speaking, whether probate is necessary depends on how assets are titled and held at the time of death and probate is often necessary when personal assets exceed $50,000.00 and real property is owned individually or as a common tenant by the deceased.
The probate process begins simply with the filing of a preliminary petition with the Court requesting that the Court appoint a Personal Representative to represent the decedent’s estate. The Personal Representative’s duty, along with his or her attorney, is to take the laboring oar to collect all property owned by the decedent, create an inventory, obtain appraisals of assets, take measures to protect those assets, pay debts, and distribute the remaining assets to the proper beneficiaries as directed by the estate plan of decedent and by the law. The Probate Court oversees the process and will issue an order authorizing what ultimately will happen to the property of the decedent.
Many factors can affect how long the probate process will take. There may be intricate family arrangements to take into consideration, disputes between family members, and potential legal issues. Some estates settle fairly quickly and others can drag on for years. Also, depending on the situation, it is possible that Court fees and attorney bills can rapidly accumulate. These costs will reduce the assets owned by the estate because the estate of the deceased must pay all fees before distribution of the remaining property. So, again, most would prefer not to have to go through Probate Court because it takes a lot of time, effort, and money.
How can probate be avoided? In my experience, the number one false assumption people seem to make is that if a person dies leaving a Will, then there is no need for probate. However, a Will does not automatically remove the decedent’s estate from probate. A Will is merely directions from the decedent as to what should happen with the property owned by the decedent. Again, whether probate is necessary depends on how assets are titled at the time of death.
If your goal is to avoid probate, a quality estate plan put together by your attorney can save those surviving you from having to go through probate after your death. Not only that, a good estate plan can prevent beneficiaries from losing a portion of their inheritance to creditors and to the attorney(s) settling the estate. Some very basic things can be done to decrease the necessity of probate. For example, if you are married and would like your home to pass to your spouse without involving the Court, make sure you and your spouse own title to the home as joint tenants (not as common tenants). You could also name beneficiaries on life insurance policies and set up your financial accounts to be payable on death.
Regardless, do not neglect to put together an estate plan. As the saying goes, the only things certain in life are death and taxes. Those surviving you will be thankful you have a well organized estate plan. It will relieve them from the burden of settling your estate and your loved ones will be free to simply mourn your loss as they should.
*This article does not constitute legal advice and is not intended to constitute advertising or solicitation for legal services. Nothing in this article should be construed by you as a source of legal advice. You should not rely or act upon the contents of this article without seeking advice from your own attorney.