Probating the estate of a loved who has passed away

By Glen R. McCluskey, Attorney At Law

 

For clients whose loved one has passed away, dealing with the deceased person’s personal affairs, real estate and other property can be quite a challenge.

Even though the picture of what it means to probate an estate is painted as something to be avoided at all costs, this is not really the case.  Let’s start by explaining what probate is, what it is for, and how you fit in.  Often, those most concerned about probate after a loved one passed, are those either named as the Personal Representative of the estate or are simply the one left with the responsibility of sorting things out.

Prior to becoming an attorney, this was my situation with my mother who died some years ago at age 86.

What is probate?

Probate is a legal process that is based on each state’s laws which detail what happens to a person’s property when they die.  Whether there is a will, or not, and whether there is a trust of not, probate may be required by the law.

The law is concerned about each person’s property and who will inherit it when they die. The deceased person is obviously no longer around to look after their interests. Going back to old English law, there are thousands of published legal cases about abuses by greedy heir and non-heirs after a death. Further, Hollywood movies have also found this storyline rich with characterizations about what may happen.

The court is most concerned that property goes where the deceased person wanted it to go and that debts and other obligations are fulfilled.  It is therefore also concerned about fraud, theft, and any earlier undue influence on the person who has died.

At its essence, if a person dies and there is no will, a complex set of laws fairly clearly provide where the property goes.  Property includes real estate, money, stocks and bonds, household good, Hummel figures, and family heirlooms.  However, the same is true if a will exists. The courts will generally protect what the decedent has written in their will about who gets what, with certain important exceptions.

The court is historically interested in the family homestead and how it passes. The same is true of the family farm.  In Minnesota, if the deceased person owned real estate and the deed does not state that it goes to another person at death or is otherwise co-owned, then probate is needed to transfer it, even if the transfer is specifically stated in a will.  Once the deceased person is gone, it may be open season for unscrupulous people to manipulate the paperwork, or simply destroy it, ensuring that things go to them.  The court looks into this and oversees the post-death transfer process in an attempt to eliminate these shenanigans.  This is probate.

The Probate Process

In Minnesota, the probate process is starting by filing a petition to the probate court; either to process the will, or if no will, determine according to law who gets what.  The petition application is somewhat long and complicated.  Doing it wrong will ensure it is rejected and you will have to fix it and start over. There is also a fee to the court to begin probate which is about $325. There are other costs involved including attorney fees.

Along with the petition must be attached various other forms and documents so that the court has what it needs to make certain determinations as provided by law.  Notices must also be properly provided to all heirs, interested parties, creditors, and often the county.

Explaining the entire process is beyond the scope of this article.  However, an experienced attorney will be able to do what is needed and help you navigate through the probate jungle.

Timeline for Probate

Probate takes a while.  The law does not allow a petition to be filed until at least 30 days after death. Then when you do file, it may take 1-2 months for the court to do what it needs to do.   Finally, if there is real estate, the Personal Representative of the estate is not able to sign papers to transfer the property until 30 days after the court names a Personal Representative.

Who files the Petition?

The Petition must be filed by an “Interested Person” as defined by the law.  Often it is the Personal Representative named in the will.  If no will, it is often a son, daughter, or other person that would inherit under the law.  The attorney assists them in property filing out the documents, gathering others and working with the court.

Probate Judge and Registrar

In Minnesota, the law allows for informal, formal, supervised, and unsupervised probate.  Most probates as informal. These are probates that are less uncomplicated and uncontested.  The Probate Registrar and not the Probate Judge is allowed to handle these from start to finish.  In each county, the Probate Registrar is a skilled and experienced person who reviews the application and attachments to see if the meet what the law requires.  The application will ask that the registrar (or Court) to name one of more Personal Representatives who will be the named legal representative for the estate. They will gather the assets, pay the bills, and distribute what is left to those who are supposed to get it.  Once that is all done, the probate estate is closed and the Personal Representative is “released.”

If the probate is beyond the scope of what the Registrar can legally handle, it must be filed as a formal probate and sent to a judge.  This requires at least one court appearance by the Personal Representative and their attorney.  There is a hearing at which anyone can appear and testify. This means that disgruntled heirs, creditors, government officials, and others often show up and argue that they are deserving of some of the assets.   The judge is charged with sorting all this out according to the law and the facts. Someone has to do it in contested matters and the judge has the final say. The judge will ask for and listen to testimony and review other document until they can figure out what to do about all the contested issue.

The final outcome will be one or more court orders stating the legal outcome and often exactly who gets what.

This can take a lot a time and money and can prolong hard feelings, often for generations. This part of probate is to be avoided, if possible.

Avoiding Prolonged Probate

Probate often cannot be avoided such as the example of certain real estate above.  However, long drawn out probates can be avoided by careful planning by the property owner before death.

These means having a properly drawn up will and perhaps also a trust.  Certain types of probate-avoidance techniques are allowed in the law.  These include transfer on death deeds for real estate, or putting some or all of property in a trust which does not die.  In a trust a living trustee is giving ownership with a set of instructions.  The trustee then does what they are told to do after the owner dies without probate.  This often does not work perfectly however, which means that some of the property may still need to be probated.

Granting of Letters

One outcome of the probate process, whether formal or informal, is the granting of “Letters” by the court. If there is a will, the Personal Representative will get “Letters Testamentary.”  If there is no will the Personal Representative will get “Letters of General Administration.”  In either case, the powers granted to the Personal Representative are essentially the same.

These Letters name the Personal Representative who can then act for the estate and do what is needed. Financial institutions, brokers, insurance agents, and the like will not be able to deal with just anyone who purports to be gathering the assets.  They need assurances that they have the right person.  Presenting them the Letters signed by the judge or registrar provides them the legal comfort to hand over the assets; often by check payable to the “Estate of”.

 Conclusion

Each estate and family situation is unique.  Most people faced with handling the estate of a loved one have not done so before.  It is best to work with an attorney familiar with the process to guide you through.  If you do not, the process will take longer, you may frustrate the Probate Registrar, and you will likely make mistakes.  You can reduce stress and the burden placed on you, by finding the right attorney to work with.

If you are the Personal Representative, you likely take this role very seriously and realize that gathering the estate assets, paying the creditors, and dividing up all the property and money, down to the last detail is important to the family and family relationships.  This is true whether the estate is large or small.  Although the deceased person is gone, the family must continue to live together and get along.  Your attorney should be sensitive to this also, along with the legal requirements and nuances.

I will be happy to talk with you about how to handle an estate after death and planning for these issues in advance.  Please contact me.

 

Glen R. McCluskey

Attorney At Law

651-646-2669

glenlaw@glen-law-office,com

THIS DOCUMENT IS NOT LEGAL ADVICE AND MAY NOT BE DEEMED TO BE LEGAL ADVICE.  IT DEALS ONLY WITH THE MATERIAL SPECIFICALLY DISCUSSED HERE.  YOUR SITUATION WILL BE BASED ON YOUR OWN FACTS AND CIRCUMSTANCES.  YOU ARE ENCOURAGED TO SEEK THE ASSISTANCE OF YOUR OWN LEGAL COUNSEL AND TAX ADVISOR.