Commencing Minnesota Probate – Minnesota Probate Attorney Gary C. Dahle 763-780-8390, or [email protected]

Commencing Minnesota Probate

Reading the Will

Contrary to popular belief, there is generally no “reading of the Will” with respect to a Minnesota probate, 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 its filing with a Minnesota Probate Court.

Commencing Minnesota Probate – Filing the Will

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

Death Certificates

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

Thereafter, the proposed Minnesota Personal Representative should obtain a number of 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 Minnesota Probate Attorney will need in order to prepare the documents necessary for the initial Minnesota probate proceeding.

Minnesota Probate Attorney

After receiving copies of the death certificate, the proposed Minnesota Personal Representative should contact Minnesota Probate Attorney Gary C. Dahle, at 763-780-8390, or [email protected], in order to begin the probate process.

Commencing Minnesota Probate – Required Information and Documents

The Minnesota Probate Attorney commencing Minnesota Probate 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 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.

The names and addresses of all of the decedent’s closest relatives.

All available information regarding the decedent’s assets and liabilities – 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,
the identity of any life insurance policies, 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 Minnesota Probate Attorney can determine whether such property was subject to a joint tenancy.

If applicable, provide to the Minnesota Probate Attorney 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.

After obtaining the appropriate information, the Minnesota Probate Attorney will determine which of the decedent’s relatives must be:

identified on the Minnesota Probate Application or Petition, and
provided with notice of the Minnesota Probate

Commencing Minnesota Probate – Preparing the Initial Probate Documents

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

Commencing Minnesota Probate – Signing the Initial Probate Documents

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

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

Cost of a Minnesota Probate Proceeding

The funds required in order to start a Minnesota probate proceeding include the following:

(i) Probate Court Filing Fee.

The fee payable to the appropriate Minnesota Probate Court in order to commence a Minnesota probate proceeding may vary slightly from county to county, but is currently about three hundred dollars.

(ii) Cost of publishing the notice of the probate proceeding.

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

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

(iii) Retainer Fee.

The Minnesota Probate Attorney may require payment of a retainer fee in order to commence the Minnesota 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 estate, or of the proposed Minnesota Personal Representative.

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

Commencing Minnesota Probate – Procedures

There are two types of Minnesota Probate commencement procedures:

Formal Proceedings – a Minnesota Probate Court process which requires the approval and signature of a judge – although any hearing in Hennepin County, Minnesota, or Ramsey County, Minnesota, is usually held before a probate court referee who is not a Minnesota judge; and

Informal Proceedings – a Minnesota Probate non-judicial process which only requires the approval and signature of a non-judicial officer, known as a probate registrar.

Court Filing Fee

The court filing fee for a Minnesota Probate Formal Proceeding commencement procedure, or a Minnesota Informal Proceeding commencement procedure, is the same.

Publication Charges

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

Commencing Minnesota Probate – Formal Proceedings

A Minnesota Probate Formal Proceeding is commenced by the Minnesota Probate Attorney by filing a Petition with the appropriate Minnesota Probate 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 Minnesota Personal Representative(s).

A Minnesota Probate Formal 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 of the estate, or
in some counties – when the decedent owned real property which is subject to probate.

(i) Hearing Requirements

A Minnesota Formal Probate Proceeding will require a hearing before a Minnesota judge or probate referee.

(ii) Appearance Requirements

The Probate Court 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 Minnesota Attorney.

However, Minnesota county practice in this area varies significantly:

some Minnesota counties will always require an appearance by the petitioner, and by the Probate Attorney,
while other Minnesota 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 in-court appearance is required by Minnesota county practice, a Minnesota Probate Formal Proceeding will usually cost more than a Minnesota Probate Informal Proceeding, in part because of the time required to appear at the hearing.

(iii) Change in Administration

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

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

Since a judge’s signature may be desired to either:

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

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

Therefore, initially commencing a Minnesota Probate Formal Proceeding will facilitate the Minnesota 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 Minnesota Personal Representative.

(iv) Formal Probate – Bond

A surety bond is a type 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 – such as stealing money from the estate – which has happened on occasion.

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

No bond shall be required of a personal representative appointed in formal proceedings

(1) if the Will relieves the personal representative of bond, or

(2) 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.

Any interested person in a Minnesota Probate proceeding may request a surety bond, as follows:

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 Minnesota 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 the Minnesota Personal Representative.

(v) Probate – Supervised Administration

A “supervised administration” is a Minnesota Probate 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 Minnesota Personal Representative has been appointed:

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 Minnesota Probate supervised administration is that the Personal Representative will be prohibited from making any distributions to the estate beneficiaries without receiving a court order:

Unless restricted by the court, a supervised personal representative has, without interim orders approving exercise of a power, all powers of personal representatives under this chapter, but shall not exercise the power to make any distribution of the estate without prior order of the court.

The Minnesota Probate Court will also be authorized to impose additional restrictions on the powers of a Minnesota Personal Representative in a supervised administration, as follows:

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.

(vi) Probate – Unsupervised Administration

In contrast to a Minnesota Probate supervised administration, a Minnesota Probate unsupervised administration is a type of Minnesota Probate estate classification in which:

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

(vii) Probate – Requesting Supervised Administration

Minnesota statutes identify the parties who may request that a Minnesota Probate estate be supervised by the court, as follows:

A petition for supervised administration may be filed

by any interested person or

by an appointed personal representative or one named in the Will

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

Minnesota statutes identify the circumstances which may allow a Minnesota Probate Court to order a supervised administration, by providing as follows:

After notice to interested persons, the court shall order supervised administration of a decedent’s estate:

(1)       if the decedent’s Will directs supervised administration, it shall be ordered 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;

(2)       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; or

(3)       in other cases if the court finds that supervised administration is necessary under the circumstances.

Commencing Minnesota Probate – Minnesota Informal Proceedings

(i) Application

A Minnesota Probate Informal Appointment proceeding is commenced by the presentation to the probate registrar of an Application prepared on behalf of an applicant with respect to:

the Informal Appointment of one or more Minnesota Personal Representatives by the Minnesota probate registrar, and
the acceptance by the Minnesota probate registrar of a Will for Informal Probate.

(ii) Appearances

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

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 the commencement of a Minnesota probate 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.

(iii) Real Property

The probate registrar in some counties may decline to approve an Informal Probate 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 types of notice required in a Minnesota Probate proceeding:

Published notice – publication of the commencement of the Probate proceeding in a legal newspaper in the county in which the probate proceeding is being commenced, and

Personal notice – 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 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 Probate Court, or to the petitioner or applicant, when publication of the notice has been completed.

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 Probate 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 the Probate 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 the Minnesota 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 a Minnesota 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, because such creditors apparently 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.

If so, they may be mistaken – as the Demand for Notice itself will not improve their position as claimants – 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 a Minnesota probate estate.

In some counties, the Minnesota probate register will not approve an Application for Informal Probate 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 Minnesota Personal Representative in order for the estate to avoid becoming liable for payment of the full amount of the asserted claim by default.

Commencing Minnesota Probate – Conclusion

If you need assistance with commencing a Minnesota Probate administration, contact attorney Gary C. Dahle, at 763-780-8390, or [email protected].

For Minnesota Cemetery law issues see http://dahlelawcemeteries.com/

For information on Minnesota Church Corporation law, see also Minnesota Church Law.

For information on Minnesota Transfer on Death Deeds, see also http://www.dahlelawminnesota.com/minnesota-transfer-death-deed/

For information on Minnesota Real Estate Law, see also http://www.dahlelawminnesota.com/minnesota-title-evidence-ownership/

For information on Minnesota Guardianships, see also http://dahlelawguardianships.com/

Gary C. Dahle is also licensed in North Dakota.

For information on North Dakota Probate law, see https://www.dahlelawnorthdakota.com/

For information on North Dakota Transfer on Death Deeds, see also http://northdakotatransferondeathdeeds.com/

Gary C. Dahle – Attorney at Law

2704 Mounds View Blvd., Mounds View, MN 55112

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

[email protected]

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Links to Minnesota Probate Records

Minnesota Department of Health – Death Records Index – 1997 to Present: http://www.health.state.mn.us/divs/chs/osr/DecdIndex/dthSearch.cfm

Minnesota Historical Society – Death Records; 1904 – 2001: http://www.mnhs.org/people/deathrecords

Minnesota Department of Health – Birth Certificates – http://www.health.state.mn.us/divs/chs/osr/birth.html

Minnesota Historical Society – Birth Records: http://www.mnhs.org/people/birthrecords

Minnesota Marriage Records – https://moms.mn.gov/