Probate Basics

When a person has died, his or her financial affairs need to be wrapped up in a process called estate administration. Depending on the circumstances, it is often necessary to conduct a court proceeding known as a probate proceeding. Probate is the legal process, overseen by the probate court, by which the estate of the deceased person is administered. The probate process involves collecting and liquidating assets, determining and paying expenses and taxes, and distributing what's left as an inheritance. If the person left a Will, it becomes the centerpiece of a probate proceeding because it nominates who is to be in charge (the personal representative) and sets forth who is to inherit. The probate process is typically uncontested and non-confrontational, but each case involves unique circumstances.

The personal representative (also known as executor or administrator) plays the lead role in the process. The personal representative becomes the owner of the deceased person's property and is responsible for the administration of the estate. Beneficiaries, creditors, the attorney for the personal representative, and the referee or judge are other players in the process.

Minnesota has several different types of probate procedures. No one procedure is appropriate for all cases. The facts and circumstances of each case will determine which procedure is best. Because of the complexity of this area of law, few attorneys take probate cases. One of the best things a personal representative can do is retain a knowledgeable attorney to guide him or her through the probate process. Many have tried to handle a probate proceeding on their own, but few (only about 15% in Minnesota) successfully complete a probate proceeding without the help of an attorney.

For many people, the drawbacks of delay and cost are associated with probate administration. Both are topics that should be discussed initially when hiring an attorney. In some situations, two alternative procedures exist. If one is considerably faster or less expensive, that decision becomes very important. We need to remember that many of the same steps need to be taken whether the estate administration involves a probate proceeding or not. The expense or delay is often caused by something happening during a probate proceeding. For example, if a house is to be sold, the costs and delays associated with it exist either way. It is easy, but in many cases unfair, to place the blame on "probate."

For additional information, please contact one of the Estate Planning attorneys at Henningson & Snoxell:

• Susan Peterson, Chair
• Jim Snoxell 
• Lori Skibbie