What is probate?Probate is the process of administering the estate of a deceased person. The probate process has a few general purposes. The first is to determine how the assets of the estate will be distributed, or who will get what. The second is to resolve issues with any outstanding creditors of the deceased person. We act as a guide in helping families navigate the probate process.
What is the difference between “probate” and “non-probate” assets?Non-probate assets are those assets which you have made a separate plan for upon your death. Assets with proper beneficiary designations, transfer on death designations, or payable on death designations are considered non-probate assets. In addition, assets that are properly transferred into a trust are considered non-probate assets. Probate assets are any assets that are left over and will either pass according to your will, if you have one, or under Minnesota Statutes, if you don’t. Our estate planning practice group can help you develop a plan to keep your assets out of probate. Call us today.
Do I need to go through probate?Some estates have to go through probate and some do not. Whether your estate will have to go through probate depends on the assets involved. If you have over a certain amount of probate assets, your estate will have to go through probate. In addition, if you own real estate that is considered a probate asset, your estate will have to go through probate, regardless of the equity in the real estate. If you need help determining whether probate is necessary for you, please contact our probate practice group.
How do I begin to probate an estate?The probate process is initiated by filing a petition in the county in which the deceased person resided or owned real estate. Generally, this petition must be filed within 3 years of the date of death; however, probate is often times initiated much sooner to protect the assets in the estate and get the property to the heirs. We work with personal representatives across Minnesota to help them file probate in several counties, including, but not limited to: Anoka County, Hennepin County, Sherburne County, Isanti County, Wright County, Ramsey County, and Washington County. Our probate practice group provides a step-by-step approach to help personal representatives successfully initiate and complete the probate process.
Who is the personal representative?The role of personal representative can be pre-determined by the deceased person or may be chosen by the courts. Often times, the personal representative is appointed in a will. If there is no will in place, any interested party can petition the court to be appointed as personal representative and the court will determine who the personal representative should be.
What does a personal representative do?A personal representative, formerly referred to as an administrator or executor, is in charge of administering the estate and following through on the written wishes of the deceased person. A personal representative will create an inventory of the estate assets and document all transactions involving the estate. A large part of the job of the personal representative is to transfer the assets from the deceased person to his or her heirs. It is important for a personal representative to work with a Minnesota probate attorney to make sure the probate process is handled properly.
What is the difference between formal and informal probate?Minnesota provides for both a formal and informal probate process. The formal probate process has a greater level of court involvement. The informal probate process has less court involvement and is paperwork driven. Often times, the informal probate process will not even involve a court appearance. The formal probate process is preferred in the following circumstances: distribution to a minor beneficiary; unknown heirs or creditors; questions surrounding the will or trust; complicated family situations; the original will cannot be found; other issues with the will; or an insolvent estate. We work with personal representatives to determine whether formal or informal probate is the proper course of action.
How long does probate generally take?The probate process generally takes 6 months to a year. Depending on the complexity of the estate, this process can take much longer; sometimes even several years. Because probate is lengthy, it is important to get the probate process started right away to prevent unnecessary delays.
How much does probate cost?Between filing fees, publication costs, and attorney fees, the probate process generally costs several thousand dollars. These costs will increase greatly with a complicated estate or contesting family members.
Do I need to pay estate taxes with probate?Probate and estate taxes are two separate issues. Probate does not determine whether you will pay estate taxes at the Minnesota or federal level. Whether you owe estate taxes upon your death depends solely on the value of your estate.
Many Minnesotans mistakenly think that having a will is all they need to disperse their assets. However, even with a will, a probate hearing may be necessary depending on the type of assets in the estate. Probate can involve long, confusing, and costly court proceedings. The best way to handle a likely probate of your loved one’s estate is to sit down with an experienced probate lawyer to provide knowledgeable information and guidance for proceeding. By the same token, guardianships and conservatorships may seem confusing and even mystifying, but a skilled and patient guardianship lawyer can clear up any questions and bewilderment you may have.
These fees can amount to thousands of dollars. The estate is responsible for all fees and costs. The personal representative appointed to administer the estate needs to pay to open the probate and the assets from the estate are not available until the probate is opened. The personal representative cannot even be appointed until the probate is opened, so the cost of opening the probate must be paid with funds other than from the estate. It can be a catch 22.
There are two types of probate, informal and formal.
If the application is accepted and the probate is fully administered, then the personal representative can take the necessary steps to close the estate.
When probate is necessary, the best course of action is to talk to a probate lawyer. The death of a loved one is stressful enough without the added complications of notifying family and friends, interpreting a will, and trying to figure out what comes next. The lawyers at Bolt Hoffer Boyd can be your trusted and professional guides through the entire process, ensuring that all of the deadlines, filing requirements, and specific procedures are met and fulfilled. Call us for a free probate phone consultation to determine whether probate is necessary in your situation.
Guardianship & Conservatorship
There may come the time when someone you love needs special care and attention to personal affairs. A court appoints a guardian or a conservator depending on what type of decisions need to be made for the protected person, ward, or conservatee.
Wards are minors or incapacitated adults who lack sufficient fitness or capability to make or communicate responsible personal decisions and for whom the court appoints a guardian. The guardian is authorized to make decisions for the ward on such matters as where to live, medical decisions, education, training, and more.
A guardian must assure that provisions have been made for the ward’s care and comfort. This includes food, social requirements, and health care. If possible, the guardian should meet these needs through government programs rather than using the ward’s estate.
Guardians must respect the ward’s moral and religious beliefs when enabling the ward to receive necessary medical and professional care. They also have to take reasonable care of the ward’s personal effects, like clothing, furniture, etc.
On at least an annual basis, the guardian must file a report with the court describing the ward’s well-being. This report must contain the ward’s current mental, physical, and social condition. The living arrangements and all addresses of the ward covering the period of the report must be accounted for. In addition, all services, including medical, educational, and vocational, must be reported. Finally, the guardian must provide a recommendation as to whether the guardianship should continue.
The conservatee or protected person is the legal name for a person for whom a conservator has been appointed because he or she lacks the capacity or ability to make necessary decisions regarding his or her financial affairs or estate.
The nomination of a conservator, or conservatorship planning, involves a document, like a will, that names the person you, the protected person, want as your conservator. The document can also spell out how the conservatee wants financial matters managed by the conservator. Since conservatorships are subject to court supervision, having an attorney represent your interests is an added safeguard for the conservatee’s property.
The conservator is required to provide an inventory of the conservatee’s estate within 60 days after being appointed. The conservatee’s estate includes real estate, furniture, clothing, mortgages, debts or notes, bonds, and any other property. Since the conservator must file an inventory of the conservatee’s property with an accounting and other reports to the court annually, the conservatorship offers a high degree of protection to the conservatee.
Conservatorships are not without disadvantages, however. They are time-consuming and expensive. As indicated, the conservator must keep detailed records and file papers with the court regularly. Conservatorships often require court hearings and the continued assistance of an attorney.
The support, maintenance, and education of a conservatee are paid for by the conservator, using government benefits when available. The conservator pays the conservatee’s debts and manages the conservatee’s estate. The conservator must sometimes post a bond that serves as a guarantee that the conservator will discharge his or her duties faithfully. The court may also require that certain transactions must be approved before the conservator may act, such as selling real estate or entering into unconventional investments.
Alternatives to a Conservatorship or Guardianship
A competent person may establish a revocable living trust and avoid the need to appoint a conservator of his or her estate. The appointed trustee would assume management of the financial affairs upon the trustor’s incapacity.
A durable power of attorney is a document delegating power to an agent to make financial transactions. Again, the person must be competent to execute a durable power of attorney and the agent is not subject to court review.
A person may nominate an agent to make health care decisions on the person’s behalf using a health care directive. Such a directive can include a provision allowing for the suspension or continuation of life support treatment. Specific instructions as to health care may also be provided in the directive. As with the living trust and durable power of attorney, the person must be competent to execute a health care directive.
If you need legal advice regarding probate, call our experienced probate lawyers at Bolt Hoffer Boyd for compassionate and professional guidance particular to your situation. Our experienced attorneys will help you determine if probate is necessary, and, if so, walk you through the intricate probate process step-by-step.
If you or someone you love is unable to meet personal needs for medical care or financial decisions and investigating a guardianship or conservatorship would be a reasonable consideration, get your questions about the process answered by calling for a free consultation with our skilled guardianship lawyers at Bolt Hoffer Boyd.
Finally, if you are worried about subjecting your family to the complicated process of a probate, guardianship, or conservatorship proceeding, the estate planning lawyers at Bolt Hoffer Boyd may be able to help you utilize one of these alternative planning tools to avoid involving the court in your personal affairs.