Estate Planning: What is Probate?

Probate is the legal process of settling an estate in court after a person dies. It includes the identification and inventory of the deceased person’s property, payment of debts and taxes, and distribution of the remaining property as directed by the will. If there is no will, the property will be distributed according to state law. The probate process transfers legal title of property from the decedent to his or her beneficiaries. The personal representative nominated in a will is responsible for probating the will. If no personal representative was named or there is no will, the court will appoint one.

If a person dies with a will (“testate”), the probate court determines if the will is valid, hears any objections to the will, and supervises the process of paying creditors and distributing the remaining property according to the terms of the will. If a person dies without a will (“intestate”), the probate court appoints a personal representative, determines the decedent’s heirs, and supervises the process of paying creditors and distributing the remaining property in accordance with the laws of the state.

Having a will does not avoid probate. The need for probate depends on the property owned by the deceased person and whether they owned it alone or with other persons. For example, if a person owned a piece of real estate in Minnesota solely in their name at the time of their death, probate would be required to transfer title of that property from the deceased to the beneficiary. However, if the real estate was owned by the decedent along with another person in joint tenancy with right of survivorship, then a probate proceeding would not be necessary to transfer title of the property to the surviving joint tenant. In Minnesota, if an estate is worth less than $50,000, it may be possible to avoid probate by the use of an Affidavit for Collection of Personal Property. If the value of a decedent’s personal property exceeds $50,000 or they owned real estate in their name alone, then the estate will need to be probated.

Probate begins by filing an application with the probate court and ends when all debts and taxes are paid and all assets are distributed. The applicable probate laws are generally those of the state in which a deceased person resided at the time of their death, as well as any state in which the deceased owned real property. Multiple probate proceedings may be required if a decedent owned real property in more than one state at the time of their death.