Probate is the legal proceeding wherein the court oversees the marshaling of a decedent’s assets, the payment of estate taxes and creditors’ claims, and the distribution of the remaining assets. If there is a will, the assets will pass to those named therein. If there is not a will, the assets will pass to one’s legal heirs as determined by Minnesota state law.
What is the Probate Process?
The probate process begins with the executor of a will filing a petition with the court to “open” the probate. If there is no will, anyone with an interest in the estate may petition the court to become the personal representative. If more than one person seeks to become the personal representative, a court hearing will be held to determine who should do it. Once the probate is opened, the court provides paperwork — known as letters testamentary — that state the executor or administrator has authority to act on behalf of the estate to open accounts, locate assets, transfer them to the probate estate, and in some cases, sell assets.
How Long Does the Process Take?
Due to state laws that determine how long assets must be held, hearings and a congested court system, probate in Minnesota usually takes between 12 to 16 months. However, not all probate actions are exactly identical. More often than not, the larger the estate, the more involved the process.
Living Trust / Avoidance of Probate
A Living Trust can be used to hold legal title to your assets and provide a mechanism to manage them. You (and your spouse) are the trustee(s) and beneficiaries of your trust during your lifetime. You also designate successor trustees to carry out your instructions as you have provided in case of death or incapacity. Unlike a Will, a Trust usually becomes effective immediately after incapacity or death. Your Living Trust is “revocable” which allows you to make changes and even to terminate it. One of the great benefits of a properly funded Living Trust is the fact that it will avoid probate and minimize the expenses and delays associated with the settlement of your estate.