I have been asked by clients about the meaning of formal and informal probate in Minnesota. As a Dakota County probate attorney, I feel a little obligated to try and answered their questions.
Many factors need to be taken into consideration when determining whether or not to administer an estate formally or informally.
The follwoing are some of the more common factors which may suggest that the estate should be administered formally:
Issues with the Probate Heirs
- Any uncertainty related to the identity of the heirs
- There is an innacurate description of the heirs or devisees
- There are illegitimate children of the deceased
- There are problems with the survivorship requirements under that will
- Distributions will be made to a minor heir
- There is an existing dispute between the heirs (or one is suspected)
- An heir caused the death of the deceased.
Issues with probate of the Will
- The original Will cannot be located or is proved destroyed
- The Will is not dated (In Minnesota, a testator must by 18-years-old to execute a Will. if the will is not dated, determining the age of the deceased is going to be a problem).
- There are problems with the execution of the Will – e.g. failure to follow formalities, undue influence, and capacity questions
- There are handwritten changes to the Will
- The Will does does not have a residue clause or has incomplete dispositions of real or personal property
- The Will provides for excess distributions (more than the estate is worth)
- The Will fails to nominate a personal representative and the heirs do not agree who should be appointed personal representative.
There are other issues which could cause the need for a formal probate administration. The list above only serves as an example of possible reasons why probate should proceed formally.
Furthermore, if the estate will concern the sale of real estate (a home of the deceased), then a lawyer may want to proceed formally with the probate administration. Many county recorders will not recognize a probate registrar’s determination of heirs, which may cause the title to be unmarketable when it is later transferred. However, if the intent is to sell the property during administration of the estate, or if the Will includes a specific devise of the real property to a specific heir who is correctly named, then, in most instances, the lawyer and personal representative can proceed informally.
Finally, an insolvent estate (one in which the deceased’s debts exceed his or her assets) should alwyas be administered formally. This is because a judge or probate referee will need to deteremine the priority in which the decedent’s debts should be paid by the personal representative.
For further information on the probate of estate in Minnesota and Dakota County, contact Joseph M. Flanders at Flanders Law Firm LLC.
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