It is almost a universal maxim that everyone wants to avoid probate. My question for this article: what if everybody is wrong? In my opinion as a Minnesota probate attorney who has been practicing for a number of years, probates are not necessarily such a bad of thing.
What exactly does Minnesota probate mean?
Probate is simply a process set up by the law in Minnesota (and all other states) whereby a deceased person’s assets are distributed and their debts are paid. This can be a very good thing for heirs and creditors alike. Again, probate is a court and legal process by which a personal representative in the state of Minnesota is appointed to collect all assets and determine all debts (creditors) of a deceased person’s estate.
It is really that simple. A judge may supervise the process, or, and some cases, a judge will allow the case to proceed unsupervised without further court intervention unless it becomes necessary.
What are the different forms of Minnesota Probate?
In an unsupervised probate administration, which is the most common administration, a personal representative is appointed by the court. Again, the personal representative is responsible to the court, to creditors, and to all of the beneficiaries of a deceased person’s estate. The personal representative will be paid a fee for their work. It is extremely important but also thankless job.
A supervised and perhaps “formal” administration is a process where a hearing is held before a District Court judge in the county where the deceased person lived. The personal representative is formally appointed by court order. The judge has a supervisory capacity overall actions of the personal representative. Furthermore, distributions to heirs and payments to creditors cannot be made until a judge approves those decisions.
In either instance, it is necessary to have a Minnesota probate attorney. Obviously, this creates costs. Costs are a part of life and most people understand that there are costs associated with complicated legal issues. As a younger attorney, I used to apologize about this to my clients; however, I’ve stopped doing so. This is because, I have come to realize that it is a complicated but necessary process (in many instances) and it is the best way the legal system has to deal with difficult estate, fighting heirs, and personal representatives that just won’t pay off creditors.
Why are so many people afraid of probate?
The reason that people are afraid of probate, in my opinion, is that overzealous marketers and people trying to sell Trusts tell the general public that probate is an unnecessary cost. This may or may not be true, but is not necessary a bad thing.
At times, I have work with individuals whose loved ones that are passed away who had Trusts drafted by other lawyers. Often, the Trusts are well drafted and good legal documents. However, the Trusts are often misunderstood and not funded properly by the people who wanted the Trust set up in the first place. At the end of the day, people often have pieces of paper called “Trusts” that, for all intents and purpose, do not mean anything. Furthermore, even though people have these “Trusts”, their estates we still need to be probated because the Trust was not administered properly during the person’s life. Furthermore, these Trusts may have even cost the person $4000. So, this point someone is paid for $4000 Trust but will still have to go through a probate process. I am not saying that Trusts are a bad estate planning tool (they are a great estate planning tool) but they are very often misunderstood.
In sum, it is important that people have lawyers that they trust and respect to work on their estate planning documents. These may be a Will or a Trust. It is also very important that people meet with a lawyer prior to death so that they understand the legal process. The legal cost behind doing Minnesota estate planning is minimal in comparison to what complicated probate administration will cost. It is obvious, but it is important to be on top of things before someone dies so that money will be saved for the heirs and not for the court.
For further information on Minnesota probate and estate planning, contact an attorney that you can trust. We would like to be that kind of attorney for you and your family. Please contact Joseph M Flanders at Flanders Law Firm LLC at 612-424-0398
Very informative! Some people avoid probates because they thought it is a very costly process when in fact most states allow a certain amount of property to pass free of probate, or through an expedited probate procedure. Get advice from a trusted lawyer to be enlighten with regards to probate.