Probate

Probate law is presenting a will in court so the document can be validated and administered. It is the legal court process for paying a person's debts and expenses and distributing a person's property after that person's death. In a probate matter, the person who has died is called the "decedent," and his or her property is called the "estate." Usually, a decedent's debts are paid from the estate and any property remaining is divided among heirs or beneficiaries, according to a Will or according to state law. In order for the wishes of a loved one to be carried out the document must go through this process.

Minnesota probate law applies to people who lived in Minnesota when they died and to residents of other states who owned real estate in Minnesota. Whether a matter is "probated" depends on a number of factors, including the type of property and the nature of the ownership of that property. For example, unless real estate (a home, a cabin, a farm, etc.) was transferred into a trust or was owned as "joint tenancy" property with a right of survivorship, it usually is subject to the probate process. If you are considering a will, you should consult with an attorney about the ownership of any real estate and whether there are advantages to certain types of ownership.

What is an executor or administrator?

This is a personal representative, named in your will, who oversees payment of your debt and distribution of your assets according to your will after you have passed away. This individual is considered a fiduciary - meaning they must observe the highest standard of care when dealing with your estate. They are in charge of paying your creditors, paying your taxes, notifying social security and other agencies of your death, canceling your credit cards and subscriptions, and distributing your possessions and assets as you've deemed in your will. Anyone can be chosen to fulfill this responsibility, however it is commonly an adult child, a relative, a close friend, or a trust company. If more than one person is appointed to this job, all representatives must agree on any decisions. If no one is named in your will, a judge will appoint a personal representative to oversee your affairs.

Can my personal representative handle my affairs if I become too sick to do myself?

No. A will takes effect only after your death. If you want someone to handle your affairs if you become disabled or incompetent, there are a number of options, including a health care directive and/or a power of attorney.