Minnesota Probate | Opening an Informal Estate

by Flanders Law Firm LLC on June 9, 2012

Lawyers in who practice in the area of Minnesota probate have many decisions to make when faced with new estate.

The lawyers will meet with the personal representative of the estate and make some initial determinations prior to filing a petition or application with the proper court.  The attorney will usually need to determine the size of the estate.  For instance, if the estate has a value of over $50,000, then the lawyer and the personal representative will not be able to use the “small estate” administration laws in Minnesota.  Instead, they will need to consider a “formal” or “informal” estate administration.

As I stated, a probate proceeding starts with the filing of either a petition or an application with the court of jurisdiction.  The court of jurisdiction can change based on several different factors; however, the typical court of jurisdiction is the court in the county where the deceased person (decedent) died.  Therefore, in Minnesota, if the decedent died in Dakota County, then the proper court of jurisdiction would be a Dakota County court.

If a lawyer knows that there are not any specific “contested” issues related to the estate and how it will be administered, and the estate has over $50,000 in assets, then most lawyers will proceed to filing an “informal” petition or application with the court or probate registrar.

One continuing legal education (CLE) course that I attended estimated that 60% of probate practice in Minnesota consists of “informal administration”.  The reason for this is that informal administrations are generally easier, cheaper, and arguably faster in terms of administering the estate from beginning to end.

Time limits to file a probate estate

An application or petition for an informal administration can be filed any time after 120 hours (5 days) have gone by since the decedent’s death.  Also, a probate estate cannot be administered after three years have passed since the decedent’s death.  If an estate administration is not brought within three years after the decedent’s death, then only a petition seeking a decree of descent can be filed to determine the persons who may be entitled to receive probate assets.

Informal probate administration

An informal probate proceeding starts when the petition or application is filed with the appropriate probate registrar.  The probate filing fees vary by county.  For instance, in Dakota County MN, the probate filing fee is $320.00.

The application or petition must contain the information set forth in Minnesota Statutes section 524.3-301.  Furthermore the petition must follow the proper probate rules, and any local rules, if any.  Obviously, the lawyer you are working with is obligated to know these rules and the applicable law.

The information contained in the application is the basis for all subsequent findings which may be made by the probate registrar.  Once the application is made and signed by the personal representative, the attorney may set up a meeting with the registrar depending on what county the estate is filed in.  In an informal administration, there will not be a hearing, only a meeting with the registrar.

During the initial meeting with the probate registrar, the attorney and the personal representative should bring the original application and the decedent’s Will.  These documents are needed to receive letter of probate administration so that the personal representative can lawfully administer the estate.

The lawyer and the personal representative should also bring the personal representative’s acceptance of appointment and any renunciations or nominations of the personal representative.  Finally, many Minnesota counties require proof of the decedent’s death. This can be accomplished by having either a death certificate or an obituary.

The probate registrar does not have to approve the application or petition for an informal probate administration.  If the registrar determines that, for some reason, the estate should proceed formally, he or she can order “formal administration” or dismiss the petition.

Therefore, the attorney and the personal representative need to be very careful that they follow the proper rules and procedure when filing an application for informal probate administration.  If the application for informal administration is dismissed, they may have to file a new application for “formal administration” – which may not be wanted.

 

– For more information about opening an in formal probate estate, contact Joseph M. Flanders, a Minnesota probate lawyer.

 

 

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