Minnesota Probate | How do I get letters testamentary?

how do i get letters testamentaryMany clients call my office with similar questions.  One of the main questions I get is:  how do I get letters testamentary in Minnesota?  I will try my best to answer that question in this post.

How do I get letters testamentary in a Minnesota Probate?

There are many issues that should be analyzed prior to starting a Minnesota probate.  I have recently written several posts on the topic of starting a Minnesota probate.  Please read them and then continue on with this post.

In this instance, I will assume that either a meeting with the probate registrar has happened or a hearing with a district court has happened.  In order to receive letters testamentary from the court, certain court pleadings (documents) must be filed with the court.

Notice

Notice is one of the hallmarks of the law.  Notice is often referred to as “due process”.  If you don’t know what that means, contact a probate lawyer.  Basically, each personal representative and their lawyer must give notice to “interested parties”.  Interested parties include heirs of the estate and creditors of the estate.

In an informal probate, a Notice for Informal Probate of Will (assuming there was a Will) and a Notice to Creditors needs to be approved by the court.  From there, two things should happen:  (1) a copy of that court-approved notice should be filed in a newspaper of general circulation in the county where the deceased person resided, and (2) the personal representative must mail a copy of the notice or a clipping from the newspaper to all interested persons.

Who should the notice be provided to?

The probate notice, in addition to being published in the newspaper, should be mailed to the following individuals:

  • Surviving Spouse
  • Adult Children of the Decedent
  • Minor and Adult Children of the Decedent
  • Heirs, Devisees, and Anyone Named in a Separate Writing
  • Creditors
  • Foreign Consul
  • Attorney General
  • Commissioner of Human Services

What should I do after I have provided notice?

The court always wants proof.  Proof comes in the form of documents.  Thus, the personal representative needs to provide the court with an Affidavit that they provided the proper notice to the above parties.  Failure to tell the court that this was done will certainly result in a failure to receive letters testamentary.

Furthermore, an “Affidavit of Notice to the Commissioner of Human Services” must be filed.  Just like the Affidavit of Service, this Affidavit shows the court that the personal representative gave the proper notice to the state of Minnesota.  Why is this done?  Because the Commissioner of Human Services keeps track of all medical assistance claims paid by Minnesota for expenses of last illness and care.  This is often referred to as “medical assistance”.  I have also written posts on probate and medical assistance issues.  Feel free to read those posts for more information.

Finally, an Affidavit of Publication must be filed with the court.  The Affidavit is often sent to the court by the newspaper where the initial notice was published.  The newspapers don’t always do this, so the personal representative and their attorney need to check on this.

Receiving Letters Testamentary

Assuming all of the above was completed by the personal representative and the probate attorney, the court will issue Letters Testamentary (or, in the case of a person who died without a Will, Letters of General Administration).  Finally, this is also assuming that the estate was started properly.  The probate begin with the filing of a Petition or Application with the court – which is something I did not cover in this post.  Please read the links above for question on that issue.

Free Initial Consultations

Questions about first time personal representative duties?  Contact the Flanders Law Firm today.  The firm offers free consultations to all potential clients and Dakota County probates.  Call (612) 424-0398.

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