Formal versus Informal probate in Minnesota
There are many different types of probate administration’s under Minnesota Probate Code.
However, the two most common filings are formal probate and informal probate. This article we’ll discuss the difference between formal and informal probates.
Informal probates in Minnesota
An informal probate can be commenced by any interested party under the Minnesota probate. Interest interested parties include the nominated personal representative or executor in the will. Heirs of the deceased devotees of the deceased or a creditor of the deceased.
The statutory priority for appointment of a personal representative is the person nominated in the Will. If there is no Will, the priority of who can serve starts with: the surviving spouse and then the children of the deceased.
Once the applicant has been chosen, the applicant may file for an informal probate administration with the county of venue. Proper county venue will be the county where the deceased held lived the majority of their life.
The informal process utilizes a probate registrar which is a court appointed judicial officer who oversees and informal administrations in the county. The registrar acts as the judge and makes a determination whether the applicant may proceed forward with an informal administration.
In most case, an informal administration is utilized to have a quicker appointment of the personal representative. This can happen in both a testate or intestate probates. Dying “testate” means that the person died with a Will. “Intestate” means someone died without a Will.
The probate registrar will review the application and the facts of the case to make the determination. The registrar will also review whether proper notice of the probate has been given to the interested parties. Furthermore, notice will need to be published in a newspaper of general circulation in the county.
Sometimes the probate registrar will reject the filing due to problems in the estate. Common rejection items including problems with the Will, disputes between heirs, questions about ownership of property and, perhaps, large creditor claims against the deceased. There could be other issues that come up in the probate that a judge will need to make a determination of law to the facts.
Finally, it is important to keep in mind that the difference in time – in terms of how long the probate takes – may not be significantly different. It depends on the county that the probate is filed in and the facts of the case. A competent Minnesota probate lawyer should be consulted in all cases.
Formal probate administration in Minnesota
A formal probate administration is commenced with the filing of a petition for appointment of personal representative. In formal estate, the petitioner asks a district court judge to issue an order. This is different from a probate registrar issuing a “statement of probate.” In a formal administration, the judge will also make a determination that proper filings have been made, that the Will was properly executed, and that the heirs, creditors, and devisees are correct.
Judge will hold a hearing for the appointment of the personal representative. Once the hearing has taken place, and there are no problems or objections to the petition, the court will issue in order appointing the personal representative. The judge will also issue the Minnesota Letters Testamentary or the Minnesota Letters of General Administration. These letters will give the personal representative the power to act on behalf of the estate. The personal representative will serve as a fiduciary in both an informal and formal administration. The personal representative is required to look out for the best interest of all parties.
As discussed above, in a formal probate may be necessary due to problems with the deceased person’s Will. Also, disputes between heirs can create the need for a formal probate. Finally, large debts or creditor claims can necessitate a formal probate.
An attorney who has dealt with many probates will be able to spot issues and facts to make a determination of whether formal or informal administration is required. Additionally, it is important to keep in mind that there may not be a timing difference between formal and informal administration. At times, it could be best to file a formal administration because the personal representative may need additional powers which will be graded by a judge and which cannot be granted by the probate registrar.
Also, in most cases, the costs of the formal versus informal administration will be very similar. The attorney fees will be very similar. The fees are entirely fact specific.
Formal probate administration | Supervised or Unsupervised
It is also important to understand that in certain formal administrations, a party can request that the personal representative serve in a supervised or unsupervised administration.
In many cases, the personal representative may proceed in an unsupervised manner. This means that the court has very little oversight about the case. The court will also have very little oversight over the person representative and their actions. In an unsupervised estate, the personal representative can make payments to creditors and distributions to heirs without approval from the court.
Conversely, in a supervised probate administration, the personal representative is required to seek approval for all distributions. The court will have more supervision over the actions of the estate and the personal representative. More court hearings will likely need to be held.
The total costs of a supervised versus unsupervised administration is likely to be higher. This is due to the extra work involved with asking the court for permission on various issues. Supervised administrations may be advisable in cases where there are disputes between heirs, creditors, or what to do with the money in the estate.
Minnesota Probate Lawyers
Contact the Minnesota probate lawyers at Flanders Law Firm LLC if you have questions about the difference between formal and informal probate administration’s in Minnesota. You may also contact the office for answers about supervised and unsupervised estates in Minnesota. The firm has years of experience helping clients in all sizes of estates.
Call today for your free consultation at 612-424-0398.
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