In every Minnesota probate estate, a personal representative needs to be appointed. At times, the process by which that person gets appointed can be complicated.
An important provision is the nomination of a personal representative as contained in Minnesota Statute § 524.3-203(c). This law permits people who are entitled to act as personal representative to be nominated. The question is, who gets nominated and why?
Nomination of a Minnesota Probate Personal Representative
“Interested persons” have priority to be appointed as a personal representative. The list of priority includes:
(1) the person with priority as determined by a probated will including a person nominated by a power conferred in a will;
(2) the surviving spouse of the decedent who is a devisee of the decedent;
(3) other devisees of the decedent;
(4) the surviving spouse of the decedent;
(5) other heirs of the decedent;
(6) 45 days after the death of the decedent, any creditor;
(7) 90 days after the death of the decedent and pursuant to section 524.5-428, paragraph (b), any conservator of the decedent who has not been discharged.
The persons who are “qualified to nominate” include:
- the surviving spouse
- other devisees of the Will
- any other heirs of the estate.
If there was no Will, the heirs of the estate and the surviving spouse (if there is one) have the power to nominate a personal representative. Another important thing to keep in mind is that, if the heirs cannot agree on who should be nominated, that person nominated in the Will should ask the court for permission to serve in a “formal administration.”
Priority to Serve as Personal Representative
A nomination is preferable when a person has priority for appointment. When two people share priority, those people should renounce their right to serve and/or nominate the other person to be appointed. Again, if even one person is missing in the nomination process, a formal administration will be necessary.
Formal Probate Administration
Often, the siblings will not agree on who should serve and they do agree to nominate one particular person. In this instance, my advice to the person nominated in the Will (who is the person who most often comes into my office) is that they start a formal administration.
A formal probate administration is not necessarily a bad thing. It does, however, change how the estate is administered. If it is a formal administration, the personal representative must have their actions approved by a judge. Additionally, there must be a court hearing for many of the actions taken by the personal representative. At times, this can raise the cost of the probate estate.
In sum, it may not be possible to get all necessary nominations from the parties who have “priority” under the law. Minnesota probate attorneys understand this and you should speak with qualified lawyer if you run into this problem.
Minnesota Probate Attorneys
If you have questions about the nomination of a personal representative and/or Minnesota probates, contact Flanders Law Firm LLC at 612-424-0398.
