- A will is the last wish of the person above 18 years of age just prior to his death made in writing, attested, and made self-proved, by acknowledgment thereof by the maker.
- A decedent or the maker of the will by the will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession.
- A will may provide for the passage of all property the testator owns at death and all property acquired by the estate after the testator's death.
- A will is valid irrespective of the place where it is drawn, or of the location of the assets or the nationality, domicile, or residence of the testator, if it is made in the form of an international will complying with the requirements of sections.
- In Minnesota, a will must be signed before two witnesses. The full name, date of birth and address of the testator (the person whose will it is) must be included on the document.
- The will may be filed before the death of the testator with the probate court by paying fee for filing. If the will is filed after the death of the testator no filing fee is to be paid.
- A person died without a will is called the died intestate. The property of the decedent is known as intestate property.
- A probate is the process of administration of property of the deceased relating to collection and distribution of property and handling other details pursuant to a legal proceeding.
- An augmented estate includes the value of the decedent's probate estate, after deducting the funeral and administration expenses, the homestead, family allowances and exemptions, liens, mortgages, and enforceable claims.
Probate procedure is governed by the code of civil procedure in the State of Minnesota.
NECESSARY DOCUMENTS FOR PROBATE PROCEEDING
- A copy of the will.
A death certificate of the testator or a certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, that the testator is missing, detained, dead, or alive issued by an official or agency of the place where the death purportedly occurred.
A probate is required if a person dies and:
- the person owns personal property in his/her name alone that is valued more than $20,000.
- the person owns real property in his/her name alone.
The petition for execution of Will may be filed with a District Court Judge of the state of Minnesota. Upon filing the petition
- a notice of probate proceedings may be given to every interested person or to unborn or unascertained persons, who are not represented by giving notice to all known persons whose interests in the proceedings are substantially identical to those of the unborn or unascertained persons.
- a person is to be appointed as a Personal Representative to handle the estate of the decedent. Responsibilities of the personal representative may be:
- Collection, inventory, and appraisal of assets.
- Protection and preservation of assets.
- Payment of taxes and debts of the decedent and their estate.
- Distribution of remaining assets to the proper parties as specified by law.
Closing the estate.
If any part of a Minnesota decedent's estate is not effectively disposed of by will, the intestate share will be distributed in the following order and manner:
The intestate share of a decedent's surviving spouse is:
the entire intestate estate if:
- no descendant of the decedent survives the decedent; or
- all of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;
the first $150,000, plus one-half of any balance of the intestate estate, if all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent, or if one or more of the decedent's surviving descendants are not descendants of the surviving spouse.
Heirs other than surviving spouse
Any part of the intestate estate not passing to the surviving spouse or if there is no surviving spouse, passes as follows to:
Decedent's descendants, through the method of dividing an estate where a class or group of individuals take the share which their deceased ancestor was entitled to (had he or she lived), taking by their right of representing the deceased ancestor.
- Decedent's parent or parents equally.
- Decedent's parents' descendants, through the method of dividing an estate where a class or group of individuals take the share which their deceased ancestor was entitled to (had he or she lived), taking by their right of representing the deceased ancestor.
- Decedent's grandparents or their descendants.
Decedent's next of kin in equal degree.
- Half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents, or either of them if both are deceased.
- The other half passes to the decedent's maternal relatives in the same manner.
- If there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, however, the entire estate passes to the decedent's relatives on the other side in the same manner as the half.
If there is no taker under any of the above provisions, the intestate estate passes by default ("escheats") to the state of Minnesota.
Rights Of Adopted Child
By virtue of the adoption the child shall inherit from the adoptive parents or their relatives the same as though the child were the natural child of the parents.
In Minnesota it usually takes about six months to complete the normal probate proceeding.
- It requires about 30 days to have a personal representative appointed by the court
- A four month period for creditors to file claims and this period of time must pass even if there are no debts owed by the decedent.
- It then takes about 30 days to prepare and complete the final accounting process in the estate.
If the estate contains real estate and it takes an extended period of time to sell the real estate, the probate process may take longer.
The fees paid to each executor or administrator and attorney varies depending upon the size of the estate.
- The minimum fees is 4% of the for the first $100,000 value of the property and,
- 3% of the next $100,000,
- 2% of the next 800,000,
- 1% of the next 9,000,000,
- 1/2 of 1% of the next 15,000,000.
However, the court determines the amount of the fees for the excess over $25,000,000 of value.