To Help You Get a Better Understanding of What Probate Is and What Role it Plays in Estate Planning, Let’s Take a Look at Some of Probate’s General Principles
UNDERSTANDING PROBATE IN MINNESOTA
GERMAN LAW GROUP MINNESOTA & NORTH DAKOTA ESTATE PLANNING ATTORNEYS
When new clients come into an estate planning attorney’s office, they can easily be overwhelmed by many of the terms and concepts surrounding the topic. The reality is that most people don’t give the state planning much thought before they begin the process, and they certainly don’t have much experience with the legal realities surrounding the issues involved. One of the main topics people are most unfamiliar with is the area of probate. Like other aspects of the law, probate law is state specific. Every state has its own collections of probate laws that are, though similar, slightly different. However, there are some general principles involved regardless of the state in which you live. To help you get a better understanding of what probate is and what role it plays in estate planning; let’s take a look at some of those general principles.
DEATH AND THE LAW If you want to be a big hit at social events, start talking about death and its legal realities whenever possible. The fact is death is a topic most people avoid talking about in polite company. When they do talk about it, it’s usually only with close friends, clergy, and family members. Unfortunately, while you will probably feel more comfortable talking about this sensitive subject with those you know best, those people usually don’t know much about the law.
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The law deals with the practical realities that arise out of a person’s death through a process known as probate. Probate is designed to address all the unanswered questions left behind after a person dies. For example, who will inherit your property? Are there any unpaid debts that you still owe? If so, who will pay for them, and with what money? Who will be responsible for managing the property left behind by a deceased person? Probate answers all these questions. Because dying happens to everyone, and people die every day, every state has created specific courts designed to deal with these types of questions. These are called probate courts. The probate courts are responsible for governing the process that determines what happens to a person’s interests after he or she dies, and making sure that process complies with the probate laws the state has adopted.
THE PROBATE PROCESS So, to get a better understanding of how this process works, let’s take a look at a common example. Let’s say a person dies leaving behind a home, some investments, some personal property, as well as a handful of debts. Once that person dies, a friend or representative will have to go to a probate court and ask the court to open a new case. The representative does this by filing what’s called a petition. A petition is simply a legal document that asks the
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probate court to open a new case and determine what should happen to the deceased person’s property and other interests. Once the court opens a case, it will then appoint someone who’ll be responsible for managing the property owned by the deceased person. This person is called the personal representative, but is also sometimes referred to as either the executor or the estate administrator. The property left behind by the deceased person is collectively known as the estate. So, once the court has appointed the personal representative, the representative will get to work determining what should happen to the estate. There are several steps involved in this process. For example, the representative will have to take an inventory of all estate property. He or she will also have to file a notice with any potential creditors and allow them to file claims if they believe the deceased person, called a decedent, owed them money. Next, the personal representative will have to determine if the creditor claims are valid. If so, he or she will have to use estate money to begin paying those claims back. All of this is done in accordance with state probate codes. The probate code is a collection of laws that outline what the personal representative has to do during this process. Though the court oversees each probate case, it is the personal representative’s responsibility to go about the day-to-day task of resolving the issues left behind after a person dies. This is commonly referred to as “settling” the estate.
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LIVING PROBATE Though probate courts are primarily responsible for dealing with the issues left behind after a person dies, they can also get involved in cases involving someone who is still alive. These types
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the probate court is asked to answer involves
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of cases are, naturally, referred to as “living
someone who is alive but who is not capable of making his or her own decisions. For example, let’s say you are involved in a
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serious car accident. The accident leaves you comatose and unable to speak, communicate, or make any indication of what your desires and choices are. What happens to your property in this situation? Who will look after your children? Who make medical decisions for you and communicate with your doctors? All of these questions have to be answered, but because you cannot communicate, you need someone else to answer them for you. This is where the probate courts get involved. The court will have to appoint representatives who will be responsible for managing your affairs. Depending
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on your situation your representative could be your spouse, a close family member, or someone else the court deems appropriate.
PROBATE OPTIONS If all of this sounds complicated, it very often is. Probate cases are notorious for the detailed procedures and rules involved. What’s important to know is that probate is quite often an optional process. People can make choices that will allow them to, in most situations, avoid probate either completely, or minimize it to a great extent. Not only can you choose representatives who will represent you if you are unable to represent yourself, you can also choose who will represent your estate during the probate process. You can even create tools that will allow almost all of your estate to avoid probate. If you’d like to know more about these options speak to an estate planning attorney for detailed advice.
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About the Author Raymond J. German As an attorney in Minnesota and North Dakota, Raymond J. German provides a wide range of estate planning and title services to his clients, with a primary focus on helping them provide for the security of their loved ones, reduce estate taxes and avoid or at least minimize the costs and delays of probate, all with a well-crafted estate plan. Mr. German defines the mission statement for Raymond J. German, LTD. Law Firm as "Helping one family at a time pass on values, beliefs and finances that can be shared for generations to come." Mr. German is well aware of the growing importance of estate planning and dedicates himself to informing the public of the need for careful attention to their specific situations. He is a frequent speaker on a variety of estate planning topics, regularly presenting educational seminars for the public as well as private groups. Raymond J. German approaches each challenge with not just solid expertise, but also remarkable enthusiasm and vigor. By constantly seeking simpler, better, and more effective ways of doing things, he continues to make a real difference in the lives of families and on the way estate planning is practiced by attorneys around the country.
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