Frequently asked probate questions

What are probate assets?


Probate assets are items of property owned by a deceased person that do not have a beneficiary, pay-on-death, or transfer-on-death designation or are not owned jointly with another person. While many assets often have a designated beneficiary or surviving joint owner, when an asset does not have a designated beneficiary or is owned solely by the decedent it is considered a probate asset. Probate assets are subject to the rules of probate. In Minnesota, probate may be avoided and probate assets may be collected through the use of an Affidavit of Collection of Personal Property when the total value of all the probate assets is less than $75,000 and does not include real estate. If real estate is a probate asset, probate will always be required.




How long does probate take?


In a simple administration, it usually takes 4-6 weeks for the personal representative to be appointed. After being appointed the personal representative can begin collecting the assets and paying debts. The personal representative can close an estate in as little as 4 months, but a tyipcal administration will take 6 - 12 months.




Do you charge a percentage of the estate?


No. Legal fees for probate and estate administration are charged on an hourly basis. Minnesota ethics rules do not permit attorneys to charge a percentage of the estate and all fees must be reasonable.




Is probate required even if we have a will?


Whether probate will be required depends on whether there are probate assets. If there are probate assets, probate is usually required. If the decedent had a will, the person nominated as personal representative in the will has priority to be the executor and distribute the estate according to the terms of the will.




Can we probate a copy of a will?


If the original will cannot be found, we can submit a copy of the will for probate. This will require formal administration.




Do we need to go back to the attorney that drafted the will?


Not necessarily. Working with the attorney that prepared the estate plan can be beneficial in many instances. The attorney will be more familiar with the estate documents and the decedent's wishes. However, sometimes the attorney that drafted the will has retired or the family prefers to work with someone else.





 

Ward & Oehler, Ltd.

 

1765 Greenview Drive SW

Rochester, MN 55902

(507) 288-5567

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