When is Probate Required?

A probate proceedings is required if probate assets owed by the decedent’s estate include real estate (the decedent’s interest in the real estate did not automatically transfer to someone else at death), or if the value of all probate assets exceed $75,000.00.  Probate assets include any asset owned by the decedent that didn’t automatically transfer to someone else upon the decedent’s death.  Only probate assets are distributed in a probate proceeding.

Assets that automatically transfer to someone else at death through some legal mechanism other than probate are called “non-probate assets.”

When is Probate Not Required?

Collection of Personal Property By Affidavit

For a smaller estate, a probate proceeding may not be necessary.  In Minnesota, it may be possible to avoid probate if:

  1. the value of all probates assets wherever located, less liens and encumbrances (e.g. mortgages, liens, or security interests) does not exceed $75,000.00.
  2. thirty (30) days have passed since the decedent’s death;
  3. no probate application has been filed in any state, and no personal representative has been appointed by a probate court; and
  4. the person claiming the asset is entitled to the property.

The procedure for collecting personal property is described in Minnesota Statute 524.3-1201, and the Minnesota Judicial Branch provides forms on its website.  While it may seem appealing to employ this method to avoid the time and expense of probate, it is important to do some investigation to confirm whether the statute applies to your particular situation (e.g. confirm the value of all probate assets doesn’t exceed the maximum, confirm that no probate proceeding has been started somewhere else, and determine who is “entitled” to the property).  If you have questions, please contact our office.

 

Communities Served

Hennessey Law Office PLLC serves clients in the Twin Cities greater metropolitan area, including the cities of Apple Valley, Burnsville, Bloomington, Eden Prairie, Edina, Minneapolis, Prior Lake, Richfield, St. Louis Park, St. Paul, Savage, Shakopee, and other surrounding communities in Hennepin County, Ramsey County, Dakota County and Scott County.