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Helping You Navigate Complex Legal Issues

Probate and estate planning

Gregory A. Lang

Minnesota residents contemplating the most appropriate approach to estate planning for their needs may want to focus on the probate process as they make decisions. Probate is defined as the process of proving that an individual's will is valid, determining who the heirs are, handling the appointment of legal responsibilities such as conservatorships or guardianships where incapacitated or minor individuals are affected, and appointing a personal representative as needed. Probate may be necessary if an individual has died while owning real property in their name alone. Similarly, if personal property was held by a decedent alone, probate may be required.

Probate assets are those personal or real properties that were held only in the name of a decedent. A non-probate asset, on the other hand, is personal or real property that may have been owned jointly by a decedent and another party or that may have a designated beneficiary. Such assets may be assigned without the need for probate.

Having a will does not prevent the probate process from occurring, and an individual may or may not want to avoid the process. It is important to work with a professional who can provide personalized recommendations based on issues such as the assets held in an estate and the goals an individual has in determining how those assets will be distributed upon their death. In cases involving wills, the documents cannot proceed to probate until at least five days after an individual's death. Probate must occur for a will to take effect. Without a will in place, an individual's estate may be distributed according to the state law of intestacy.

Because every situation is unique, it may be helpful to discuss the specifics of one's wishes and assets with an estate planning lawyer. This may ensure that decisions are made in an informed manner and that related documents are executed in accordance with state laws.

Source: Minnesota Judicial Branch, "Estates", September 11, 2014

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