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What is the difference between informal and formal probate?

Gregory A. Lang

As Minnesota residents may know, probate is the process through which an estate is settled and property is transferred. Generally, this method assures the validity of a will as well as providing a vehicle for cataloging assets as well as identifying and appraising them. Once debt and any taxes owed by the estate are paid, the remaining assets are dispersed as the will intends. In the absence of a will, state law will determine distribution.

Under Minnesota law, there are two forms of probate. Formal probate is used when there are questions and inconsistencies associated with the estate or if minor children exist. This form of probate is handled in district court and may be unsupervised or supervised. Formal probate may require a judge to issue an order. In addition, it is a required format if the will is lost or if the heirs are unknown and if disputes are expected. Formal probate is also needed if the estate is insolvent.

The other form probate may take is an informal process. This does not require the input of the district court, and it is filed with the probate registrar who is empowered to deny informal probate at his or her discretion. If this occurs, formal probate may be used.

Since informal probate is unsupervised, it lacks the need for court decisions or intervention and assumes the will is solvent, the heirs are known and the will is available. It is particularly useful if probate needs to start quickly and is prohibited if a survivorship clause is involved.

Choosing the proper format for probate may be made easier with the insight an attorney may provide. The attorney may help the family move through the probate process and help the executor deal with challenges to the will or estate.

Source: Minnesota Judicial Branch, "Probate / Estates", January 04, 2015

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