Informal vs. Formal Probate Proceedings

/ December 27, 2010

Informal Probate

In Minnesota, an informal probate proceeding is relatively straightforward and simple, as compared to Formal Probate. Informal Probate can be used for both testate and intestate estates.

Informal commencement of a decedent’s estate is made by Application to a probate registrar, not a judge. Since there is no formal hearing, it is important that the Application be filled out completely and correctly because the Application is the basis for all subsequent decisions made by the registrar.

The Application contains such information as:

  • the names of the heirs (intestate) or devisees (testate)
  • which assets are subject to probate
  • all necessary personal information regarding the decedent

An Application must be submitted between 120 hours and 3 years after the decedent’s death. This odd timeframe is to provide flexibility in determining survivorship. Whether an applicant must make an appearance before the probate registrar depends on the county where the Application is filed. Oftentimes, the Application can be simply submitted by mail.

If the registrar approves the Application, then the personal representative will be appointed and notice can be made to interested parties to the estate and to the public by publication. Interested parties include, but are not limited to, heirs or devisees, the personal representative, guardians, and creditors.

After those notices are made, then the Registrar will issue Letters authorizing the personal representative to act after a 30-day waiting period during which the personal representative may not sell, encumber, lease or distribute any interest in real estate owned by the decedent.

If the registrar does not approve the Applications, then oftentimes it is because the Application failed to meet statutory requirements or appears to need a formal proceeding.

Formal Probate

Formal probate is commenced when a petition is filed with the Probate Court to make a determination when there is an issue with a decedent’s estate and therefore the probate cannot proceed informally. These issues can include:

  • Distributions could be made to minor heirs or devisees
  • Not knowing who or where the heirs are
  • Not knowing who is entitled to be appointed personal representative
  • The Will is missing
  • There is a question about the validity of the Will
  • The possibility exists that the estate could escheat back to the State
  • Disputes among the heirs

Once a petition is filed with the Probate Court, then notice must be given to all interested parties. Upon completion, there is a hearing on the Petition. After the hearing, the Probate Court will then issue an order. This Court Order is then binding on all interested parties to the estate.

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