Some estates do not require probate either because of proper planning, the amount of the assets in the estate or how the assets are titled in the estate. There are times when an estate should be probated but it is not for various reasons, one of which is simply because the heirs are unaware that probate is needed.
People often ask, “What happens if an estate is never probated?” For some estates the lack of probate may not be an issue. Usually the heirs of an estate realize that probate is, or was, needed when they hit a wall administratively, meaning they now require a court document to act on behalf of the estate or decedent or to transfer title. In Minnesota, the statutory limitation to file a probate is within 3 years of the decedent’s death. If assets need to be transferred and require title to be transferred after 3 years, individuals need to seek a Decree of Descent.
Decree of Descent vs. Probate
A Decree of Descent is similar to probate in that the proceeding is before the court to determine the proper heirs and to ensure property is passed correctly. When an estate is probated, the court will ultimately issue Letters to the personal representative to give the personal representative the authority to distribute assets. Likewise, in a Decree of Descent, a party interested in the estate must file a petition with the court seeking determination of descent and proper distribution of assets. The court will issue an Order to declare the true heirs and order property to be transferred accordingly.
A Decree of Descent can take as much time and expense as a traditional probate and can be handled pro se or with the help of an attorney. While it is not advisable to forgo probate in hopes of avoiding probate altogether, if you do find yourself in need of probate, but beyond the statutory limitation to file a probate, know that there is a way to settle the estate through a Decree of Descent.
