Probate
Key takeaway
In Minnesota, for example, probate establishes a will’s validity, while estate administration settles and distributes the estate under the probated will and applicable law. Other states differ.
Probate and appointment are separate steps
In Minnesota, for example, informal probate of a will and informal appointment of a personal representative are distinct proceedings that may be combined. Other states differ.
Informal appointment is available whether or not the deceased person left a will. Applications go to the registrar and must be verified as accurate and complete to the applicant’s knowledge and belief.
Formal testacy is a court proceeding, with notice to interested persons, to establish a will or determine intestacy. It may include a request to appoint a personal representative, but need not do so.
What happens to property at death?
In Minnesota, for example, real and personal property passes at death to recipients under the will or, absent a testamentary disposition, to heirs, subject to administration and statutory protections. Other states differ.
Substitute recipients may take because of lapse, disclaimer, renunciation or other circumstances affecting who receives property.
The transfer remains subject to statutory property protections, statutory allowances, creditors’ rights and the surviving spouse’s elective share. It does not establish unrestricted possession or immediate distribution.
Does every administration action need a court order?
Usually not in Minnesota, for example, where the personal representative must settle and distribute the estate expeditiously without a court order for each action, except as specified or ordered for supervised administration. Other states differ.
The representative may use court proceedings authorized by the governing chapter to resolve questions about the estate or its administration.
Two related terms
Personal representative. In Minnesota, for example, this term includes executors, administrators, successor representatives, special administrators and people performing substantially the same function under the law governing their status. Other states differ.
Intestacy. In Minnesota, for example, intestacy governs property not disposed of by will, which passes to statutory heirs after spousal and family allowances, except as modified by the will, which may expressly exclude an heir. Other states differ.
A question about the experience of probate
"Has anybody been through probate in this room where they had a problem? Where things dragged on a long time anyway because someone just volunteer?"
Common questions
Where does the first probate or appointment proceeding belong?
In Minnesota, for example, the first informal or formal testacy or appointment proceeding belongs in the county of domicile at death or, for a nonresident, any Minnesota county where their property was located at death. Other states differ.
Can someone act as executor just because the will names them?
No, in Minnesota, for example, a person must be appointed by the court or registrar, qualify and receive letters before acting as executor. Other states differ.
The representative must act as a prudent fiduciary in settling and distributing the estate under any probated, effective will and applicable law.
Does informal administration mean there is no court proceeding?
No. In Wisconsin, informal administration remains a circuit court proceeding, but it proceeds without continuous court supervision and covers estates with or without a will.
Administrative action by the probate registrar is not court action. Records are maintained in the same manner as for formal proceedings.
Sources
- Minnesota Uniform Probate Code: sections 524.1-201, 524.2-101, 524.3-101, 524.3-103, 524.3-201, 524.3-301, 524.3-401, 524.3-703 and 524.3-704 support the definitions, property transfer, appointment, venue and administration explanations.
- Wisconsin informal administration statutes: section 865.01 distinguishes circuit court proceedings from continuous court supervision and registrar action.