Probate Proceedings-Formal

Probate is the process by which your individual property is transferred to your heirs and beneficiaries upon your death through the guidance and use of the probate court. There are two main types of probate proceedings – informal and formal.

In a formal probate proceeding, the death of the deceased must be established at a hearing. The authenticity of the will and its compliance with statutory requirements, as well as the competency of the deceased at the time the will was created by the Minnesota estate planning attorney is also reviewed. The witnesses to the signing of the will may be called upon to testify that the will’s creator, or testator, was of a sound mind at the time they made their wishes and signed the document.

To comply with statutory requirements, it must be established that there were two witnesses present when the will was signed and that their signatures are also on the will. If there are fewer witnesses than the two witnesses prescribed by law, the will is void and the testator’s assets will be distributed according to the law. If the validity of a will is in question and the will is contested, formal probate proceedings are required, with or without supervision of the court.

With or Without Court Supervision
There are times in which formal probate proceedings can be carried out without supervision. This may occur when the court needs to establish the heirs, resolve an issue, or if minors are involved.

When court supervision is needed, Minnesota law states that supervision must continue until the end of the probate proceedings. The end of the probate proceeding occurs when the probate court enters the order that approves the estate’s division and discharges of the estate’s personal representative. Whether court supervision is necessary or not is dependent upon the specific facts of the situation.

From Informal To Formal
There are times in which proceedings start out informally and must proceed formally. Real estate tends to be one of the reasons as to why proceedings must continue formally. Other reasons include:

  • Insolvent Estate in which a judge must determine the priority of payments for any expenses, such as those to creditors
  • No will with no determined heirs
  • Mistakes in the will
  • Disputes among heirs
  • The heirs are minors
  • Questions regarding the identity of the heirs
  • The original will cannot be located
  • Any writing on the will, causing its validity to be questioned
  • Questions regarding the mental state of the person at the time the will was written

Contact Eastlund Hutchinson at (952) 894-6400.