Probate can be a lengthy process in Minnesota. It generally takes a minimum of six to twelve months, but it can extend beyond that, often lasting a year or more. Complex estates or disputes among beneficiaries can further lengthen the process.

The executor named in the will, or the administrator appointed by the court if there's no will, is responsible for managing the probate process. This person, often with the help of an attorney, is tasked with inventorying the deceased's assets, paying off debts, filing taxes, and eventually distributing the remaining assets to the beneficiaries.

The executor or administrator of the estate is responsible for notifying creditors of the deceased person's death. Creditors have a certain time frame, typically four months from the date of appointment of the executor or administrator, to file their claims for payment.

If the estate has enough assets, the debts are paid. If not, creditors are generally paid on a pro-rata basis.

Probate assets:
• Real estate
• Bank accounts
• Brokerage and investment accounts
• Promissory notes
• Business interests
• Contracts for deed
• Stocks and bonds
• Vehicles and boats
• Life insurance or retirement assets payable to a decedent's estate

Non-Probate Assets:
• Assets owned as a joint tenant with right of survivorship
• Accounts established with “payable-on-death” (POD) or “transfer-on-death” (TOD) arrangements
• Life insurance and retirement assets in which a beneficiary (other than the estate of the personal representative) is designated
• Assets in which the decedent held a life estate

Probate is initiated in the court of the county where the decedent resided at time of death. Or, if the decedent did not reside in Minnesota at death, probate is initiated in the court of any county where property of the decedent was located at time of death.

A decedent does not need a will for his or her estate to go through probate. A will is a legal document that directs part or all of an estate’s assets. A person who dies with a valid will is said to die “testate.” A person who dies without a valid will dies “intestate.” Both formal and informal probate can administer testate or intestate estates. Normally, the decedent’s assets are applied to MA estate recovery before the rest of the assets are distributed according to the terms of the will.

The two main types of probate are formal probate and informal probate. In both processes, a court appoints a personal representative who is responsible for settling the decedent’s estate, but formal and informal probate differ in important respects. You can recover on an MA claim in either formal or informal probate.

Formal probate is a traditional court proceeding to settle an estate. It tends to be more costly and time consuming than informal probate. Formal probate is often chosen to address issues that would best be addressed with a judge’s oversight. Reasons to initiate formal probate may include the following:
• Real property is included in the estate.
• Interested parties disagree.
• The will includes ambiguous or impossible provisions.
• The interests of vulnerable parties (for example, minors or creditors) need protection.
• Interested parties have questions about the validity of the will.
• Complex administration procedures require supervision.
• Proceeds of the estate require different distribution than the terms of the will provide.

Informal probate is a process in which a personal representative act independently to distribute an estate’s assets, with minor oversight by a court registrar instead of a judge. In general, when no complicating factors exist, informal probate is easier and less expensive than formal probate. Most probate proceedings in Minnesota are informal.

If you initiate probate as an interested party in the estate, you must initiate formal probate, not informal probate.

The process of planning ahead for the end of life is something that many want to avoid. Although planning for such a time may not be comfortable, it is an important step to help those who will care for you and your affairs. In fact, some people find it reassuring to know that they have prepared a will to direct how their property should be allocated, or a health care directive to tell their family and caregivers about the medical treatment they want.

A will is a legal document that allows you to transfer your property at your death.
A will is a simple way to ensure that your money, property, and personal belongings will be distributed as you wish after your death. A will also allow you to have full use of your property while you are alive.

The law does not require that you have a will. However, a will is a useful tool that provides you with the ability to control how your estate will be divided.

If you die without a will, Minnesota’s inheritance laws will control how your estate will be divided. Your property will go to your spouse or closest relatives. If you have a spouse and children, the property will go to them by a set formula. If not, the property will descend in the following order: grandchildren, parents, brothers and sisters, or more distant relatives if there are no closer ones.

You may not need a will if you have made provisions so that your assets will pass without one, for example, by establishing trusts, life insurance policies with named beneficiaries, or joint property interests such as real estate or bank accounts.

A will is necessary if you want to leave property to a friend or a charity, to give certain items to certain people, or to leave someone out who would otherwise inherit from you. You may also wish to appoint a specific person to handle your estate. Thus, often it is best to write a will so your intentions can be met.

What Rules Apply to Wills?

In Minnesota, the following rules apply to wills:
• You must be at least 18 years old and of sound mind to make a will;
• The will must be in writing;
• The will must be signed by you, by another person at your direction and in your presence, or by your conservator pursuant to a court order;
• The will must be witnessed by at least two people, both of whom must also sign the will; and
• You must intend for the document to operate as a will.

Generally, the following basic elements are included in a will:
• Your name and place of residence;
• A description of any assets you wish to give to a specific person;
• Names of spouse, children, and other beneficiaries, such as charities or friends;
• Alternative beneficiaries, in the event a beneficiary dies before you do;
• Establishment of trusts, if desired;
• Cancellation of debts owed to you, if desired;
• Name of a trustee for any trusts created;
• Name of a personal representative to manage the estate;
• Name of a guardian for minor children;
• Name of an alternative guardian, in the event your first choice is unable or unwilling to act;
• Your signature; and
• Witnesses’ signatures.

Your will should clearly state who will get your property upon your death. You should also indicate, in an itemized and organized manner, how much each person will receive. You should be sure to name a guardian for your minor children and name a personal representative for your will.

Conservatorship and guardianship typically result from court proceedings in which the court appoints someone (a “conservator” or “guardian”) to manage another person’s financial affairs or personal care decisions. Generally, those proceedings are permitted only when a person becomes so incapacitated or impaired that he or she is unable to make financial or personal decisions, and has no other viable option for delegating these duties to another (e.g., through a durable power of attorney, living trust, or some other means). Using these standards, conservatorships or guardianships might be established for people who are in a coma, suffering from advanced stages of Alzheimer’s disease, or have other serious injuries or illnesses.
Under Minnesota law, conservatorships and guardianships are used to appoint a person when an individual is unable to make personal decisions or is unable to meet his or her financial needs, even with appropriate technological assistance. The court orders the appointment of a person (a “conservator” or “guardian”) to act as a decision maker for another person (the “protected person” or “ward”). A court must base this decision on clear and convincing evidence that the protected person or ward has been found to be unable to make necessary decisions on his or her own behalf. Once a court makes a finding of incapacity or impairment, the person no longer has the right to manage his or her affairs until proven capable.

A conservator is appointed to make financial decisions for a protected person. The conservator typically has the power to collect all the conservated assets, pay bills, make investments and perform other financial functions, as well as engage in estate planning, including the right to amend or revoke the protected person’s will. However, the conservator must seek court approval for transactions such as the purchase or sale of real property, gifting of assets, or engaging in estate planning for the protected person.

A guardian is appointed to perform duties related to personal care, custody, and control. The guardian has the authority to make decisions such as where the ward will live and what medical treatment they will receive.

Within 60 days after being appointed, a conservator must inventory the protected person’s estate, including any real estate, furniture, clothing, mortgages, bonds, notes or debts, and any other personal property. Thereafter, the conservator must file an annual accounting with the court showing, in detail, all property received and disbursed, and listing all property on hand. The conservator must pay for the support, maintenance, and education of a protected person, using government benefits when available; pay the protected person’s debts; and manage the protected person’s estate. Often the conservator must also post a bond—a kind of insurance policy that pays if the conservator steals or misuses property. The conservator may also have to receive court approval for certain transactions, such as selling real estate or making slightly risky investments. A conservator’s duties terminate at death or upon order of the court.

A guardian has the duty to assure that provisions have been made for the ward’s care and comfort, including food, health care, and social requirements. Whenever possible, the guardian should meet these needs through governmental benefits or services to which the ward is entitled, rather than from the ward’s estate.
A guardian has the power to give consent to enable the ward to receive necessary medical or professional care, but the guardian shall not consent to care which would violate the moral or religious beliefs of the ward.
A guardian shall also take reasonable care of the ward’s clothing, furniture, and other personal effects. The guardian must file a notice of intent to dispose prior to the disposition or sale of the ward’s personal effects.
The guardian must file with the court a report of the ward’s personal well-being, at least annually or whenever ordered by the court. The report must contain the current mental, physical, and social condition of the ward; the living arrangements for all addresses of the ward during the period of the report; the medical, educational, vocational, and other services provided to the ward; and a recommendation as to the need for continued guardianship. A guardianship terminates upon death of the ward or order of the court.

A power of attorney is a document authorizing someone to act on your behalf. You determine how much power the person will have over your affairs. Your power of attorney may be a general or limited power of attorney. A general power of attorney authorizes your agent to conduct your entire business and affairs. A limited or special power of attorney authorizes your agent to conduct specified business, perform specified acts, or make certain decisions on your behalf.

In any power of attorney, you are considered to be the “principal” and the person to whom you assign the power is your “agent” or “attorney-in-fact.” Your attorney-in-fact does not have to be a lawyer, but it should be someone you trust a great deal.

How Much Power Does a Power of Attorney Have?

You may give your attorney-in-fact as much or as little power as you wish. You could choose to give your attorney-in-fact power to do some or all of the following:
• Use your assets to pay your everyday expenses and those of your family;
• Buy, sell, maintain, mortgage, or pay taxes on real estate and other property;
• Manage benefits from Social Security, Medicare, or other government programs, or civil or military service;
• Invest your money in stocks, bonds, and mutual funds;
• Handle transactions with your bank and other financial institutions;
• Buy and sell insurance policies and annuities for you;
• File and pay your taxes;
• Operate your small business;
• Claim property you inherit or are otherwise entitled to;
• Hire someone to represent you in court; and
• Manage your retirement accounts.

A health care directive is a written document that informs others of your health care wishes. It allows you to name a person (or “agent”) to make decisions for you if you are unable to do so. Under Minnesota law, anyone 18 or older can make a health care directive. What Should I Include in My Health Care Directive?

Your health care directive may contain many health-related items, including:
• The name of the person you designate as your agent to make health care decisions for you. You can name alternate agents in case the first agent is unavailable or even assign joint agents;
• Directions to joint agents, if assigned, regarding the process or standards by which they are to reach a health care decision;
• Your goals, values, and preferences about health care;
• The types of medical treatment you want or do not want, including instructions about artificial nutrition and hydration;
• How you want your agent(s) to make decisions;
• Where you want to receive care;
• Your preferences regarding mental health treatments, including those that are intrusive through use of electroshock therapy or neuroleptic medications;
• Instructions if you are pregnant;
• Your desire to donate organs, tissues, or other body parts; and
• Your funeral arrangements.

You may be as specific or general as you wish in your health care directive.

What Are the Limits on My Health Care Directive?

Your health care directive is limited as follows:
• Your agent must be at least 18 years of age;
• Your agent cannot be your health care provider, unless the health care provider is a family member or you give reasons why your agent is your health care provider; and
• You cannot request assisted suicide.

Your health care provider must follow your health care directive or your agent’s instructions. If your provider cannot or will not follow your agent’s directions about life-sustaining treatment, your provider must permit you to be transferred to a health care provider who has the capability or is willing to follow your directives.