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Probate / Estates

What is probate?
Probate is the legal process of settling an estate after a person has died.  A petition must be filed with the court and a personal representative must be appointed.  The personal representative is responsible for the following:

  • Collection of inventories and appraisal of assets of the person who has died.
  • Protection of the estate's assets.
  • Payment of decedent's debts.
  • Distribution of the remaining assets to the proper parties as provided by law.

When is probate unnecessary?
There is generally no need for probate if a person dies and:

  • the person owns personal property in his/her name alone that is valued less than $20,000.
  • the person owns no real property in his/her name alone.

When is probate necessary?

  • If a person dies and owns real estate (regardless of value) either in his/her name alone or as a "tenant in common" with someone else, a probate proceeding is required.
  • When a person dies and has no real property, but has personal property in his/her name alone totaling $20,000 or more, a probate proceeding must be filed.
  • When a person dies and has a combination of real property and any amount of personal property in his/her name alone, a probate must be filed.

If a person dies leaving a Will, is there a need for probate?
If someone dies leaving a Will (testate), it does not automatically mean that there is no need for probate.  The determining factor is how the assets were held as of the date of death.  See the answer above describing situations where probate is necessary.

WHEN A PROBATE IS NEEDED, IT IS RECOMMENDED THAT THE PARTIES SEEK THE ADVICE OF AN ATTORNEY

 

Informal Probate
Formal Probate
Roles of the Personal Representative
Depositing a Will for Safekeeping
Wills - Frequently Asked Questions

Informal Probate
Informal Probate is processed through the Probate Registrar instead of a District Court Judge.  Minnesota Statute 524.3-305 gives the Probate Registrar the authority to reject any application for informal probate for any reason.  If a Will is involved that has a survivorship clause in it, you cannot apply for an informal probate until after the time stated in the survivorship clause has lapsed.  If the Probate Registrar rejects your informal probate petition, you may need to file a formal probate petition that will be heard by a judge.

Informal probate is an unsupervised probate process that is absent of complexity and problems that need court involvement, protection, supervision, or adjudication.  It may be used when there is a need to begin the probate process in a short amount of time (i.e. stock fluctuations involved).

An informal application will not be accepted if any of the following conditions apply:

  • Minor children are involved.

  • Real property is involved.

  • The estate is insolvent.

  • There are unknown heirs.

  • The original Will cannot be found.

  • There is disagreement among the heirs or devisees.

  • If there is any reason for a judge to sign an order or decree.

In informal proceedings, the Personal Representative is appointed by Probate Registrar to administer the estate.

After the informal probate has been fully administered, the personal representative should file an "Unsupervised Personal Representative's Statement to Close Estate" with the Probate Court.  No other forms need to be filed with the Probate Court during administration.

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Formal Probate
Formal Probate matters come before a District Court Judge either as supervised or unsupervised administrations.  Formal probate is a better way to proceed if there are problems with the estate and a judge is needed to make determinations.  A formal probate should be filed if:

  • There are problems to resolve among the parties.

  • If there are ambiguous or impossible provisions in a Will that need clarification.

  • If interests of vulnerable parties (i.e. minors or creditors) need protection.

  • The validity of the Will must be determined.

  • If the estate requires supervision of complex administration procedures.

  • If proceeds of estate must be distributed differently from the terms of the Will.

What is a creditor?
A creditor is a party asserting a claim against an estate.

What is a devisee?
A devisee is a person designated by will to receive real and/or personal property of an estate.

Who are considered heirs of an estate?
Blood relatives (including a surviving spouse) who are entitled to property of a deceased person who did not have a Will.

Who are considered "interested persons" of an estate?
Heirs, devisees, creditors, beneficiaries and any others having a property right in or a claim to a decedent's estate.

What Minnesota Statutes apply to a probate court?
Chapters 524 and 525, Uniform Probate Code and Probate Proceedings are the primary statutes that govern probate law.  The Minnesota Rules of Civil Procedure also apply.

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Roles of the Personal Representative:
A personal representative is the party in charge of handling the estate of the decedent.  Personal representatives are appointed by a District Court Judge in formal proceedings or a Probate Registrar in informal proceeding.  Responsibilities of the personal representative include:

  • Collection, inventory, and appraisal of assets.
  • Protection and preservation of assets.
  • Payment of taxes and debts of the decedent and their estate.
  • Distribution of remaining assets to the proper parties as specified by law.
  • Closing the estate.

The principle duties of the personal representative are:

  • Determine whether decedent left a will.
  • Prepare a list of names, ages, addresses of decedent's heirs and devisees.
  • Compile a list of probate and non-probate assets and their value.
  • Protect and preserve assets
  • Pay taxes and debts and distribute remaining assets.

The personal representative is personally responsible for probating the estate completely and correctly, according to statute, and to bring it to a prompt conclusion.  Most estates are expected to be completed within an 18 month period.  If additional time is needed, the personal representative must petition the court for an extension.

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Depositing a Will for Safekeeping
Kandiyohi County Probate Court has jurisdiction over the deposit of wills for safekeeping and provides the service of allowing the public to file their original wills with the court.  Wills remain with court administration even after death.  If a probate proceeding is initiated, the will is filed with the estate file.  Original wills are considered permanent court records and copies may be released by the court only upon proof of death.

Listed below is Will deposit and withdrawal information:

  • Only Kandiyohi County residents may deposit their wills with the Kandiyohi County Probate Court.
  • Wills may be deposited by a testator or someone under their direction.
  • The will must be submitted in a sealed envelope with name, address and date of birth on the outside of the envelope.
  • There is a deposit fee charged by the court.
  • After a will is filed for safekeeping, the testator will receive a Certificate of Deposit and an Affidavit of Withdrawal.  The Affidavit of Withdrawal may be used if a testator decides to withdraw the will at a later date.
  • There are two ways to withdraw a will:
    1.  By mail - Complete and send the signed, witnessed and notarized Affidavit of Withdrawal form.
    2.  In person - Present the Affidavit of Withdrawal form that has been signed, witnessed and notarized.  If this form is not available, we require a driver's license or state ID card for identification purposes.

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Wills - Frequently Asked Questions

How do I file an "Ante-mortem Will" (ante-mortem means before death) with the Probate Court?
A person may want to file a will for safekeeping with the Probate Court.  In Minnesota, a will must be signed before two witnesses.  The full name, date of birth and address of the testator (the person whose will it is) must be included on the document.  There is a filing fee for filing a will with Probate Court.

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How do I file a "Post-mortem Will" (post-mortem means after death) with the Probate Court?
A post-mortem will can be filed with the Probate Court.  No filing fee is required.

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How do I withdraw a Will that has been filed with the Probate Court?
A will may be withdrawn by the testator (the person whose will it is) upon presentation of identification and the Certificate of Deposit the testator received at the time of filing the will.  The Certificate of Deposit must be witnessed and signed by two court deputies before the will is released to the testator.  The Certificate of Deposit is then filed with the Probate Court and the will is released to the testator.

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How do I have an "agent" or an attorney withdraw my Will?
A testator's (person whose will it is) agent or attorney may withdraw a will by presenting a notarized authorization signed by the testator and two witnesses.  The authorization is filed with the Probate Court and the will is released to the agent or attorney for the testator.

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May I get a copy of my Will after it has been filed with the Probate Court?
No copies of an original will can be made during the testator's lifetime.  Once the testator is deceased and there is no probate filed, anyone may get a copy of a will.  A certified copy of the death certificate must be presented before a copy can be issued.  If a copy of a death certificate is already on file with the Probate Court, there is no Probate, copies can be made of the will for anyone requesting a copy.

If the person has died and there is a probate, copies of the will can be made without a death certificate.  If a customer wants to file a post-mortem will (for a person already deceased), we can file it.  There is no filing fee for filing a post-mortem will.

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