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  • Writer's pictureScott Berry

How Does The Probate Process Begin?

Usually, the probate proceeding is initiated in the county of the decedent’s legal residence at the time of their death.

If there is a Will...

The original copy of decedent’s will is submitted to court along with a petition or application to probate the will and appoint a personal representative. The will typically nominates a personal representative.

If there is not a Will...

If there is no will, a person with priority of appointment must submit a petition or application requesting to be appointed as personal representative of the decedent. Most often, this is the personal representative is the surviving spouse or an adult child. If there is a dispute over who should serve as personal representative, the court may appoint a neutral personal representative who can be counted on to be fair. This person is paid an hourly fee from estate funds.

A personal representative’s authority only extends to the “probate estate” – defined as property subject to the jurisdiction of the probate court. Assets disposed of outside the probate process are part of the “non-probate estate,” and the personal representative has no control of these. An example would be a life insurance policy that has a beneficiary designation. If a decedent has probate property in another state, then that property must be subjected to ancillary probate in the other state.

The personal representative only has control over "probate" property

The personal representative will file a Petition or Application for Probate and Appointment of Personal Representative. The petition or application will be filed at the county court administrator’s office along with a certified copy of the death certificate and the original will, if there is one.

We will then publish and cause the notice of probate to be served in accordance with Minnesota law. Once submitted to probate, a will is a public record, and so are the subsequent filings with the court. These papers are open to inspection by anyone.

Depending upon whether we have initiated a formal or informal probate proceeding, a hearing date may be set for the personal representative to appear be formally appointed by a judge At the hearing the court will review the will to determine its genuineness and validity as well as appoint a personal representative. The court issues an order appointing the personal representative.

Once appointed, the personal representative has full authority to administer the decedent’s probate property and accounts. The court will issue letters of administration to the personal representative to reflect the personal representative’s authority.

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