Is Probate Necessary?

If someone dies leaving a will, 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.

When is probate unnecessary?

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

  • the person owns no real property in his/her name alone.
  • the person owns personal property in his/her name alone that is valued less than $50,000.

Not Subject to Probate:

Some kinds of property and assets do not need to be probated. These include property owned as joint tenants, jointly held bank accounts, payable-on-death accounts, life insurance proceeds to a specific beneficiary, and pension benefits with a designated beneficiary in the event you die.

Joint Tenancy Property.

As discussed previously, holding title to property in joint tenancy means that you and another person each have an undivided interest in the property and a right to own it after the other person dies. In the case of real property, this fact would be stated in your title documents. When a co-owner dies, the surviving property owner must file a certified copy of the death certificate of the deceased property owner and an affidavit of survivorship with the county recorder or registrar.

Jointly Held Bank Accounts.

As in joint tenancy of real property, you and one or more people may be listed as account holders of the same account. If one of the joint account holders dies, the other joint account holders own the money in the shared bank account.

Payable-On-Death Accounts (PODs).

A payable-on-death account is an individually owned account in which you choose someone else to receive the funds in your account upon your death. The beneficiary, or person getting the money upon your death, has no right to these funds until your death. You may set up a POD by contacting your financial institution. You may change the beneficiary by completing a new signature card at any time.

Life Insurance Proceeds.

Your life insurance policy can indicate a specific person, called a “beneficiary,” who will receive your insurance proceeds when you die. Call your insurance agent or company if you are interested in naming a specific person or persons to receive your life insurance money.

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 $50,000 or more, a probate proceeding must be filed.
  • When a person passes away and has a combination of real property and any amount of personal property in his/her name alone, a probate must be filed.

Subject to Probate:

Real Estate

Unless real estate is owned in joint tenancy with right of survivorship or placed into a trust, it must be probated. Joint tenancy means that the property is owned by two or more people who have an undivided interest in the property and that interest continues in the survivor after other owners die. If you are a resident of Minnesota and own real estate in another state at the time of your death, the probate laws of that state will apply to that real estate. In other words, real estate is probated in the state where it is located.

Personal Property

If your estate is worth less than $50,000, your heirs may be able to collect the property without going to court by using an Affidavit for Collection of Personal Property. Your personal representative should notify all of the heirs of the property that they can collect. Heirs may not take your personal property until 30 days after your death. If your personal property exceeds $50,000 or you own real estate in your name alone, your estate must be probated.