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What property is subject to probate?

When it comes to the legal system, it is common for St. Paul residents to have a general familiarity with certain legal procedures, without knowing the details unless and until they become personally involved in a legal proceeding. This is often the case with estate administration, as individuals may have a will or trust and be familiar with some basic issues underlying those documents, without having a detailed understanding of how their estate will be settled after they die.

For example, there are often many misconceptions about probate, such as which property is subject to probate after a person dies and how the process works to distribute a person's assets. For example, many may believe that they will avoid probate by having a will, which is not always true.

As a general matter, probate laws in Minnesota typically apply to those who were Minnesota residents at the time of their death, or to individuals who own real property in the State. Real estate is one type of property that must be probated, as opposed to personal property, which may be distributed without probate if a person's estate is worth less than $50,000 and the heirs file an affidavit for collection of personal property.

The exception to probate requirements for real estate is when the property is owned in joint tenancy with the right of survivorship. This is a particular type of ownership between two or more people, that gives the survivor the right to the property after the other owners die. Another exception would be property that is placed into a trust.

Similarly, if a person jointly owns bank accounts with another person, the survivor would be the owner of the money in the account after a joint account holder dies. Accordingly, this is similar to property owned in joint tenancy with right of survivorship.

There may also be other assets that pass outside of property, including payable-on-death accounts and pension benefits with a designated beneficiary. For example, a life insurance policy passes outside of probate, with the proceeds being distributed to the person named as a beneficiary under the policy.

Source: The Office of Minnesota Attorney General Lori Swanson, "Probate and planning," accessed on Jan. 16, 2015

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