Even when people don’t write a will that dictates how they want their assets distributed when they die, most do leave some property that requires legal transfer to their heirs. Probate is necessary to effect the transfers. This is easiest when there is a will, but the process is similar in Minnesota when a decedent dies intestate, or without a will. The major difference is that without a will, the state distributes the decedent's property according to law and under the terms of its Uniform Probate Code.
Minnesota’s process of opening probate without a will is similar to opening probate with one. The person who wishes to act as executor of the estate must submit a copy of the death certificate to the probate court in the county where the decedent lived when he died. That person must also submit a petition or application for opening probate and asking for appointment as executor. If the court approves the appointment, and if no heirs object, the executor can proceed with probating the estate. Family members are usually favored as executors when a decedent doesn't have a will. The court determines whether probate should be formal or informal, depending on the complexity of the estate.
The executor pays the decedent's debts from the assets of his estate, just as the executor would if the decedent had left a will. The executor must notify known creditors of the death by mail, and must also publish a notice in the local newspaper alerting unknown creditors that the estate is in probate. Creditors have four months under Minnesota law to make claims for the money the decedent owed them. After the decedent’s debts are paid, including any taxes he owed, the executor is free to divide the remainder of the estate among the heirs.
Because the decedent did not leave a will specifying to whom he wanted to leave his property, the executor has no choice but to distribute the assets according to Minnesota state law. The decedent’s spouse receives the entirety of his estate left after debts and taxes, unless the decedent has children who are not also the children of his spouse. In this case, the spouse receives the first $150,000 of his estate, and the balance is divided, half to her and half to his descendants: children, including unborn children; grandchildren; and great-grandchildren. If the surviving spouse has children who are not also the decedent's children, and if he never adopted them, they are not in line to inherit under Minnesota's intestate succession laws. If the decedent had no spouse, his children receive the entirety of the estate. If he has no spouse or children, his estate divides first between his parents, and if they are not living, then their descendants.
Read More: The Effect of Abandonment of Heirs on Intestate Succession
Minnesota courts make every effort to find some known heir, even if the decedent had no spouse or children and is not survived by parents, nieces, nephews, brothers or sisters. If absolutely no one is found who is related to the decedent by state law, and if he did not leave a will directing anyone else to inherit, his remaining estate after debts and taxes reverts to the state.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.