The legal terminology used during the probate process can be very confusing. This glossary will help you understand the terms your lawyer will use while speaking with you about probate.
Decedent: The deceased person whose estate will be administered through the probate process.
Probate: The state court process by which the Court determines what the decedent owned, owed and to whom he or she wanted it transferred to. The process varies by state. If the decedent owned property in multiple states, then most likely the process will have to be repeated in each state in which the decedent had assets.
Personal Representative: This is the person or corporate entity named in the Decedents Will to administer his or her estate. Some states refer to this person as an Administrator or Executor, but it basically means the same thing. If there is no Will, or if the designated Personal Representative has died, then the Court will appoint someone to act.
Letters: This is a document issued by the Probate Court to the Personal Representative giving him or her the authority to act on behalf of the decedent. If the Decedent had a Will, then the document is called Letters Testamentary. If there was no Will, then the document is called Letters of General Administration. Once the Letters are issued, the administration commenced. However, the Court might impose conditions such as requiring the Personal Representative to be bonded before issuing the Letters. In that case, a bond must be obtained to make sure that the Personal Representative fulfills his or her obligations and does not run off with the assets.
Beneficiary: This term refers to someone who will likely take something from the Decedents estate, after any creditors have been paid.
Claims: Creditors who are owed money by the Decedent, in some situations, will be asked to file claims as to what they are owed. In most cases, they must be paid before the estate can be closed.
Heirs: These are people who are entitled to the assets if there was no Will. The Will provisions will over ride the heirs rights. If there is no Will, then Minnesota has established a scheme for distribution of the decedents assets. Those entitled to receive the assets are called heirs.
Devisees: This term refers to persons entitled to receive either real property, referred to as a devise or a bequest which refers to personal property.
Formal vs. Informal Process: A formal probate process involves a Judge, whom, after a notice of the proceeding is given to all interested parties, rules on such items as whether the Will is valid, whom are the heirs, and whether a bond is required. An Informal process is usually before a Registrar, who is a person with quasi judicial powers. It is intended to be a less complicated process with fewer forms to file, in order to complete. Which process is elected will depend on the nature of the assets, what claims exist and how much they are in relation to the assets.
Exempt estate: In some situations the estate is so small or exists of only a homestead, a vehicle and limited assets, that by statute, the creditors are not paid and all assets are transferred to the spouse and heirs.
Collection by Affidavit: If the entire probate Estate is less than $50,000.00 and more than 30 days have elapsed since death, the successor in interest to the property can collect the assets under an Affidavit and avoid any probate process.
Summary Administration: If the only assets consist of a homestead, a vehicle and assets worth less than $10,000.00, then the probate can be opened and closed quickly without the need for the appointment of a Personal Representative.
Decree of Descent: If the decedent has been dead more than 3 years, then assets can be decreed by the Court with a single hearing.