If my widowed sister died without a Will, do I need a probate attorney to open a full estate?
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If my widowed sister died without a Will, do I need a probate attorney to open a full estate?
Or can I file a small estate affidavit on my own and get a real estate attorney to handle the house portion? Are there probate attorneys who work on a contingency basis? I found a probate attorney but she wants a $3500 retainer. My sister had no children but did have a car that is paid for and a house that she just refinanced. She is survived by me and a brother who is incarcerated; she also had 6 deceased brothers (who have adult children) and 2 deceased sisters (who have adult children).
Asked on August 18, 2013 under Estate Planning, Maryland
Answers:
Gene Adkins / Hitchcock Law Firm, PLLC
Answered 11 years ago | Contributor
You would be wise to retain a propbate attorney. While you could attempt to do it on your own, there are many pitfalls for those unfamilar with probate law. The fact situation you describe is also fairly complex. Because there is not a Will, the first order of business is to determine who will act as personal representative. You, your brother, and the children of your deceased siblings all have equal priority to serve as personal representative under Minnesota law.
Because your sister owned real estate at the time of her death, Minnesota requires some type of probate proceeding to be commenced (regardless of the value of the real estate) in order to sell it or have the title transferred to the heirs. An Affadvit of Collection cannot be used in a such a situation. Assuming no one else is on title to the house, then, without a personal representative being appointed by the court, no one has the authority to sell it and convey good, marketable title.
A probate attorney will be able to advise you whether you should proceed with a formal or informal probate, who must be served with notice of the proceeding, who is entitled to receive a copy of the Inventory, Final Account, and Proposal for Distribution. There are notices that must be sent to creditors and the Department of Human Services.
The attorneys' fees and personal representative's compensation are expenses of administration. They are paid out of the estate assets.
A probate attorney will be able to explain all of this in more detail to you.
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