Determining the Right to Be Personal Representative

Minnesota Probate Practice

Priority is simply a recognition of status. Holding the highest priority does not automatically grant the most prior person the right to be the personal representative of the estate. That decision is ultimately left to the court’s determination.

In both formal probate and informal probate proceedings, persons who are not disqualified have priority for appointment in the following order:

1. the person with priority as determined by a probated will, including a person nominated by a power conferred in a will;

2. the surviving spouse of the decedent who is a devisee of the decedent;

3. other devisees of the decedent;

4. the surviving spouse of the decedent;

5. other heirs of the decedent;

6. at least 45 days after the death of the decedent, any creditor;

7. at least 90 days after the death of the decedent, any conservator of the decedent who has not been discharged, under certain circumstances.

Objecting to the Appointment of a Personal Representative

An objection to an appointment can be made only in formal proceedings. To proceed informally, all objections must be worked out by the parties before continuing. If all of the parties cannot work out the problems, then the probate has no choice but to go formally (and usually at greater expense to the estate).

If there is an objection, the priorities stated above apply, except that if the estate appears to be more than adequate to meet exemptions and costs of administration but inadequate to discharge anticipated unsecured claims, the court, on petition of creditors, may appoint any qualified person; or, in case of objection to appointment of a person other than one whose priority is determined by will by an heir or devisee appearing to have a substantial interest in the estate, the court may appoint a person who is acceptable to heirs and devisees whose interests in the estate appear to be worth in total more than half of the probable distributable value, or, in default of this accord any suitable person.

Transferring, Nominating, & Renouncing

Certain person who would otherwise be entitled to priority may nominate a qualified person to act as personal representative. Only the spouse, devisees, and other heirs may grant priority to third persons.
Any person with valid priority may renounce the right to nominate or to an appointment by appropriate writing filed with the court. When two or more persons share a priority, those who do not renounce must concur in nominating another as personal representative. The concurrence of nomination will effectively act as a renunciation.

Conservators & Guardians

Conservators of the estates of protected persons, or if there is no conservator, any guardian except a guardian ad litem of a minor or incapacitated person, may exercise the same right to nominate, to object to another's appointment, or to participate in determining the preference of a majority in interest of the heirs and devisees that the protected person or ward would have if qualified for appointment.

When Formal Proceeding Is Required

Appointment of one who does not have priority, including priority resulting from disclaimer, renunciation or nomination determined pursuant to this section, may be made only in formal proceedings. Before appointing one without priority, the court must determine that those having priority, although given notice of the proceedings, have failed to request appointment or to nominate another for appointment, and that administration is necessary.

Ineligible for Appointment as Personal Representative

The personal representative may not be under age eighteen. The court will also not appoint any person as the personal representative whom it finds to be unqualified or otherwise unsuitable to act as the personal representative of the estate.

If you have any questions or need assistance from a Minnesota probate attorney, then please contact me.