General DefinitionAny part of the decedent's estate not allowed to the decedent's spouse or descendants and not disposed of by will. Sec. 524.2-101.
Order of DistributionThe intestate share of a decedent's surviving spouse is:
- The entire intestate estate if: no descendant of the decedent survives the decedent; orall of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;
- The first $150,000, plus one-half of any balance of the intestate estate, if all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent, or if one or more of the decedent's surviving descendants are not descendants of the surviving spouse. Sec. 524.2-102.
Any part of the intestate estate not passing to the decedent's surviving spouse or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent:
- To the decedent's descendants by representation;
- If there is no surviving descendant, to the decedent's parents equally if both survive, or to the surviving parent;
- If there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them by representation;
- If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other half passes to the decedent's maternal relatives in the same manner; but if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same manner as the half;
- If there is no surviving descendant, parent, descendant of a parent, grandparent, or descendant of a grandparent, to the next of kin in equal degree, except that when there are two or more collateral kindred in equal degree claiming through different ancestors, those who claim through the nearest ancestor shall take to the exclusion of those claiming through an ancestor more remote. Sec. 524.2-103.
If there is no taker under Minnesota law, the intestate estate passes to the state. Sec. 524.2-105.
Common Law or Community PropertyMinnesota is a common law, elective share state.
CapacityAny person 18 or more years of age who is of sound mind may make a will. Sec. 524.2-501.
DraftingA will must be:
- in writing;
- signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction or signed by the testator's conservator pursuant to a court order; and
- signed by at least two individuals, each of whom signed within a reasonable time after witnessing either the signing of the will or the testator's acknowledgment of that signature or acknowledgment of the will. Sec. 524.2-502.
An individual generally competent to be a witness may act as a witness to a will. The signing of a will by an interested witness does not invalidate the will or any provision of it. Sec. 524.2-505.
A will may be contemporaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which execution occurs and evidenced by the officer's certificate, under official seal. Sec. 524.2-504.
BeneficiariesA beneficiary includes, in the case of a decedent's estate, an heir, legatee and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary.
A devisee who fails to survive the testator by 120 hours, a beneficiary named in a transfer on death deed who fails to survive by 120 hours the grantor owner upon whose death the conveyance to the beneficiary becomes effective, or an appointee of a power of appointment taking effect at the death of the holder of the power who fails to survive the holder of the power by 120 hours is deemed to have predeceased the grantor, grantor owner testator, or holder of the power for purposes of determining title to property passing by the trust instrument, by the testator's will, by the transfer on death deed, or by the exercise of the power of appointment. Sec. 524.2-702.
ModificationsA will or any part thereof is revoked:
- by executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or
- by performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator's conscious presence and by the testator's direction. For purposes of this clause, "revocatory act on the will" includes burning, tearing, canceling, obliterating, or destroying the will or any part of it. A burning, tearing, or canceling may be a "revocatory act on the will," whether or not the burn, tear, or cancellation touched any of the words on the will. Sec. 524.2-507(a).
If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will. The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator's death. The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator's death to the extent they are not inconsistent. Sec. 524.2-507(b)-(d).
Naming of Personal Representative
To acquire the powers and undertake the duties and liabilities of a personal representative of a decedent, a person must be appointed by order of the court or registrar, qualify and be issued letters. Administration of an estate is commenced by the issuance of letters. Sec. 524.3-103.
Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:
- the person with priority as determined by a probated will including a person nominated by a power conferred in a will;
- the surviving spouse of the decedent who is a devisee of the decedent;
- other devisees of the decedent;
- the surviving spouse of the decedent;
- other heirs of the decedent;
- 45 days after the death of the decedent, any creditor;
- 90 days after the death of the decedent and any conservator of the decedent who has not been discharged. Sec. 524.3-203.
Submission of WillTo be effective to prove the transfer of any property, to nominate an executor or to exercise a power of appointment, a will must be declared to be valid by an order of informal probate by the registrar, or an adjudication of probate by the court in a formal proceeding or proceedings to determine descent, except that a duly executed and unrevoked will which has not been probated may be admitted as evidence of a devise if :
- No court proceeding concerning the succession or administration of the estate has occurred, and
- Either the devisee or the devisee's successors and assigns possessed the property devised in accordance with the provisions of the will, or the property devised was not possessed or claimed by anyone by virtue of the decedent's title during the time period for testacy proceedings. Sec. 524.3-102.
NotificationsUpon commencement of a formal testacy proceeding, the court will fix a time and place of hearing. Notice will be given in the manner prescribed by Sec. 524.1-401. Notice will be given to the following persons: the surviving spouse, children, and other heirs of the decedent, the devisees and personal representatives named in any will that is being or has been probated, or offered for informal or formal probate in the county, or that is known by the petitioner to have been probated, or offered for informal or formal probate elsewhere, and any personal representative of the decedent whose appointment has not been terminated. Notice of the hearing, in the form prescribed by court rule, will also be given under the direction of the court administrator by publication once a week for two consecutive weeks in a legal newspaper in the county where the hearing is to be held, the last publication of which is to be at least ten days before the time set for hearing. Sec. 524.3-403.
InventoryWithin six months after appointment, or nine months after the death of the decedent, whichever is later, a personal representative shall prepare and file or mail an inventory of property owned by the decedent at the time of death, listing it with reasonable detail, and indicating as to each listed item, its fair market value as of the date of the decedent's death, and the type and amount of any encumbrance that may exist with reference to any item.
The personal representative must mail or deliver a copy of the inventory to the surviving spouse, if there be one, to all residuary distributees, and to interested persons or creditors who request a copy. Sec. 524.3-706.
Elective Share, Homestead, Family Allowance and Exempt Property
The surviving spouse of a decedent who dies domiciled in Minnesota has a right of election, to take an elective-share amount equal to the value of the elective-share percentage of the augmented estate, determined by the length of time the spouse and the decedent were married to each other. Sec. 524.2-202.
The decedent's surviving spouse and minor children shall be allowed a homestead and family allowance, as well as exempt property as detailed in Secs. 524.2-402, 524.2-403 and 524.2-404.
Debts and DistributionsUpon the expiration of the earliest of the time limitations for the presentation of claims, the personal representative will proceed to pay the claims allowed against the estate in the order of priority prescribed, after making provision for family maintenance and statutory allowances, for claims already presented which have not yet been allowed or whose allowance has been appealed and for unbarred claims which may yet be presented, including costs and expenses of administration. Sec. 524.3-807.
If the applicable assets of the estate are insufficient to pay all claims in full, the personal representative must make payment in the following order:
- Costs and expenses of administration;
- Reasonable funeral expenses;
- Debts and taxes with preference under federal law;
- Reasonable and necessary medical, hospital, or nursing home expenses of the last illness of the decedent;
- Reasonable and necessary medical, hospital and nursing home expenses for the care of the decedent during the year immediately preceding death;
- Debts with preference under other laws of this state, and state taxes;
- All other claims. Sec. 524.3-805(a).
In 2017, estates less than $2.1 million will pay no estate tax. This amount will be increased to $2.4 million in 2018, $2.7 million in 2019 and $3 million in 2020 and beyond. Sec. 289A.10 Subd. 1(2). Above that amount, the estate tax is a graduated tax with a top rate of 16% on the amount of the taxable estate over $10.1 million. Sec. 291.03 Subd. 1(b).
Income Tax Charitable Deductions and/or Credits
Minnesota allows taxpayers to deduct up to 50% of the amount contributed to qualified organizations under Sec. 501(c)(3) if the taxpayer does not itemize taxes on his or her federal income tax return. The deduction does not apply to the first $500 contributed by the taxpayer. Sec. 290.032(7).
Gift Annuity Requirements
Minnesota, a "conditional exemption" state, regulates the issuance of charitable gift annuities under MINNESOTA SECURITIES STATUTE 80A.45 Section 201(7).
Exemption QualificationsCharitable gift annuities must meet the requirements of Sec. 501(m)(5).
Disclosure LanguageMinnesota does not require any specific disclosure language in an issuing charity's gift annuity contracts.
Reserve RequirementsMinnesota does not require an issuing charity to hold any amount in reserve.
Annual Filing RequirementsNo annual reporting or notification is required.
State Contact InformationMinnesota Department of Commerce
85 7th Place East, Suite 500
St. Paul, MN 55101