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GlossaryProbateInherited property

Testate

2 min read
Short answer
Testate means dying with a valid will. The will directs who inherits, subject to protections the law imposes regardless — in Minnesota, the surviving spouse's homestead rights and elective share cannot be defeated by a will, and a house still has to be probated for title to move.

Testate means dying with a valid will. The opposite of intestate.

The will directs who inherits — within limits the law imposes regardless of what it says.

A will does not avoid probate#

The most persistent misunderstanding, and it costs families years.

A will answers who inherits. Probate is the process that transfers title.

Real property held in the decedent's name alone must be probated whether or not there is a will. The will tells the court where the house should go; the court's process is what moves it.

Families who assume a will handled everything are the same families who discover three years later that informal probate is no longer available.

What a will cannot do in Minnesota#

Two protections override it.

Homestead descent. Under Minn. Stat. 524.2-402 the homestead passes to the surviving spouse regardless of any testamentary disposition — in fee where there are no descendants, as a life estate with the remainder to descendants where there are.

A will leaving the house to somebody else does not defeat that.

The elective share. A surviving spouse can claim a percentage of the augmented estate instead of what the will provides, scaled by the length of the marriage, and homestead rights are in addition rather than charged against it.

Between them, a Minnesota will cannot disinherit a spouse of the family home.

What actually avoids probate#

Not a will. Three things, all arranged during life:

Joint tenancy with right of survivorship, from the deed's vesting language.

A trust, with the property transferred into it.

A transfer on death deed under Minn. Stat. 507.071, recorded before death.

A will and a transfer on death deed can conflict, and the deed wins — a TODD executed, acknowledged and recorded properly is not revoked by a will.

Keep the original findable#

Practical advice that prevents a formal proceeding.

Informal probate requires the original will. Where only a copy can be located, admitting it requires satisfying the court about what happened to the original — which converts an administrative filing into a court matter.

Storing the original somewhere retrievable, and telling the named personal representative where it is, costs nothing.

Review it after any change#

A will written before a marriage, a divorce, a birth, a death, or the purchase of a property may produce an outcome nobody now intends.

The Minnesota protections fill some gaps and they are blunt instruments. A will that reflects current circumstances is considerably better than statutory defaults correcting an outdated one.

Common questions

Does having a will avoid probate?
No. A will directs who inherits; probate is the process that transfers title to them. Real property in the decedent's name alone must be probated whether or not there is a will.
Can a will disinherit a spouse?
Not effectively in Minnesota. The surviving spouse's homestead rights under 524.2-402 apply regardless of any testamentary disposition, and the elective share allows a percentage of the augmented estate to be claimed instead of what the will provides.
What if the original will cannot be found?
Admitting a copy requires satisfying the court about what happened to the original, which is a formal proceeding rather than an administrative filing. Keeping the original findable, and telling someone where it is, prevents that entirely.
Keep reading
Intestate
Dying without a valid will, so that Minnesota's statutory rules rather than the decedent's wishes determine who inherits.
Spousal elective share
A Minnesota surviving spouse's right to claim a percentage of the augmented estate instead of what the will provides, scaled by length of marriage.
Homestead descent
Minnesota's rule passing a homestead to the surviving spouse — outright with no descendants, as a life estate where there are — whatever the will says.