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Minnesota Department of Human Services MA Estate Recovery Manual
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II. How to initiate and administer probate to recover on an MA claim

A. Can a local agency initiate and administer probate?

Yes. Most of the time, local agencies do not initiate probate because another party with an interest in the estate has already done so. If that has not occurred, however, you can probate a decedent’s estate to recover on an MA claim 45 days after the decedent’s death. You can do this because your MA claim on the estate makes you an interested party, which gives you standing with the court to start the probate process.

You may have procedures to identify recently deceased MA members and pursue a claim on your own initiative. In addition, DHS sends a monthly death data match report to each agency’s MN–ITS mailbox that matches recent death certificates filed in Minnesota to MA members in the agency’s locality. Agencies that train staff to initiate and administer probate on dormant estates when appropriate may increase estate recovery substantially.

B. Deciding whether to probate

Deciding whether to probate an estate depends on a variety of factors. Ask yourself the following questions.

1. Heirs and devisees

  • • Is there a family member who will probate the estate?
  • • Have we (the local agency) exhausted family willingness to administer the estate?
  • • Are there devisee or heir issues?
  • • Is there uncertainty about who the heirs or devisees are?
  • • Are the whereabouts of heirs or devisees unknown?
  • 2. Timing issues

  • • Have at least 45 days passed since the decedent’s death? You must wait 45 days after death before petitioning the court for its appointment as personal representative.
  • • Has it been less than three years since the decedent passed away? If it has been more than three years, then you may pursue a determination of descent.
  • 3. Value of the estate

  • • What is the value of the estate?
  • • What is the value of the MA claim?
  • • Is the estate insolvent?
  • • Does the estate include real property?
  • • Does the real property have a mortgage and for how much?
  • • Is the property vacant or in distress?
  • • Will the property be foreclosed on?
  • • Does the estate include personal property?
  • If the estate is insolvent, the law prioritizes payment of three kinds of expenses before MA claims. MA claims take priority after administrative expenses, reasonable funeral expenses, and debts and taxes with preference under federal law.

    C. Local agency collaboration with a county attorney

    With help from your county attorney, you can initiate and administer formal probate to recover on an MA claim. If you pursue an MA claim by initiating probate and becoming the personal representative of the decedent’s estate, you must administer the estate properly by doing the following:

  • • Investigating needed information
  • • Filing the proper forms
  • • Attending required hearings
  • • Distributing estate assets according to law
  • Work with your county attorney to ensure proper estate administration and collection on an MA claim. You can provide background information and prepare court filings for the attorney to ensure efficient and accurate administration.

    Find probate rules under Title V of the Minnesota General Rules of Practice for the District Courts. The Minnesota Judicial Branch also provides statewide probate forms on its website.

    1. Initiating formal probate

    If a personal representative has not been appointed by 45 days after the decedent's death, you may seek appointment as personal representative. See Minnesota Statutes, section 524.3-203, paragraph (a), clause (6).

    To do this, you must go through the initial petition process to become appointed as personal representative. The process is as follows:

  • • You file a court petition for appointment of a personal representative.
  • • You give notice of the initial hearing.
  • • The court holds a hearing to appoint a personal representative
  • • The court issues an order on the petition.
  • See Minnesota Statutes, section 524.3-715, for a list of powers of the personal representatives.

    Note: You may find that, after petitioning to become the personal representative, parties that chose not to become the personal representative initially may come forward and petition to be the personal representative so that you do not administer the estate. Minnesota law establishes priority of appointment for personal representatives. See Minnesota Statutes, section 524.3-203. As a creditor for an MA claim amount, you have sixth priority in the statute.

    a. Information needed to file a probate

    Collect the following information to file for a probate proceeding:

  • • A death certificate
  • • Estate assets
  • • Family administrative expenses
  • • Funeral expenses
  • • Knowledge and a statement of whether a will exists
  • • Names and addresses of heirs and devisees
  • • The amount of the MA claim
  • • The correct venue (the correct county court to open probate in—either the county where the decedent resided or a county where the decedent owned property at death)
  • b. Forms to initiate probate

    Collect all needed forms. The following forms are typically needed when beginning probate:

  • • Acceptance and oath
  • • Certificate of representation
  • • Confidential information form
  • • Hearing notice (if needed)
  • • Letters testamentary or general administration
  • • Petition for either the probate of a will or intestacy
  • • Proposed order
  • • Renunciations (if needed)
  • • Statement of lost or destroyed will
  • • The original will (if available)
  • • Written statement of claim
  • 2. Administering formal probate

    If you are appointed personal representative, you have several responsibilities at the outset of probate. You must give notice to the commissioner of human services; perform a reasonable, diligent search for creditors; give supplemental notice to creditors; compile an inventory; and determine distributions required under law. Throughout administration, keep proper records of every transaction during the administration, including all receipts and disbursements.

    a. Notice to the commissioner

    As soon as possible after being appointed, you must send a notice to the commissioner to DHS to establish that the decedent or decedent’s deceased spouse got health care that was paid for by MA.

    b. Reasonable, diligent search for creditors

    Within three months after the date of first publication of notice, conduct a reasonable, diligent search for the decedent’s unknown or unidentified creditors.

    c. Notice to creditors

    In addition, within three months after the date of first publication of notice to creditors, serve a copy of the notice upon each of the decedent’s then known and identified creditors.

    In addition, as the personal representative, you must give supplemental notice that any claims creditors have against the estate will be barred unless creditors present those claims within four months after the date of first publication of the notice or one month after service of the supplementary notice.

    d. Inventory

    You have six months after appointment as personal representative, or nine months after the decedent’s death, whichever is later, to file or mail an inventory and appraisement. An inventory gives interested parties a description and the fair market value of each probate asset the decedent owned at time of death. It also describes any debts the decedent had at time of death, including the amount of each debt. Refer to Minnesota Statutes, sections 524.3-706 through 524.3-708, for instructions on how to file and serve an inventory.

    Mail or deliver the inventory to (1) all residuary distributees and (2) any interested persons, including creditors, who have requested a copy of the inventory. Send all parties a supplementary or amended inventory if you discover more probate property that you did not include in the original inventory, or if you did not accurately describe the value of an asset in your original inventory.

    3. Closing formal probate

    To close probate, file the following forms, as applicable:

  • • A final account (with applicable schedules)
  • • An inventory (with applicable schedules)
  • • Notice of and order for hearing on petition to allow final account, settle, and distribute estate
  • • Order to allow final account and settle estate
  • • Order for discharge of the personal representative
  • • Petition to allow final account, settle, and distribute estate
  • • Petition for discharge of personal representative
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