Minnesota probate disinheritanceIf you’re preparing to draw up a will or a larger estate plan, it’s natural to think about who you do and do not want to leave your possessions to. In many cases, people spend their time and energy thinking through what items to leave to which of their heirs.

In other cases, the energy might instead be expended not on what to leave someone, but whether to leave them anything at all. Disinheritance can be a tricky proposition, both from an interpersonal perspective and a legal one. To learn more about how the process works, keep reading.

Why disinherit?

This is an incredibly difficult question to answer generally as the decision to disinherit is quite complicated and very personal. In some cases, disinheritance occurs because of a sudden event. A nasty divorce in the family could cause a schism, a sudden recurrence of addiction, an incident of abuse, in some cases, it may be a particularly upsetting argument. Other times, the disinheritance is the product of years of issues and estrangement that have gradually gotten worse, prompting the person making the will (the testator) to finally decide that enough is enough. Each instance of disinheritance is different given the complex personal relationships wrapped up in such decisions.

Who can and can’t be disinherited?

You may think that because the money is yours you can do with it what you want. While that’s generally true, there are some limits that are worth keeping in mind. Across the U.S., the rule is that you cannot disinherit your spouse. One exception is if your spouse agrees to be disinherited, either in a pre- or post-nuptial contract, then it might be possible. Even in the case of a prenup, disinheritance isn’t allowed in Georgia, where everyone is entitled of at least one year of support following the death of their spouse. It should be noted that these rules only apply to current spouses. Recent divorces don’t count and former spouses can be safely disinherited.

What about children? In almost every state in the country you can disinherit children as you wish. The only limitation occurs in Louisiana, of all places. The law in Louisiana says that a parent cannot disinherit children who are younger than 23, who have mental or physical incapacity or who are incapable of taking care of themselves. Except for these very narrow circumstances, disinheritance is legally acceptable.

Beyond these restrictions, the general rule is that you can disinherit whoever you like. It’s your money, and you can control who gets it (and who doesn’t).

Is disinheritance the right call?

Though disinheriting your child (or grandchild, or other relative) may be legally acceptable, that doesn’t necessarily mean it is socially acceptable. Saying you want to disinherit someone sounds easy enough, but can be much more difficult in practice. To make such a bold move is almost assured to damage, often irreparably, your relationship with the person being disinherited. It’s also likely that the ripple effects will extend beyond this person, perhaps harming your relationship with that person’s close friends and family who disagree with your decision. Before making the movie, think long and hard and be sure this is a decision you’re ready to own.

Other options besides disinheritance

Rather than take what some consider to be the nuclear option of disinheriting a loved one, another solution worth considering is creating a trust. How does a trust help in this situation? Rather than simply writing the person off, a trust can be used to control the heir’s inheritance, creating limits that prevent the person from using all of the money at once. You can use the trust to creative incentives for working or going to college or staying drug free. You can also place others in charge of disbursing money to the heir, ensuring that the loved one never has direct access to the asset.

An experienced Minnesota probate lawyer can help walk you through the complicated process of establishing a workable estate plan. For more information on estate planning in Minnesota, along with a variety of other topics, contact Joseph M. Flanders of Flanders Law Firm at (612) 424-0398.

Source: “How to Disinherit Loved Ones—And Which You Can’t,” published at CNBC.com.

Minnesota Probate Payment of Bills of the DeceasedIn a Minnesota probate, the property of a decedent (the deceased person) passes at his or her death to the people named in the will (or Trust) or the decedent’s lawful heirs.  The property is also subject to a spousal elective share right, expenses of administration, and “rights of creditors”.  In this article, we are going to discuss the “rights of creditors” or how to properly pay the last bills of the deceased.

Payment of Creditor Claims

The claims provision of the Minnesota probate code “balance” the laws incentive to distribute the decedent’s estate against the right to be repaid lawful debts.  As an aside, the law is also clear that estate’s are supposed to be “wrapped-up” as quickly and efficiently as possible while still protecting the rights of those who claim an interest in the deceased’s property.

Below are some initial steps that a personal representative (often referred to as an “executor”) should take when dealing with debts of the estate:

  1. Identify the Creditors:  the personal representative needs to make a list of all parties to whom the deceased may have owed money.  The names and addresses of the parties should be provided to the probate attorney so that proper notice of the existence of the estate can be given to the parties.
  2. Identify the Nature of the Debt:   the personal representative should figure out if the bill is justified and valid.  If not, the bill can be contested or potentially reduced.
  3. Provide a Mechanism for Resolving Disputes:  the personal representative should work with the probate attorney to discuss how to resolve any bill disputes;
  4. Determine the priority of the various parties who may be entitled to some of the decedent’s property;
  5. Determine a method of payment of the bills of the deceased.

Minnesota Law

The law associated with creditor claims, for the most part, is contained in Minnesota Statutes 524.3-801 through 524.3-817.  Please review the specifics of the law for details on payment of creditor claims.

The definition of what constitutes a “claim” is contained in Minnesota Statute § 524.1-201(8).  The law provides that “claims include liabilities of the decedent whether arising in contract or otherwise,” and/or “liabilities of the estate which arise after the death of the decedent including funeral expenses and expenses of administration.”

Free Initial Consultations

Contact the Flanders Law Firm today.  The firm offers free consultations to all potential clients.  Call (612) 424-0398.