Author: jlawyer

Minnesota Probate Law | When Trying To Avoid Probate Only Makes Things Worse

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Minnesota Probate LawyerWhen many people sit down to create an estate plan, a common motivating factor is the desire to avoid probate. We’ve said it before and we’ll say it again, probate is a long and cumbersome process that is, usually, good to avoid. It costs money, it wastes time, it can be terrible for small businesses and it’s public, meaning details of your family and estate are available for others to peruse. In short, there are many reasons why your family might benefit from avoiding the inefficiencies of the system.

Though it’s often good to steer clear of the probate process, it is critical that you do so thoughtfully. Working with an attorney to plan out how you want your estate to be managed after you’re gone is wise. Taking shortcuts that could end up causing far more trouble than the probate process itself? Not so much. To learn more about two common probate avoidance shortcuts that you should be aware of, keep reading.

Housing | Minnesota Probate

One of the assets that that people most often worry about is real estate. They want to be sure their home (or second home or rental properties, etc.) doesn’t get tied up in probate court, forcing family members to spend time and money getting it out. To avoid the hassle of probate, some will simply transfer the home to a child while they are still alive. This can be a good thing, in some cases. However, there are a number of serious potential pitfalls.

For one thing, if your child is now the owner of the home, then he or she is able to make decisions about what happens to the property, including if it gets sold. That means you can get cut out of crucial decisions about your home and your future, if the child chooses to do so. Though you may not worry about this risk, understandably willing to trust your child, there are others.

What if your child declares bankruptcy? In that case, your house could be sold off to pay creditors. If, for example, you become ill and need medical assistance under Medicare, you might not be eligible if the transfer occurred around the same time. Another concern is that if your child were to pass away before you, the house would be transferred to his or her heirs, rather than yours.

Banking | Minnesota Probate

Another common approach for probate avoidance is to add a child’s name to your bank account. This can be helpful in that the child is allowed to pay bills on your behalf and automatically becomes an owner of the account in the event of your death. That said, potential problems abound.

Again, if trust is even remotely a concern, this should be avoided at all cost. By becoming an owner of the account, your child could do as he or she wishes, including stealing every last penny. Even if you trust the child totally, harm lurks in the form of creditors or others that your child may owe money to. If your child divorces or is involved in an accident or owes money to creditors, all could result in a judgment seizing your money to satisfy your child’s obligations.

Minnesota Probate Lawyers | Free Initial Consultations

Though many of these risks are speculative, that doesn’t mean they shouldn’t be seriously considered. These kinds of issues occur all the time and should be thought through before moving forward. An experienced Minnesota estate planning 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: “Shortcuts to avoid probate that can cost more than money,” published at GJSentinel.com.

Contesting A Will In Minnesota | MN Probate Law

Posted on by jlawyer

how do i get letters testamentaryFor those who spend the time and energy drafting wills and estate plans, the goal is obviously to ensure that your wishes are respected once you’re gone. Going to this trouble is supposed to ensure that things go smoothly when it’s time to distribute your assets to heirs. Though this is true most of the time, there are circumstances in which things don’t go perfectly to plan. In cases where fraud may have happened or an heir has especially hurt feelings, it’s possible that the will could be challenged in probate court. To find out more about how contesting a will works, keep reading.

Why?

The good news, at least for those drafting the will, is that wills are official legal documents and are thus not easily ignored. Simply disliking the results of a will or feeling you didn’t get a fair shake isn’t enough to justify a valid challenge to a will. Wills can be contested for a variety of valid reasons and these include things like fraud, duress, undue influence, mental incapacity, improper witnessing and the existence of ambiguous language. A will contest requires the existence of a valid legal question about the document itself or the process by which it was created, sour grapes aren’t sufficient.

Who?

Can anyone challenge a will? Thankfully, no. Probate law says that wills can only be challenged by those with proper standing, meaning heirs and other beneficiaries. A person needs to be mentioned in the current will or some previous version of the will. Interestingly, someone mentioned in a will for the purpose of being disinherited is enough to give that person the standing to raise a challenge. These rules mean that those who can bring a challenge are almost always spouses or children of the person who crafted the will.

When?

How long does an heir have to contest a will? The answer varies depending on your location, as each state puts a different spin on its probate rules. In Minnesota, Section 524.3-109 of the Probate Code says that a person has one year after the date of death of file challenges.

Contesting A Will In Minnesota | How?

If it turns out that you have standing to contest the will and have legitimate grounds to do so, the next step is to file a petition with the probate court in which the will has been entered into, objecting to its validity. All heirs and beneficiaries of the estate will need to be informed of the challenge, giving them an opportunity to intervene should they choose to do so. After everyone is on notice, it’ll be time to gather information from other parties, put forward your arguments and lay out your justifications for invalidity. If, after that, you aren’t able to negotiate a mutually agreeable settlement to the dispute, the matter will need to be decided by a probate judge.

Though contesting a will is clearly possible, it’s important to understand that doing so isn’t easy or fast. Any challenge will need to be based on valid grounds, not just displeasure with the disposition of an estate. Even then, victory is not assured and you’ll likely spend a good deal of time and money fighting it out. Just something to keep in mind before heading off down the road of a will contest.

Minnesota Probate Lawyers

An experienced Minnesota estate planning 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:  “What Are the Grounds for Contesting a Will?,” by Julie Garber, published at TheBalance.com.

How Much Does Probate Cost? | Minnesota Estate Law

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How Much Does Probate Cost?The Costs of Probate

If a deceased person failed to take action and died without an estate plan in place, it’s likely that the deceased person’s heirs may be cleaning up a messy probate.

This might not matter much to the deceased person; however, it usually matters a great deal to the heirs of the estate. Beyond being time-consuming, bureaucratic, and complex, a probate can also be expensive.  And who gets stuck paying the bill?  The heirs. The assets that you left behind are diminished to cover the costs associated with the probate process, leaving less to distribute among the heirs.

Probate Fees and Court Costs

First, let’s make an important point about the costs of probate: everything is relative. Though some fees apply across the board, such as court costs and publication fees, the cost of attorney fees varies depending on the size and issues involved with the estate.  Often, the greater the value of the probated property, the more expensive probate will be.

Personal Representative Fees

The next big category of expense is personal representative fees. These fees are dictated by state law. In some places, like Florida, all personal representatives are entitled to a flat 3 percent of the value of the estate. In Minnesota, things aren’t so simple. Minnesota law (Minnesota Statute Section 524.3-719)  says that personal representatives are entitled to a “reasonable” fee for their work. How much that amounts to depends on how much time and energy the probate case takes. The size and complexity of the estate will likely figure into this calculation. If it’s a large estate that requires a significant commitment of time (which isn’t unusual), then the personal representative’s fee may prove costly. If your personal representative is feeling generous, he or she is also allowed to waive the fee.

Costs of Administration

Beyond the personal representative, probate attorneys and accountants can also request a share of the estate to help pay for their work.  In both cases, the amount of the fee will depend on the value of the estate and the complexity of the estate management and distribution. Lawyers will keep track of their time and submit bills to the court asking for reimbursement of their work from the estate.

A final category of fees paid out during probate falls under the “miscellaneous” heading. You need to keep in mind the cost of mailing notices and other documents to the court and to heirs of the estate. There’s the cost of moving, storing and insuring probated property to make sure it isn’t damaged while waiting for the estate to be administered. If a house is involved, the costs can really start to add up, because the personal representative often will need to use estate funds to pay for home upkeep and repair as well as any bills associated with keeping the property in good condition.

Though the amount of money varies widely, experts say that if your estate ends up in probate court it is possible that between 3 and 8 percent of the total value of the estate could be lost due to payment of fees. Though it may not sound like much, adding up all the money that won’t be going to your heirs, but will instead go to paying courts, accountants and attorneys, might be enough to make you rethink creating an estate plan.

Minnesota Probate Lawyers

An experienced Minnesota estate-planning 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 Much Does it Cost to Settle a Trust After the Trustmaker Dies?”, by Julie Garber, published at TheBalance.com.

Minnesota Guardianship | What is a legal guardian?

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Minnesota Guardianship to MinorGuardianship in Minnesota

In certain situations, a court may appoint a person to make personal decisions for a person incapable of making their own personal decisions. These people are known as guardians and their position is naturally, referred to as a Minnesota guardianship. They provide a valuable service. This article intends to define a guardian, their duties, what they can do on behalf of a person, and what the limitations are.

Guardians Roles in Minnesota

There are different types of guardian roles within Minnesota, depending on what service the guardian is providing. The definition of guardian in Minnesota is “a person who has qualified as a guardian of a minor or incapacitated person pursuant to appointment by a parent or spouse, or by the court . . . .”Minn. Stat. § 524.5-102 subd. 5. A guardian makes personal decision on behalf a ward – generally thought to be the incapacitated person. Minn. Stat. § 524.102 subd. 17. Another type of guardian is a conservator. A conservator relates more to estate planning. Minnesota statutes defines conservator as a person who manages a protected person’s estate. Minn. Stat. § 524.5-102 subd. 3.

The court imposes certain procedural requirements upon a guardian. For example, the guardian must submit what is known as a Personal Well Being Report to the Court on the ward’s health, mood, recovery, or other matters. Minn. Stat. § 524.5-316 (a). Similarly, although the guardian may generally make decisions regarding the ward’s assets, he or she must provide at least ten days notice to the ward before doing so. Min Stat. § 524.5.313(c)(3).

Law on Guardians in Minnesota

In re Guardianship of Jeffrey DeYoung, 801 N.W.2d 211 (Minn. Ct. App. 2011) provides an overview of the guardian’s duties. The mother appealed the district court’s refusal to remove the guardian in charge of her adult son, who was severely disabled. Id. at 212. The ward’s father and the guardian opposed the proposed removal. Id. at 213. In addition, the mother sought to assume the guardian role upon removal of the ward’s current guardian. Id.

Evidence indicated the guardian restricted the mother’s visitation time after observing possible abuse of the ward. Id. The mother’s primary contention was that the guardian, in placing the ward in a supervised home designed for disabled people, improperly delegated her duty as a guardian third parties. Id. at 217–18.

The Court of Appeals agreed. First, the Court of Appeals noted Minnesota prevents “any individual of agency which provides residence, custodial care . . .or other care or service for which they receive a fee.” Id. at 217 (citing Minn. Stat. § 524.5-309 (2010)). Because a guardian enjoys duties and power given it to it by the judicial branch, a guardian cannot delegate powers to a third person. Id. Although the guardian may adopt recommendations from health care professionals or other experts, the guardian cannot completely delegate their authority. Id. at 218.

In re DeYoung provides a nice distinction on the guardian’s duties to a disabled in healthcare, financial, or other matters. They may obtain information from third parties regarding appropriate courses of action, but they may not wholly delegate the duties of a guardianship to another person.

Minnesota Guardianship Lawyers

Contact Flanders Law Firm LLC today for your free initial consultation on legal guardianship in Minnesota.  We are happy to answer any questions you may have.  Call the attorneys at 612-424-0398.

What happens when someone dies without a Will in Minnesota?

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Dying Without a Will in MinnesotaIntestate Estates

When someone dies without a Will in Minnesota, it means they died “intestate”.   (This is as opposed to someone dying with a Will.  In such a case, that person died “testate”).

Who receives and inheritance if a person dies without a Will?

They law on intestate “succession” is somewhat complicated.  This is mainly due to the conflict between what a “surviving spouse” must legally receive versus what surviving children may receive.

In essence, the surviving spouse, if there was one, has first-priority to many probate assets which belonged the deceased person (decedent).  We have written other posts about the rights of surviving spouses.  If you have specific questions about surviving spouse rights, read those posts or call the law office.

Intestate Succession for Deceased Person’s without a surviving spouse

The purpose of this article is to outline what happens if a person dies without a Will and did not have a surviving spouse.  In this case, the children of the deceased receive the entire probate estate.  End of story.

However, in many cases, the law office receives telephone calls from heirs who are not children or surviving spouses.  Essentially, mainly people want to know who gets what if there were not children or surviving spouse.

The deceased person had no children

This is where things get interesting.  Basically, Minnesota Statute 524.102 tells us that:

The deceased person’s remaining assets will be distributed:

  1. to the decedent’s descendant’s by representation;
  2. if there is no surviving descendant, to the decedent’s parents equally if both survive, or to the surviving parent;
  3. if there is not surviving descendant or parent, to the descendants of the decedent’s parents or either of them by representation;
  4.  if there is no surviving descendant, parent, or descendant of a parent, bu the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent’s paternal grandparents and half to the maternal grandparents, by representation.

These are the four main categories of possible heirs.  Basically, here is the rundown of who receives and inheritance under Minnesota law if a person died intestate:

  1.  the surviving spouse
  2.  the surviving children
  3.  the deceased’s parents
  4.  the deceased’s siblings
  5.  the deceased’s nieces and nephews
  6.  the deceased grandparents or, more likely, one-half to each side of the grandparents family, by representation.

Please be cautioned that the above-explanation is not perfect.  There are slight differences in the statute.  If you have any questions about this, a Minnesota probate lawyers should be consulted.

Free Initial Consultations

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

Minnesota Probate Law | Testate v. Intestate?

Posted on by jlawyer

Testate v. IntestateTestate v. Intestate

Did the person die testate or intestate? What will the decedent’s share of the intestate amount to? Were there any named beneficiaries? If these terms seem unfamiliar, that is natural.

They are terms commonly used in relation to wills, trusts and probate proceedings. Although the arcane language can seem intimidating, it is very manageable. The purpose of this article is to explain what intestate means, discuss case law in Minnesota, and propose how to avoid intestate succession in your own family.

In plain English, intestate succession refers to a person who dies and does not leave a will. Where the individual has neglected to leave a will, Minnesota provides for a statutory remedy for disposition of assets in the event of intestate succession. Under Minnesota law, an intestate estate is “any part of the decedent’s estate not allowed to the decedent’s spouse or descendants and not disposed of by will.” Minn. Stat. § 524.2-101(a). Therefore, the intestate estate will pass to the decedent’s heirs. As always, there is a statutory provision in Minnesota defining heirs as those entitled to intestate succession. Minn. Stat. 524.1-201(28).

Although it can vary, heirs are generally thought of as relatives to the decedent. Minnesota statutes provide for intestate succession as well. Of course, there are more arcane legal words. For example, after a spouse, Minnesota intestate succession next devises to issue. “Issue” is a legal term for a decedent’s lineal decedents.

Minnesota Probate Case Law

An intestate will may spring up issues to unsuspecting heirs. In re Beachside I Homeowners Assn’s, 802 N.W.2d 771 (2011) is an example of this. The decedent passed away intestate, thus triggering Minnesota’ intestate succession process. Id. at 772.

Therefore, under the succession statute, one half of the condominium passed to the decedent’ brother, and the other half went to the decedent’s nephews. Id. This may have been more than the decedent’s nephew bargain for, as the nephew fell behind on the payment, causing a tax lien to be placed on the property. Id. Even though this result may not have been beneficial to the heir, the Court of Appeals walked through the logic for why the heir maintained a valid interest in the property. The Court of Appeals explained, “in the absence of [probate] the heirs and devises are entitled to intestate succession . . . intestacy may establish title thereto by proof of decedent’s ownership and death, and their relationship to the decedent.” Id. at 774.

In re Beachside exemplifies why leaving a testate will if preferable for those considering these issues. The nephew inherited a property that he could not maintain and pay for, likely causing a huge headache for those involved. Generally, leaving a testate will is preferable.

For those considering such matters, contact a knowledgeable Minnesota probate attorney for assistance.

Free Initial Consultations

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

What is a Personal Representative | Minnesota Probate Law

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what-is-a-personal-representativeWhat is a Personal Representative?

Pursuant to Minnesota probate law, the personal representative is the person who is chosen by the deceased and/or appointed by the court to run the estate. The term “personal representative” is also how Minnesota law refers to this person.  The terms “executor” or “executrix” are not used in Minnesota.

This personal representative is also referred to as “the executor, administrator, successor personal representative, [or] special administrator” of a deceased person’s estate.

Duties and Powers of the Personal Representative

The duties and powers of the personal representative are defined in Minnesota Statutes Sections 524.3-701 to 524.3-721.  It is the personal representative’s job to settle and distribute the deceased person’s estate.  The personal representative must follow the instructions of the Will and/or the Minnesota intestacy laws if the deceased person did not have a Will.  The term “intestacy” means that the person died without a Will.  Different laws are applied in “intestacy” estates versus estates where the deceased had a Will.

The personal representative is also required to perform his or her duties “expeditiously and efficiently as possible while at all times acting in the best interest of the estate.”  It can be a big problem when the personal representative does not properly do his or her job.  Except as is differently stated in a Will, every personal representative has the right to take control of the deceased person’s possessions, property, and debts.  This will enable the personal representative to administer the deceased’s estate.

Foremost, the personal representative has a serious duty to look out for the best interest of the estate while simultaneously realizing that the estate there for the benefit of the heirs, devisees and any creditors.  The estate is not there for the benefit of the personal representative.  In fact, in the opinion of the Minnesota probate attorneys at the law firm, the job of the personal representative is often thankless and not much fun at all.

Powers of the Personal Representative

The personal representative must pay taxes on and take all steps necessary for the management, protection, and preservation of the estate.  Failure to do so may result in personal liability for the personal representative.

Until the estate is closed and the court allows the estate to terminate, the personal representative has the same power over the title to property belonging to the estate as the deceased would have had.  However, it is extremely important to remember that the personal representative is a “fiduciary” for the other heirs, devisees, and creditors of the estate.  Please keep reading different articles on this website if you have questions about what those terms mean.  Or, please contact the law firm to discuss your case.

Free Initial Consultations

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