General Power of Appointment | Minnesota Probate

Posted on October 10, 2016 by jlawyer

General Power of Appointment in Minnesota Probates

When a person passes away, and they held what is called a “testamentary power of appointment” over property that could, conceivably, be used in favor of the deceased, a creditor can make a claim against that person or the deceased person’s Minnesota probate estate.

Why does this matter?

A power of appointment is a construction of law. Basically, when a person owns and interest in property, and they pass away, the law has to determine a way to “deal with” that property interest. Furthermore, creditors (people or companies that the deceased owed money to) should have a right to make a “claim” against that interest.

It is important to remember that the deceased person’s creditors can filed a claim against all property belonging the the deceased. Obviously, a power of appointment is a property interest.

What about property which the deceased “gave to ” someone else?

It is important to remember that if the deceased “gave” their power of appointment to someone else, the creditor can still make a claim against that property interest against the person who the deceased gave property to.

Our firm often sees this problem in cases where a deceased may have transferred, sold, or gave away an interest in a home or farm in Minnesota to else. This person is usually a family member. The family often wants to save money for the family. Sometimes, in an effort to save money and property, the family does not work with a lawyer and simply deeds or transfers the property to someone in the family. Needless to say, failing to work with a Minnesota probate lawyer can be a bad idea. It helps to know what you are doing.

Recovery Against Distributees

Sometimes estate assets and improper uses of power of appointment take place. This causes legal problems for the family and the estate. After estate assets have been distributed, a creditor whose claim has not been discharged or barred may seek recovery from a person or person’s who received the deceased’s assets.

Allegations of “fraud and misrepresentation” often come up in this instance. It is important that the personal representative not make distributions until the estate is “finalized”. If you have questions about what the means, you should speak with the probate attorney. If you don’t have an attorney, you should get one. Failing to follow the law can lead to significant personal liability for an heir, distributee, and personal representative.

Minnesota Probate Lawyers, Free Initial Consultations

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

Distributions to a Minor Child | Minnesota Probate

Posted on September 23, 2016 by jlawyer

Distributions to a Minor Child

Many people who contact the law firm have very specific questions about distributions to a minor child in a Minnesota probate. We are drafting this article to provide information that you can use in our particular situation.

The most common occurrence of when distributions need to be made to a minor child is when the child’s parent suddenly dies. This tragic circumstance often creates confusion around what the deceased person’s minor child will receive from the deceased person’s estate. This article will discuss probate law and how the law deals with inheritances of a minor through the probate process. There are other instances (or simultaneous instances) when a guardianship and/or conservatorship for the minor child may also need to be discussed.

Minnesota Probate Law

If a personal representative is required to give money or personal property to a minor child pursuant to deceased person’s will or the law of intestacy (without a Will) the distribution can be accomplished by transferring an amount not exceeding $5,000 per year to:

the conservator for the minor child
a person who has the care or custody of the minor and with whom the minor child lives with
a guardian of the minor

There are other instances in which the personal representative can distribute money to a financial institution or custodian under the Uniform Transfers to Minor Act. That act will not be discussed in this article.

Appointment of a Guardian and/or Conservator

Minnesota law makes a distinction between (1) the guardian of the “person” of a minor and (2) the conservator of the “estate” of the minor. The “person” is the health and welfare of the minor. The “estate” is the personal property and/or money belonging to the minor.

For purposes of distribution of assets from a probate estate, the personal representative may need only accomplish the appointment of a conservator. Specifically, Minnesota statutes 524.5-402 through 524.5-409 provide the information on how to set up a conservatorship for a minor. Additionally, the “venue” for a conservatorship for a minor is the county where the minor resides, or, if the minor does not reside in the state, any county where the property is located.

Minnesota statute 524.5-401 sets for the information which is required to be in a Petition for the appointment of a conservator. The petitioner is the proposed Conservator. This person may also be the same person who is the personal representative of the estate. The petition should contain the following information:

the minor’s name, age, and place of residence
the name and address of the minor’s parents and adult brothers and sisters
the name and address of any legal representative of the minor
a general statement of the minor’s property and an estimate of value
the reason that the conservatorship is in the best interest of the minor
the name and address of any proposed conservator and the reason why that person should be selected
the type of conservatorship which is requested – a limited or an “unlimited” conservatorship

The above information is simply what the statute requires. Other information may be required depending on the specific facts of the case. An experienced probate attorney should be consulted for specific questions.

Free Initial Consultations

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

Selling a Home in a Minnesota Probate

Posted on August 30, 2016 by jlawyer

Questions about the selling a home in a Minnesota probate?

The law firm has experienced attorneys who know how to guide clients through selling a a home in a Minnesota probate. Click on the link if you have questions about How to Probate a Will in Minnesota.

Unlike the typical home sale process, probate law has its own rules and regulations which must be followed. There are certain preliminary considerations in every probate involving the sale of a home or other real estate.

Preliminary Considerations

The sale of real estate in a Minnesota probate may present a number of issues. The first issue is whether the deceased person (decedent) had a Will or died intestate (without a Will). If there was a Will, the personal representative of the estate should review what the decedent wants to happen. If the decedent specifically “gave” the home or other real estate to a specific person, those wishes must be followed. If the decedent did “give” the home to a specific person then it belongs to the heirs of the estate, in equal shares.

Next, the personal representative must figure out whether his or her authority to sell the property is in some way restricted by the law. For instance, if the home is classified as a “homestead” under Minnesota law, it is exempt from most creditor claims (other than property taxes, other judgments or liens, and a medical assistance lien).

Consent of the Heirs

If a parcel of real property is classified as a homestead, the personal representative may not sell the property to pay administration expenses without the written consent of interested parties. Most Wills specifically grant the personal representative to power to sell property. Also if the decedent died intestate, then Minnesota law does give the personal representative authority to sell the home. However, the money from the sale needs to be placed into an estate bank account. However, again, in the case of a homestead property, the personal representative cannot sell, mortgage or lease the property without the written consent of the surviving spouse, if any.

Order of the Probate Court

If there is a problem with the sale of a home or other real estate, it may be necessary for the personal Representative to obtain the permission of the court to sell the real estate. What does this mean? It means that the person in charge of the estate must petition the court for an order approving the sale. This means going to court, sending notice to all interested parties, and having a court hearing on the issue. The probate attorneys at the law firm have experience doing this.

Personal Representative Conflict of Interest

Finally, the personal representative should be careful about selling the home to themselves or his or her spouse, agent, attorney, or any corporation or trust in which the personal representative has a substantial beneficial interest. Any such sale is voidable, unless: (1) the Will or contract signed by the decedent expressly authorizes the transaction, or (2) the transaction is approved by the court after notice to all interested parties and a hearing, or (3) all interested parties consent to the sale after full disclosure.

Minnesota Real Estate Lawyers

Contact the Flanders Law Firm LLC today for a free initial consultation about selling homes or other real estate in Minnesota probates. The firm has years of experience dealing with all issues related to probate and selling real estate. Call today at 612-424-0398.

Decree of Descent | Minnesota Probate

Posted on August 18, 2016 by jlawyer

Many people are unaware that there are different types of probates in Minnesota. Not every probate is the same. For this post, I will be discussing Decree of Descent and Summary Administration proceedings as they relate to Minnesota probate law.

What is a Minnesota probate?

The first question that people should ask is what is probate?

The probate proceeding is a construction of Minnesota law which outlines the steps and procedures which need to be taken to administer a deceased person’s estate. All probate , money, belonging to a deceased person, needs to be probated in some fashion. Generally, people with estates worth under $50,000 can proceed with a small estate and no probate administration is required.

What if the deceased person’s assets are worth more than $50,000? Once the threshold level of $50,000 is reached, the probate attorney will begin to think about how to properly administer persons estate in a court of law. The first thing that I go through, as an attorney is whether a formal or informal probate is necessary, whether Decree of Descent proceeding is available, or whether a Summary Administration maybe available.

Decree of Descent

Again, remember that a probate proceeding is the legal proceeding to deal with the deceased person’s assets and that upon their death.

Minnesota law tells us that a separate proceeding may be commenced if the deceased died over three years ago but they’re still probate assets. In my experience, it is common that people do not know what they’re supposed to do legally after a person’s death. Often, people do not want to do anything and do not understand that the lawyer may need to get involved. Because of this, probate assets can lie dormant for many years but they still need to be probated.

A Decree of Descent proceeding is a legal vehicle whereby a personal representative or interested party of a deceased person’s estate can petition the court for an order instructing the heris and other interested parties how to convey the deceased person’s assets. This is normally a quicker proceeding because the creditor claims period is different. The law takes viewpoint that creditors should have tried to collect against a person’s estate within three years. If they did not, too bad.

If a creditor has not made an attempt to collect a debt, the law considers that that, in most instances,the probate court will not require the creditor claim period. That is the main purpose of a Decree of Descent proceeding. As I stated previously, it is a quicker and less expensive.

Minnesota probate and summary administration’s

Much like a Decree of Descent proceeding, a Summary Administration maybe be available if the deceased person’s assets, and home, are exempt from creditor claims.

There are certain exempt assets in every Minnesota estate. The deceased person may have had probate assets belonging to him or her; however, much like a tax return, the deceased person’s estate has exemptions which are not subject to creditor claims. For example, a the homestead of the deceased is exempt from all creditor claims in most instances. Therefore, the home will not need to be sold to pay creditor claims, medical bills, and other debts.

Like a Decree of Descent proceeding, this process is generally quicker and less expensive for the deceased because it takes less time and attorney work.

Minnesota Decree of Descent and Summary Administration lawyers

Please contact Joseph M Flanders at Flanders Law Firm LLC to discuss whether your loved ones the state may qualify for a Decree of Descent or Summary Administration proceeding. There are specific facts which apply to every case and an experienced probate attorney should be consulted. Please call the firm today at 612-424-0398 for your free initial consultation.

MN Probate Law | Starting a Probate in Minnesota

Posted on August 11, 2016 by jlawyer

Many of the people who contact the law firm have questions about starting a probate in Minnesota. The simple answer is that an attorney must be hired and that certain intake questions must be filled out by the proposed personal representative.

The Personal Representative

The personal representative, often referred to as an “executor” or “executrix”, is the person nominated in the will to serve the estate and the other heirs. If there is no will the law in Minnesota tells us that children have equal priority to serve as personal representatives. This means that the deceased person’s children may each serve or that the children may come to an agreement on who serves as the personal representative

Starting a Probate in Minnesota

As stated above, the personal representative should contact a experienced and qualified probate attorney. The attorney will typically have an intake form asking personal information about the deceased, their heirs, and the creditors of the estate. It is very important to have accurate information gathered because this information will be the building-block for the entire case. The law firm has had many instances in which an heir had the wrong address listed and it was difficult to communicate with them due to this. The personal representative’s job is often difficult, tedious, and not something most people are used to.

The Probate Petition

Once the personal representative and the attorney work together to gather all necessary information, the attorney will begin drafting the necessary paperwork to get into court and have the court issue “letters testamentary” or “letters of general administration” to the personal representative.

The personal representative has to meet certain qualifications and follow certain laws prior to being appointed by the court. The personal representative will not receive the letters testamentary or letters of general administration until the proper legal steps are followed.

The most important provisions of the petition are to identify the deceased, the heirs, and creditors. Next, the personal representative must submit the petition to the proper County District Court. Finally, the personal representative must publish notice in the newspaper and give written notice to all interest interested parties.

What are interested parties? Minnesota law defines interested parties as any person who may have a claim to assets of the estate or debts of the estate. The persons having claims to assets of the estate are often thought of as the “heirs”. The people having claims against the debts of the estate are often referred to as “creditors”. Each of these categories have specific laws and rules that apply and a probate attorney should be consulted to interpret the law.

The initial probate court hearing

Once the proper probate information is gathered, an attorney is hired, and the proper steps are taken in the probate petition, the personal representative will have to attend a court hearing in the County District Court. The County District Court rules pertaining to what happens at a court hearing are different for each county. This can be very frustrating for most people – and many attorneys. The law firm has experience working with the different court rules in each county in the different judges in each county. This experience can be invaluable to quickly and efficiently start and finish a probate estate.

Questions about Starting a Probate in Minnesota?

Contact Flanders law firm LLC for a free initial consultation about starting a probate in Minnesota. The law firm has experienced attorneys who know the ins-and-outs of the probate law and how to commence in the probate and get it done. Call the firm today at 612-424-0398.

MN Probate Law | Distributions to a Minor

Posted on June 15, 2016 by jlawyer

Minnesota law has specific laws about how a personal representative (executor) is to handle distributions to a minor from an estate.

Specifically, if the personal representative is required to transfer money to a minor pursuant to the terms of a deceased’s Will or intestate succession, the distribution can be made by transferring not more than $5,000 per year to:

(1) A person who has the care and custody of the minor and with whom the minor lives;

(2) a guardian of the minor

(3) a custodian under the Minnesota Uniform Transfers to Minors Act;

(4) a financial institution as a deposit in an interest-bearing account in the sole name of the minor and giving notice of this deposit to the minor.

However, the personal representative should keep in mind that the option listed above are not available if a Conservator has been appointed for the minor. In this case, the Conservator must receive the funds.

Personal Property Distribution to a Minor

When a minor child receives or is entitled to personal property, the court may order the personal representative to deposit such property in a savings account or deposit at a bank. The court can also order that the personal representative can give up to $2,000 to the minor’s parents as custodians for the funds.

Uniform Transfers to Minors Act

Minnesota has a specific law on transfers to minors – the Uniform Transfers to Minors Act. If a Will or Trust or intestate succession authorizes a transfer to a minor, the personal representative may transfer the money/assets to a custodian pursuant to Minnesota Statutes 527.29. This transfer must be for the benefit of the minor. The transfer will be made if the personal representative believes it will be in the “best interest” of the minor and if it is not specifically prohibited by the language of the Will or Trust.

Finally, if the transfer is $10,000 or less, it does not have to be approved by the probate court.

Appointment of a Guardian or Conservator

Attorneys will often advise families to petition the court for a person or persons to be appointed conservator and/or guardian of a minor in cases where the minor will receive a large amount of funds.

The venue for a conservatorship is where the minor resides. However, if the minor does not reside in Minnesota, the court can have venue in the county where the property of the deceased resides. This is often the same county as the probate court and the probate lawyers can work with the family to handle both the estate and the guardianship in the same court.

Free Initial Consultations

Questions about first time personal representative duties? Contact the Flanders Law Firm today. The firm offers free consultations to all potential clients and Dakota County probates. Call (612) 424-0398.

Minnesota Estate Tax | IRS and Consistent Basis Reporting

Posted on June 10, 2016 by jlawyer

As reported by attorney Richard Hawke of the Minnesota State Bar Association (MSBA), the Internal Revenue Service (IRS) released “temporary” and possible future regulations regarding basis consistency and reporting regulations. Click on this link for the article. The proposed legislation would be codified under Internal Revenue Code (IRC), sections 1014 and 6035. These regulations were to take effect on March 2, 2016 with a possible update coming on May 31, 2016.

As reported by attorney Hawke:

“In an ongoing effort to ensure that estate executors and beneficiaries who receive property from an estate report a consistent basis to the IRS, Congress enacted tax code Section 6035. Section 6035 requires the executor of an estate, who is required to file an estate tax return, to provide statements to the IRS and to each beneficiary on the values of any estate property.”

In response to Minnesota probate attorney concerns about this regulation, attorney Hawke reported that:

“On March 2, 2016, the IRS released proposed REG-127923-15, which provides guidance to practitioners on the reporting requirements. The IRS did exclude certain assets based on the comments it received, specifically, the IRS stated that cash, income in respect of a decedent, tangible personal property not requiring an appraisal, and property sold or disposed of by the estate in a transaction where capital gain or loss is recognized—and not distributed to the beneficiary—does not have to be reported. Additionally, tax returns filed solely to claim portability are exempt from the basis consistency requirements”

This issue is ongoing and fluid. We will update this post with more information when we have it.

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.