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Personal Representative Liability | MN Probate Law

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Personal Representative Liability

Personal representative liability in a Minnesota Probate

“Liability” is a very serious concern. Black’s Law dictionary defines “liability” as:

The state of being bound or obliged in law or justice to do, pay, or make good something; legal responsibility. Wood v. Currey, 57 Cal. 209; McElfresh v. Kirkendall, 36 Iowa, 225 …

It is important to understand that a personal representative or an executor of an estate could be held “liable” or “obligated in law or justice” to pay for certain debts if he/she is doing things improperly. What does improperly mean? It is complicated, but improper personal representative conduct can include things like:

  • Breach of Fiduciary Duty
  • Negligence
  • Failure to pay creditor claims
  • Failure to make distributions properly
  • Excessive cost and fees for the administration of the estate

All of the above are only a few examples of improper behavior of a personal representative which could cause liability. Minnesota probate law if very clear that personal representatives needs to serve the estate – not themselves.

Failing to serve the estate can result in a claim for breach of fiduciary duty. When someone signs a petition to probate the estate in a Minnesota court, they also must sign a document called an “Acceptance of Appointment and Oath.” This oath is taken very seriously by the courts. The personal representative is swearing, under oath, that they fill follow the law.

Breach of Fiduciary Duty

The most common example of personal representative liability in a Minnesota probate is a claim for breach of fiduciary duty. What does this mean?

Basically, a “fiduciary” is alike a bank: they are required to hold money, in trust, for others. They most be honest and diligent and invest in a prudent manner.

They must pay bills and act in a lawful fashion. Unfortunately, a number of personal representatives often view estates as a “free lunch” and act less than honestly. Doing so can create claims for breach of fiduciary duty.  The big example is not handling estate cash properly.

Some common examples of breach of fiduciary duty are:

  • Self-dealing
  • Improperly using estate money
  • Combining estate funds with personal funds
  • Failing to invest properly
  • The failure to act in the interested parties’ (heirs) best interests
  • Lying about estate assets
  • Not locating estate assets
  • Favoring one beneficiary over others

Above are only some of the examples we have seen as Minnesota probate attorneys.

Minnesota Probate Lawyers

Of course, it is always a good idea to talk with an experienced probate attorney if you have any questions about personal representative liability.

Joseph M. Flanders and Flanders Law Firm LLC have helped both personal representatives and heirs deal with this thorny legal issue. A lot of money can be at stake in estate and people need to deal with it properly.

Contact the probate law firm today for your free initial legal consultation. 612-424-0398.

MN Probate Law | What Can Slow Down the Probate Process

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What Can Slow Down the Probate ProcessWhat Can Slow Down the Probate Process

Expect the Unexpected

You’ve probably heard that you should expect the unexpected in some way, shape, or form before. This is also true when it comes to the probate process. When you work with a probate attorney, they might be able to predict what will slow down the process.

However, that doesn’t mean that you should expect that everything will go fast as possible. Roadblocks can come up on a whim. For best results, consider starting or at least preparing for the probate process early on, before stuff has time to come up. An attorney might even end up helping the process to go faster, saving you valuable time.

The Will to Problem

Just because a will exists doesn’t mean that everything will go easily. Issues can normally be avoided preemptively by getting the will professionally written. Nonetheless, there are still cases in which the will is not properly prepared, leaving for issues to potentially arise. If you’re still just preparing for the probate process and the owner of the will is still alive, there’s always the chance that you could help them rewrite the will.

However, if the owner of the will is no longer able to rewrite the will, you might end up getting stuck with the will in its current state. One of the best things that you can do is have a professional look at the will to assess it. When in doubt, assume that issues surrounding the will shall come about.

Lots of Benefactors

Being liked by many people and having lots of family are not themselves bad things. But as far as speeding through the probate process, having multiple beneficiaries isn’t going to make things go any faster. If anything, having lots of beneficiaries is going to cause things to take more time.

Realize that every beneficiary needs to be notified. Miss one or if you run into trouble finding one, then things will most likely take longer than you originally planned. You might even run into having to get the beneficiaries sign documents and if anyone decides to take their time and be lazy, you’re going to need to push them to move forward.

Wills Galore

Even if the will is legitimate, there’s also the chance that there could be several wills to shift through. Here’s the catch: the court has to sort through each will. In the case that the court is unsure which will is the latest will, they need to figure out which one is the most current. At the same time, there’s another small catch. The court will also need to verify whether or not the will accurately represents deceased’s desires. There can be updates to previous wills, causing updates to be incomplete apart from the will itself. So, even if you have a part of the will, you might not have all the pieces to the puzzle. Don’t assume that there’s only one document.

Strange Assets

The child inside of all of us probably has wanted to be a treasure hunter at some point in time. You’d probably give up trying to win the lottery if you found out a relative was going to pass down a valuable heirloom. At the same time, comprehend that dealing with abnormal or valuable items can slow down the probate process significantly. You’re not talking in terms of mere cash. Items need to be valued. And as each rare asset comes to the forefront, each object has the potential of slowing things down.

You might find that the assets can’t be assessed all at the same time. Don’t focus about having to fight your family over rare items. Prepare yourself for having to deal with assets that aren’t easy to acquire or liquidate.

Speed Up the Process

You probably want as much time as you can get. You don’t need to wait forever to complete the probate process. Simply call a lawyer about probate law, schedule your free consultation, and see if they can speed up the process.

The law firm of Flanders Law Firm LLC might be the best place to help you move forward. Dial 612-424-0398 to get the ball rolling. That way, you can hopefully speed up the probate process without wasting your valuable time. If you have the time now, consider using it to save time later on.

When Is Probate Necessary?

Posted on by jlawyer

For Complex Estate Situations

Generally, you should consult a lawyer when you’re dealing with a larger probate estate.

However, you may also need to speak to your lawyer if the estate itself is not set to pass onto someone else. When there are multiple parts to an estate that need to be separated out, your family might benefit from having a lawyer step in and sort out everything.

There are lawyers out there that understand that ensuring everyone’s happiness isn’t always a simplistic task. Above all, double check with your lawyer about whether or not your state actually requires you to have your will probated. You probably won’t be around once you’re loved ones find out that your will wasn’t properly set into place. Otherwise, they might find out they need help when it’s already too late.

Sole or Shared

If you own something that’s only in your name, your car for example, or shared with another individual, say a building that you invested in, those things might go through probate. Probate law is commonly used for getting the stuff that’s in a sticky situation out.

Just because you gave your granddaughter a card saying that you want to give her your car upon her eighteenth birthday doesn’t make it legal. It may help the legal process since it technically is in writing, but if you truly want to pass down something in your name, you want to make sure that everything’s legal. When in doubt, pitch a call to your lawyer and explain your situation.

What Doesn’t Qualify

As mentioned previously, shared assets sometimes will go through probate since part of the shared asset was owned by the deceased. This is not always the case. Certain items that automatically go to a surviving owner may not need to go through probate. However, when the jointly owned assets don’t automatically transfer, you need to start thinking about probate law. Similarly, if there exists a valid beneficiary designation for a given asset, it might not need to go through probate law.

The same is true for assets that are listed in the deceased’s trust. That’s why estate planning is so beneficial, because it helps settle things before problems arise. However, if you know of any existing assets that do not fall under one of these three categories, make a note that these should be handled with the help of a lawyer who understands probate law.

On Tenants-In-Common

When you have assets owned in a tenants-in-common ownership, they have the chance of going through probate law. Even though these assets are in a joint ownership, they can be a bit messy to deal with. First off, the assets that are held in a tenants-in-common ownership can be rerouted to anyone that you chose.

Nonetheless, there’s a clutch: those assets must go through probate in order to pass onto someone else. They do not, moreover, automatically go to the person who has joint ownership with you unless your will says otherwise. So, on one side, you have control of where the assets go. On the other hand, these assets will end up going through legal proceedings before they transfer.

Check the Trust

Not every asset that’s in a trust can avoid going through probate. There are certain kinds of trusts that help your assets stay out of probate and there are others that do not. Testamentary trusts are one kind of trust that do not shield the assets from probate. In other words, if the trust in question is inside a will, all of the assets listed could potentially be put through the legal process.

Moreover, testamentary trusts have a kind of lock over them, causing both the will and assets to be halted by the probate process. They exist in a kind of limbo, resulting in assets that are technically set to pass to particular individuals being unable to pass until the probate case is dealt with.

Who Has Final Say

Deciding who has final say is another reason why you may want to find someone for helping you with estate planning. If no one has been chosen to be the extractor of the will, the state takes over that role. This is why you should have a lawyer who understands probate law while you’re working on your will.

When it comes to putting items through probate, in the absence of an executioner, the state gets to decide who is the executioner. In affect, the state takes over all wills that don’t have executioners and has the freedom to elect a puppet executioner who doesn’t necessarily hold your values. Moreover, this executioner doesn’t merely open the court case, they also shepherd the probate case till the case is finished. Thankfully, an executioner who’s been decided upon by the will also has this same power, potentially helping the family for the better.

Lawyers Who Know Probate Law

Whether you’re making a will, haven’t composed a will, or you’re getting ready to put assets through probate, you probably need someone who knows the ins and outs of Minnesota probate law. The law firm of Flanders Law Firm LLC is an answer to your problems. Any assets that are going through probate need to be handled carefully.

There are lawyers out there who understand the importance of those assets. Even if the state elects an executioner, you may still want to have some legal assistance.

So, if there exist some assets that might go through probate, ask about getting free initial consultation at 612-424-0398.

Minnesota Probate | Making Distributions to Minor Heirs

Posted on by jlawyer

Minnesota Giving Money to MinorsOur office has often been asked this questions:  how do I give money, from an estate, to a minor?

The answer is that it is complicated.  Like most legal problems.  Let’s look at the solution.

Minor Heirs

Minnesota law tells us that a “minor” is a person under the age of 18 years.  When a minor is to receive or is entitled to a distribution of property from an estate, a court of law may order that the personal representative (executor) of the estate deposit all of the money, or a part of the money, into some kind of account for the benefit of the minor.  When that minor reaches the age of 18 years, typically, the minor will then receive that money.

The court can require deposit into a savings account, savings certificate or other certificate of deposit in a bank, or to invest it in U.S. savings bonds.  Minnesota Statute 524.3-915(b) is the law on this issue.

Currently, the court can also order that up to $2,000.00 in estate property be paid to the minor’s parents, custodian, or other guardian with whom the minor is living, to be used for the benefit of the minor.

Uniform Transfer to Minors Act

If a Will or Trust says that it is allowed, the personal representative, may transfer money to a custodian of a minor.  That custodian is to use the money the minor would otherwise receive, by placing it into a savings or other qualified account on behalf of the minor.  The Act is codified under Minnesota Statute 527.25.

If there is no Will, the custodian can still transfer property belonging to the minor as long as the dictates of Minnesota law are followed.

If a personal representative believes, in good faith, that the transfer is necessary, and it is not prohibited by a Will, Trust, or other testamentary document, the personal representative is allowed to do it.  Minnesota Statute 524.26(c).

Finally, if the transfer is less than $10,000.00, the personal representative does not need to seek approval from the court.

Appointment of a Guardian or Conservator

When we have dealt with transfers to minors in Minnesota probates, we often work with a court-appointed Guardian and/or Conservator.  We have discussed Minnesota Conservator issues in other articles.

In brief, a court can appoint someone the Guardian/Conservator of a minor shortly after a parents death under Minnesota Statute 524.5-201.  This process is often not known by many practicing attorney; however, it is certainly one that should be looked-into.  The benefit of this statutory process, is a court can appoint a Guardian, ex parte, immediately and without court hearing.  The benefits to such an Order are many.  Often, when a parent dies, things can be a financial mess.  Furthermore, the child might need an immediate care-giver.  Therefore, Minnesota law has developed an “expiated” process to resolve the mess.  If you have questions about this process, you should speak with a qualified guardian and/or conservatorship lawyer.

Minnesota Probate Lawyers

Joseph M. Flanders and Flanders Law Firm LLC have years of experience dealing with estate issues and transfer to minors.  The process can be very confusing and people are often grieving for a loved-one who has just died.  Mr. Flanders is a compassionate advocate for people in need and he wants to help them.  For a free initial consultation, please call the firm at 612-424-0398.

How to Be Appointed as Personal Representative | MN Probate

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How to Be Appointed Personal RepresentativeYou just found out another person has been named Personal Representative for your loved one’s probate proceedings. Maybe you wanted to be appointed. Maybe you just don’t trust them. What can you do?

Formal Probate Process

In a Formal Probate process, Minnesota law provides specific rules for how the personal representative is chosen. Priority as personal representative will first be given to the individual (or entity) that the decedent may have named in their will.

This is one more reason why having a valid will in place is so important. If the decedent did not name a personal representative in their will, priority for personal representative is given in the following order: first the surviving spouse, second other individuals that will receive a disbursement from the estate, other heirs of the decedent, or if no other party has come forward, any conservator of the decedent or other creditor.

If in this priority, you are unhappy with the appointment of the personal representative, you can file an objection to the appointment with the Court. In considering your objection, the Court will look at a few valid arguments in considering removal.

These objections include: (1) the estate does not have adequate assets to discharge all of the anticipated creditor claims, (2) an objection to have appointed instead an heir or devise that is expected to receive half or more of the estate, or (3) where there are disputes between heirs or devises of the estate, the Court can require an agreement between the parties for personal representative.

Informal Probate

If the estate is proceeding by informal probate, and you want to dispute the personal representative, your process may be more difficult. You will have to file a petition with the Court stating that your are objecting to the personal representative in the informal proceedings. The Court will then schedule a hearing regarding your objection, and the Court will consider your dispute.

Personal Representative Duties

The personal representative has very specific duties and responsibilities, the failure of which can cause issues in the probate process. The personal representative acts as a fiduciary for the estate, which means that person must act in the interests of the estate first, and act prudently for the estate. This includes collecting and protecting the assets of the estate.

The personal representative must then faithfully follow the terms of the will to distribute the assets, and follow the rules of distribution for the estate. This includes first paying debts and expenses for the estate, and concluding with distribution of the assets remaining of the estate.

Personal Representative Fiduciary Duties

If you believe the personal representative is not or has not faithfully performed on all their duties, you can file such concern with the Court for review. The personal representative may be required to give an accounting to the Court of the estate to prove the process followed by the personal representative.

If you are concerned about the appointment of a personal representative, or have questions about their performance and administration of the estate, contact an attorney today to see what your options are for dispute.

Minnesota Probate Lawyers

An experienced Minnesota probate lawyer can help walk you through the probate process, answering questions along the way. 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.

MN Probate | What Property Does the Surviving Spouse Get?

Posted on by jlawyer

What does the surviving spouse get Minnesota ProbateExempt Property

Minnesota statute 524.2-403 is that law regarding what exempt property the surviving spouse is entitled in a probate.

First, it is important to note that the surviving spouse is entitled to different types of exempt property or “spousal elective share rights”.

Homestead Elective Share Rights

A surviving spouse is entitled to a “life estate” in the deceased’s homestead.  This means that a surviving spouse gets to live in the deceased’s home for the rest of his or her life.  Furthermore, it is possible to “value” a life estate if the surviving spouse wants to sell this interest to a buyer.  This can be very complicated and is often based on actuarial analysis based on the remaining years of the surviving spouse’s life.

Surviving Spouse Elective Share

Minnesota statute 524.2-202, tells us that:

Elective share amount. The surviving spouse of a decedent who dies domiciled in this state has a right of election to take an elective-share amount equal to the value of the elective-share percentage of the augmented estate, determined by the length of time the spouse and the decedent were married to each other, in accordance with the following schedule:

If the decedent and the spouse were married to each other: The elective-share percentage is:
Less than one year Supplemental amount only
One year but less than two years Three percent of the augmented estate
Two years but less than three years Six percent of the augmented estate
Three years but less than four years Nine percent of the augmented estate
Four years but less than five years 12 percent of the augmented estate
Five years but less than six years 15 percent of the augmented estate
Six years but less than seven years 18 percent of the augmented estate
Seven years but less than eight years 21 percent of the augmented estate
Eight years but less than nine years 24 percent of the augmented estate
Nine years but less than ten years 27 percent of the augmented estate
Ten years but less than 11 years 30 percent of the augmented estate
11 years but less than 12 years 34 percent of the augmented estate
12 years but less than 13 years 38 percent of the augmented estate
13 years but less than 14 years 42 percent of the augmented estate
14 years but less than 15 years 46 percent of the augmented estate
15 years or more 50 percent of the augmented estate

Assets in Addition to the Homestead and Family Allowance

The statute tells us that, if there is a surviving spouse, in addition to the homestead and family allowance, the surviving spouse is entitled from the estate to:

(1) property not in excess of $15,000.00 in value in excess of any security interests, household furniture, furnishings, appliances, and personal effects, subject to a n award of sentimental value property under section 525.152;

(2)  one automobile, if any without regard to value.

Rights to Exempt Property

It is also codified that a surviving spouse’s right to exempt property and assets has “priority” over all other claims against the estate.  This mean that the surviving spouse is paid first, prior to any other payment of claims or distributions from the estate.

Minnesota Surviving Spouse Rights Lawyers

Contact the Flanders Law Firm today to talk to a Minnesota probate lawyer.  The firm offers free estate planning consultations to all potential clients. Call (612) 424-0398.

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Minnesota Ancillary Probate

Posted on by jlawyer

Minnesota Ancillary ProbateAncillary Probate

It’s common knowledge that probate can be an unpleasant process.

Many people work hard to avoid it at all costs, creating estate plans built around ensuring that loved ones aren’t stuck dealing with probate court for months or years into the future. But what’s even worse than probate? Ancillary probate. What’s ancillary probate? Keep reading to find out.

First things first, what is “ancillary” probate? Ancillary probate refers to a second probate proceeding involving the same person. Why two probate hearings for only one estate?

Just lucky I guess? No, just the opposite. Ancillary probate occurs because the second probate proceeding takes place in a second state. Ancillary probate takes place when one person’s assets exist in multiple jurisdictions and probate cannot be consolidated.

That means the executor of the estate will need to deal with two probate proceedings, sometimes at the same time, other times they can be dealt with consecutively.

Minnesota Ancillary Probate

Why is ancillary probate necessary? In many cases, it isn’t. If you died while living your whole life in one state, with bank accounts, real estate and physical assets all in the same area, then no ancillary probate will be required.

If, however, your assets, particularly those involving real estate, are spread across the country, then go ahead and brace your loved ones for multiple probate proceedings. If a deceased person owned real estate or other tangible property in a state other than where he or she lived, then a second probate proceeding is required. That’s because real estate is governed by the probate laws of the state that it is located in.

To Probate or Not to Probate

Is ancillary probate a good thing? Absolutely not. Though it may not always be a terrible burden, there is almost certainly no benefit to having to go through the probate process a second time.

What about downsides? One downside is that the estate will likely need to pay for a second probate attorney to handle the case in the second state. Another downside? Additional court costs. Filing fees and other expenses will need to be paid a second time around. What’s another downside? That it can delay the time it takes for beneficiaries to get their share of the inheritance.

Avoiding Ancillary Probate?

What about avenues for avoiding the ancillary probate? One way is to have a good estate planning lawyer consider probate-avoidance strategies. One example would be to put a house in a living trust. Another idea is to use a transfer-on-death deed.

Finally, you could consider adding a co-owner to the piece of property, avoiding probate entirely. If you fail to consider these measures while you’re still around, it’ll be too late to do much about it as your relatives will be stuck probating the real estate.

Minnesota Ancillary Probate Lawyer

An experienced Minnesota estate-planning lawyer can help walk you through the probate process, answering questions along the way. 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.