Author: jlawyer

Searching For Lost Assets: Life Insurance and Annuities | MN Probate Law

Posted on by jlawyer

When a family member dies without an estate plan in place, the family may be left scrambling to determine what assets the family member even owned during their life.

With no estate plan, the family may not even know if they had any life insurance policies. If you find yourself searching for any life insurance policies, the Minnesota Commerce Department offers a free online service that Minnesota residents can use to assist them in locating a lost life insurance policy or annuity contract belonging to a deceased family member.

Minnesota Life Insurance Locator

The Life Insurance Policy Locator was created by the National Association of Insurance Commissioners (NAIC) in 2016 to assist people in locating benefits. The service allows individuals who believe they may be beneficiaries, executors or legal representatives of a deceased person to perform a confidential search for life insurance policies and annuities.

What will you need:

A certified death certificate for the deceased is the best resource to complete the request. This may be attained through the funeral home that conducted the burial or cremation of the deceased individual or by contacting the vital statistics office in the deceased’s county.

You may also review the deceased individuals’ bank statements and check safety deposit boxes for personal information, which may contain information about a life insurance policy and enable you to directly contact the insurance company without utilizing the Life Insurance Policy Locator.

So how do we get it:

To begin your search, you can follow this link: https://eapps.naic.org/life-policy-locator/#/welcome. You will need to provide as much information as possible to guarantee the most accurate results. Only one request is required for your family member. The search will encompass all participating life insurance and annuity companies, and it doesn’t matter where the family member may have lived before, or when they purchased the policy. The only note to remember is that not all life insurance companies participate in this process.

What happens if they find something:

The NAIC will send an e-mail to the person who submitted the inquiry, including the request details and will also notify participating life insurance and annuity companies of the request, asking the companies to determine whether they have an individual life insurance policy or annuity contract in the name of the deceased family member.

The insurance company will directly contact the beneficiaries or their authorized representatives when a match is discovered. A response will only be given if relevant information is discovered and could take up to 90 business days. You will not receive a response relevant information is not discovered. If you still have questions you can contact the Minnesota Department of Commerce or call our office.

Minnesota Probate Lawyers

An experienced Minnesota life insurance 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.


Initial Documents to Start an Informal Probate

Posted on by jlawyer
Starting an Informal Probate

Starting and Informal Probate?

Rule number one is that you need to draft documents that will assist the probate court in its determination of whether to grant the contents of those documents.  For example, the court wants to know exactly what you are requesting and why you are requesting it. 

The Minnesota probate lawyers at the firm have had many interactions with the probate court clerks throughout the years.  Rule number one?  Be nice to the clerks.  Give them what they ask for.  Make sure the legal documents are concise and clear.

What needs to be in a Petition for an Informal Probate?

Foremost, if you are not an attorney, you need to read Minnesota Statutes 524.3-301.  This law contains all of the information that needs to be in the petition.  If you do not understand the statute, you should consult with a lawyer who does.

The statute is clear that there a number of required things that must be in an informal probate petition:

  1.  A case caption
  2. The Petitioner’s name and address
  3. Why the Petitioner is filing the Petition
  4. The name and address of the deceased person
  5. The deceased’s persons birth-date and birthplace.
  6. The deceased person’s date and place of death
  7. Where the decedent lived, permanently, at the time of his/her death
  8. The names and addresses of the heirs, devisees, and interested persons
  9. Any intentionally omitted heirs
  10. The Statement of Familial Relationship or interest of these people to the deceased
  11. The age of each person
  12. Any information about surviving heirs or spouses
  13. A listing of the deceased person’s assets and debts
  14. A statement that there is no other “acting” personal representative
  15. A statement that the petitioner is not aware of any demands for notice from other third-parties or creditors
  16. Whether the deceased person had a Will or not
  17. A statement of what “priority” the petition has under Minnesota probate law
  18. Whether a bond should be posted
  19. Whether the estate should be supervised or unsupervised
  20. Signatures of the Petitioner(s)

Exhaustive enough for you?  Again, if you don’t understand the above – or perhaps don’t know all the legal terms above – you should consult with a probate attorney.

Assuming I fill-out the Petition appropriately what happens next?

Once the proper petition has been drafted with the proper information, the Petitioner (who is also the proposed personal representative) will need to file the documents with the court.  Lawyers are required to use the court “e-filing” system, but non-lawyers will need to go directly to the county courthouse.

There are a number of other documents which will be required with the initial probate petition.  These documents can include:

  1. A proposed Order
  2. A notarized Acceptance of Appointment and Oath of the personal representative
  3. Proposed Letters Testamentary or Letters of General Administration
  4. A Notice of Hearing / Notice to Creditors Document
  5. A Certificate of Representation if represented by a lawyer
  6. A Confidential Information Form, Form 11.1
  7. A payment of state-mandated court-filing fees.

What happens after the Probate Petition is Filed?

Once the court filing fees are paid and the proper legal documents are filed with the proper court, the court will give the Petitioner a new case number and a new case will have been started in the court system.

Each county will have different rules about how the probate process moves-forward.  A hearing date will likely be set.  The Petitioner will need to be present at the hearing to give testimony about the contents of the Petition to a judge.  It is important to note that the personal representative has no power to act on behalf of the estate until appointed by the court.  Yes, this can cause significant delay as bills need to be paid, etc.  For questions on how to deal with this problem, consult with a lawyer.

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.

Contesting a Will in Minnesota | Common Will Contest Do’s and Dont’s

Posted on by jlawyer

Contesting a Will in MinnesotaContesting a Will in Minnesota

If you have written a will or are thinking about doing so, you likely want to be sure that it’s done well. After all, the goal of a will is to ensure that your wishes are honored when you’re no longer around.

If a will is found to be invalid, it could mean that your wishes are altered or ignored entirely, throwing your carefully crafted plans into doubt. To avoid having your will invalidated, keep the following issues in mind.

Coercion

Wills can be invalidated if it is found that the person who created the will (known as the testator) was coerced or created the will under duress. This coercion can take many forms, but if the end result is that the testator felt forced into creating the will or drafting it in a certain way, it is likely to be found invalid.

Fraud

Fraud is a pretty clear reason for a will to be found invalid. If a will has been tampered with or altered in some way, then a court will likely rule that it has been invalidated. It’s for this reason that it is important to ensure that any changes made to the will are executed properly.

Lack of capacity

A common reason why wills are challenged has to do with the testator’s mental capacity. If the person creating the will is not of a sound mind, then any document he or she drafts or signs will not be found valid. Judges will scrutinize claims concerning lack of capacity as they want to ensure that those with diminished capacity are not preyed upon by greedy relatives.

Improper Execution

A final reason why a will may be found invalid is if it was improperly executed. In Minnesota, a will must be in writing, it must be signed by the testator or by someone else in the testator’s presence and at the testator’s direction, and it must be signed by at least two witnesses within a reasonable time of witnessing the testator’s signing. If the will was executed any other way, you run the risk of a legal challenge.

What if you want to prevent a challenge before it starts?

If you’re in the process of drafting a will and want to do everything possible to avoid loved ones contesting the will down the road, what should you do? First things first, do everything you can to avoid invalidating the will. Assuming you’ve checked those boxes, another thing to consider is including a no-contest clause in the will. What does this do? Though it does not guarantee that no one will challenge the will, it does work to seriously disencourage heirs from doing so. The clause works such that anyone who has challenged a will is automatically disinherited. It means that fighting to get more may instead lead to getting nothing at all.

Minnesota Will Contest 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.

Posting a Bond in a Minnesota Probate

Posted on by jlawyer

Bonds and MN ProbatePosting a Bond in a Minnesota Probate

In some estate the law firm has worked on, the personal representative has been required to post a bond.  This post explains (1) what a probate bond is and (2) why one might be required.

A Probate Bond

In some cases, the court may require the the personal representative (executor) of the estate post a bond equal to the amount of the estate assets.  Therefore, if the estate is worth $500,000.00, then the court could require a $500,000.00 bond.  Why?  Because the court wants to ensure that the personal representative does the right thing, follows the law, and doesn’t lose or worse, steal the money from the estate.

A bond is surety posted by the personal representative against the estate assets.  The personal representative will literally have to post collateral against the bond in case they make a mistake in the estate.  This is a bid deal and something people should take very seriously.

Why Might a Probate Bond be Required?

In formal, supervised administration in Minnesota, a bond is almost always required.  However, most estate are not formal and supervised by the court.  In fact, I would guess that only around 10% of estates proceed in this fashion.

Therefore, the question becomes:  why is a bond required in this minority of estates?  One reason for a bond is that there may be family members or other parties that are “fighting” and the personal representative must post a bond to preserve assets.  Many times, when heirs and other parties are fighting a professional personal representative will be appointed by the court.  A professional must always be bonded and the estate will always be a formal, supervised estate.

Another instance when the law firm has seen bonds required is when the estate is insolvent.  For instance, the estate may have a home, but there are debts worth more than the home.  In essence, the court may require a bond so that the creditors of the estate are protected.  It is easy to see why a party might not want to sell a home or other assets just to be the deceased person’s bills.  After all, what fun is that?  Yet, the court might require a bond in this case.

Finally, the last common instance when a bond is required is when the deceased person gave money to people under the age of 18.  In this case, the court will likely want to ensure that the children receive the money they are owed.  Courts treat children very carefully because they are not legally able to represent themselves.

Minnesota Bond Lawyers

The law firm has attorneys with years of experience dealing with probates of all kinds.  If you have questions about the requirements of a bond or other probate issues, contact the law firm today at 612-424-0398.

When is a probate required in Minnesota?

Posted on by jlawyer

When is probate required in MinnesotaWhen is Probate Required?

Probate is required when a deceased person owned assets in his/her name alone at the time of their death, and those assets were worth more than $75,000.

Furthermore, when there is real estate (a home) that belonged to the deceased person in his/her name alone, a probate will always be required – even if the value of the property could arguably be less than $75,000. This is because the title to the property will not transfer to a new buyer without court supervision of the probate process.

The next question you might have is, what is probate?

The probate process is, generally, the legal process by which a personal representative (executor) is appointed and that person is responsible to do a number of tasks on behalf of the estate:

  • – Collect, inventory, appraise, and distribute assets pursuant to a Will or by the laws of intestacy;
  • – Pay the valid, non-exempt, debts of the deceased;
  • – Protection of the estate assets;
  • – Finally, making distributions and accounting to the court.

The above process is not all inclusive. Every deceased person’s estate is different. A probate attorney should always be consulted with.

What if there was a Will?

A common misconception is that a probate is not necessary if a person had a Will. In many cases, this is simply not true. If someone dies and they have a Will, the determining factor are assets worth more than $75,000 in the deceased’s name alone. We discussed this above. In essence, a Will is only an instruction by the deceased as to how they want their assets passed to their loved ones or charitable institutions. It does not change the legal assets, debt, and real property issues discussed above.

Informal versus Formal Probate

The differences between an informal probate and a formal probate are, mainly, that an informal probate often does not have court supervision. The formal probate does.

What are some circumstances when a informal probate will not be allowed by a court:

  • – the estate has more debts than assets (insolvent)
  • – there are unknown heirs or hard-to-locate heirs
  • – the Original Will cannot be found
  • – there is a disagreement among the heirs or devisess;
  • – if there are minor heirs
  • – if there is a medical assistance claim by the State of Minnesota.

There are other reasons why an informal administration may not be allowed. For further questions on that issue, you should consult with an experienced probate lawyer.

Minnesota Probate Attorneys

For more information about when a probate is required, please contact Joseph M. Flanders at Flanders Law Firm LLC at 612-424-0398.

Collecting a Debt in a Minnesota Probate | What Happens If Someone Who Owes You Money Passes Away?

Posted on by jlawyer

Collecting a Debt in a Minnesota ProbateIf someone passes away while owing others money, it’s an unfortunate circumstance of everyone involved. The people owed the money may fear that they won’t see the return of the money they loaned out.

The loved ones of the deceased will be grieving and the last thing they want to worry about is a bill. Though it’s a difficult situation, the reality is that people pass away every day while owing money to others and the law has thankfully adopted a process for dealing with such claims.

Will you ever get the money back?

Though it would be nice to give a resounding “Yes!”, the honest answer is more complicated. Though you might get every dime that you’re owed back, you might also get nothing. The reality is that it depends entirely on the financial situation of the person who passed away. If he or she owed lots of people lots of money and had little in the way of assets, it is possible you will not ever get the money you are owed back. If, on the other hand, the person owned property, like a house and cars, and had a small amount of debt, the estate of the person will likely have the necessary funds to repay the money that is owed.

Are family members responsible for a loved one’s debts?

Absolutely not. This is an important point that can cause some confusion. While you may be owed the money by the estate of the deceased, you are not owed the money by his or her relatives. Unless those relatives were signatories to the loan, they have no legal obligation to use their money to repay any debts owed by the estate of a loved one. The money is owed exclusively by the estate and if there isn’t enough money in the estate to go around, no other parties, including the executor, will be liable for paying the remainder.

Who has the responsibility of paying money owed?

Though the estate owed the money, the estate’s actions will need to be carried out by a person. So who is the person that pays the bills? Debts of an estate are managed by the person designated in the deceased’s will. This person, the executor of the estate, is often a spouse, a child or a close family friend. This person is tasked with performing an accounting of the estate, to see how much is owed and then distributing assets to pay any debts. Anything that remains, will be given to the heirs.

How much time do you have to collect money owed?

In Minnesota, the answer is not very long. Section 524.3-803 of Minnesota Statutes discusses the time allotted for creditors to file notice of their claims against an estate. The law says that in cases where proper notice to creditors is published, the creditors have no more than four months after the date of publication to bring their claims. In cases where notice was not filed, creditors have at most one year after the decedent’s death to raise their claims. The goal is to wrap the process up quickly, meaning if you are owed money you need to move fast to stake your claim.

Collecting a Debt in a Minnesota Probate

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.

Do I have to probate a Will in Minnesota? | Is probate necessary?

Posted on by jlawyer

Do I have to Probate a Will in Minnesota?Minnesota Probate Law | Is probate necessary?

We talk a lot about strategies that can be employed to avoid or minimize the hassle of probate. After all, ensuring that a family spends as little time and money as possible in probate court is better for everyone involved. Though those who spend time and effort planning can avoid probate, what about those who haven’t devoted the same kind of energy to the issue? In an ordinary case of a spouse dying and leaving everything to his or her partner, what happens then? Do I have to probate a Will in Minnesota?  To find out, keep reading.

Let’s set the scene. An ordinary couple, both older. They have some bank accounts, a house, cars and some personal property. They aren’t wealthy, but they aren’t destitute either. They spent some energy planning – they both had wills written – but that was years ago and they weren’t terribly detailed, simply leaving everything to the other spouse. If the wife passes away, from a probate perspective, what happens next?

Do I have to probate a Will in Minnesota?

First, does a will mean that probate can be avoided? Unfortunately not. Though the will can be enormously helpful in speeding up the probate process, it does not prevent it from happening. The court will likely want to validate the will, ensure that it is legally enforceable and that it was properly executed. Though it is a crucial estate planning tool, it isn’t powerful enough, on it’s own, to escape the need for probate.

Next, let’s talk about the goal of probate. Probate is designed to ensure that your financial obligations are dealt with appropriately and your remaining assets are distributed to heirs in accordance with your desires. So does that mean that probate must happen in each and every case? No it does not. Probate is only required in those instances where ownership of an asset needs to change.

In our example, what happens next depends on what the wife owned and/or owed. If she has a number of debts, probate will almost definitely be required to ensure that the woman’s estate pays creditors as required. The same is true if the woman has a number of assets in her name. Even if her will leaves everything to her husband, the probate process can still be required to effectuate these transfers.

Debts and Assets

What if, instead of having debts and assets, the woman has virtually nothing in her name? Let’s pretend that the couple was married for decades, but the woman was content to let her husband manage financial matters. He put the cars in his name and the banks accounts too. In that case, probate may not be required as there is no property that must change ownership. The items are already in the husband’s name and thus there is no requirement that he begin the probate process.

Minnesota Real Estate

One potential snag in the plan of probate avoidance is the marital residence. If, by chance, the husband purchased it prior to marriage and it is thus separate property, there may still be no problem. If, on the other hand, the two bought the house during the course of their marriage using joint funds, then it is possible his wife has formed an ownership interest in the property, especially if the couple lives in a community property state. In that case, probate may be required if the husband ever wants to sell or refinance the house.

Minnesota Small Estate and Probate

Another bit of good news is that in Minnesota, there is a small estates limit written into the law making it easier and quicker for those without many assets to move through the probate process. Rather than submit to a formal probate court hearing, you can simply fill out a form and wait a certain amount of time before distributing assets. The goal is to speed things along and prevent wasting money on court fees. The law says that the affidavit can be used if the probate estate is less than $75,000.

Minnesota Probate Attorneys & Lawyers

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.