How to Be Appointed as Personal Representative | MN Probate

Posted on January 7, 2019 by jlawyer

How to Be Appointed Personal Representative You 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.

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

Posted on October 23, 2018 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.

Selling a Home or Real Estate in a Minnesota Probate

Posted on December 8, 2015 by jlawyer

Do you have questions about selling a home or real estate in a Minnesota Probate? Read on for answers.

Selling a Home or Real Estate in a Minnesota Probate

This post will examine a number of issues and problems which may arise from the sale of real estate by a personal representative and their attorney. There are special circumstances surrounding the management, sale, and distribution of real estate in a Minnesota probate. At times, the sale or real estate in a probate can be tricky.

Powers of a Personal Representative to Sell Real Property

To begin, it is important to keep in mind that Minnesota law provides detailed guidance on the sale of a home or other real property in a probate. Specifically, Minnesota statutes provide the personal representative of an estate broad powers over real estate. The applicable statutes are in section 524.3-715. Some of the most important powers include:

the power to gather and invest the real estate
the power to make any necessary repairs to the real estate
the power to subdivide and develop real estate
the power to sells, mortgage, or lease the real estate
the power to execute deeds and other documents of conveyance

Finally, a personal representative can enter a lease which may exceed the anticipated length of the probate estate. Clearly, Minnesota law grants a personal representative extensive powers over Minnesota real estate in a probate estate.

Management of the Real Estate

If a deceased person had an interest in a home or other real estate – be it in Minnesota or elsewhere – a personal representative must think about many issues when the probate begins.

A personal representative, and their attorney, should be concerned about proper liability and/or casualty insurance on the property. Obviously, it is extremely important that a home or other real estate is insured. Often the insurance on a home may lapse at death. Or, there may be contractual obligations which must be taken care of quickly upon death. One simple example is the failure to make premium payments which often results in a lapse of insurance coverage.

Another concern of the estate will be the mortgage on the home or other security agreement. Obviously, if the real estate has a mortgage on it, the personal representative needs to be concerned about how it will be paid so that it does not go into foreclosure. Furthermore, many companies are concerned about vacant properties and what to do about them. Much like a mortgage on a parcel of real property, the personal representative should be concerned about property taxes and other costs like leases .

If you or someone you know has questions about selling a home or real estate in a Minnesota probate, please contact Joseph M. Flanders at Flanders Law Firm LLC.

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.

Starting an Informal Probate in Minnesota

Posted on December 7, 2015 by jlawyer

Do you have questions about starting an informal probate in Minnesota? Read on.

An informal probate proceeding starts when an “application” is filed with the appropriate probate registrar in the county of venue. What does that mean?

In essence, the proper venue is a the place where the deceased person (decedent) lived permanently at the time of his or her death. There is a question of interpretation of the term “permanent”. If you have questions, a MN probate lawyer should be consulted.

Starting an Informal Probate in Minnesota

The application must contain certain information. The required information is set forth in Minnesota Statutes, section 524.3-+301, the MN probate court rules, and the local county level rules.

The probate application must be accurate in its details. This is because the information in the application is the basis for all subsequent finding made by the registrar. Once the application is signed by the personal representative of the estate, the attorney and the personal representative can set up a meeting with the county registrar. Whether a meeting is required is up to the county and registrar. Check your local rules to see what is required in your county. Sometimes the hearing may only be a telephone call with the registrar.

Items which need to be in the Probate Application

Some of the major items that must be in the probate application include:

The decedent’s full legal name, any prior names
The decedent’s date of birth and date of death
The personal information of the personal representative
An explanation of why venue is proper in that particular county
An explanation of whether a Will existed or whether the decedent died intestate
A list of the “interested parties” or the heirs and creditors of the estate
Whether the will requires a bond
Whether the will requires a formal or informal personal representative
Whether there are any complications with the heirs
Whether there are any complications with the Will
An identification of the property and debts of the estate
Other information

There is no right or wrong answer to exactly what has to be in a probate application in Minnesota. However, a probate attorney should be consulted to make sure all the requirements are met. Every case is different and different laws apply to different facts.

Appearances of Counsel

Appearance requirements also vary from county to county for informal probates. In many counties, the application may be filed by mail and no appearance is necessary. In other counties, a formal attorney appearance may be required. Sometimes a mail filing is sufficient; however, many counties are now requiring e-filing.

If you have questions about your county, contacting the probate registrar’s office is a good idea. The probate registrar’s office may be able to provide the local probate rules to you.

Meeting with the Probate Registrar

After the application is filed and accepted, a meeting with the probate registrar should be scheduled. The attorney and personal representative should bring the application and the will, as well as any other supporting documentation. The attorney should also be sure to bring the personal representative’s acceptance of appointment and oath. This is an important document because it provides the basis for the personal representative’s fiduciary duty to the rest of the heirs.

Once the meeting with the probate registrar is over, the registrar will either approve the application or ask the estate to re-file as a formal administration. Whether a formal administration is required is a subject of another post. As always, for questions on starting an informal probate in Minnesota, an attorney should be consulted.

Free Initial Consultations

Questions about starting am informal probate in Minnesota? Contact the Flanders Law Firm today. The firm offers free consultations to all potential clients. Call (612) 424-0398.

Starting a Minnesota Probate Estate | MN Probate Law

Posted on December 3, 2015 by jlawyer

Starting a Minnesota probate estate usually means filing a “Petition” or “Application” with the district court located in the county of the deceased person’s (decedent’s) last known address. Attorneys call this “venue”.

Whether a Probate Petition or Application should be used depends on the nature of the estate. For question on this issue, a probate lawyer should be consulted.

Minnesota Probate | Choosing Informal or Formal

Basically, if problems or issues may arise from the estate administration, a formal probate is usually the best option. This means that the personal representative’s actions will always be approved by the court. This protects the heirs because the court is supervising the personal representative. This protects the personal representative because the court will approve their decisions without fighting or back-biting from angry heirs or siblings.

Below are common issues which the law firm has seen created by heirs in starting a Minnesota probate estate:

Distributions will be made to a minor heir or devisee (person who receives money from the estate)
There may be confusion about the identity of heirs
The whereabouts of heirs is unknown
There is a possible issue with the state due to lack of heirs
There may be an inaccurate description of the heirs.
There may be illegitimate children of the decedent
The requirements of the Will cannot be satisfied and the personal representative needs court approval
There are existing disputes among the heirs and the personal representative
An heir or devisee caused the decedent’s death

Starting a Minnesota Probate Estate | Problems with the Will

Furthermore, common issues that arise which create the need for a starting a formal estate include:

A problem with the Will
The original Will is lost
There are handwritten changes to the Will
A separate writing is listed in the Will but cannot be found
The court cannot understand the Will
There is a need for a will construction due to an confusion or mistake in the Will
The Will does not contain a residue clause
The Will fails to nominate a personal representative

Real Estate in the Initial Probate

If the probate proceeding includes real estate, the real estate (home or otherwise) will need to be included. This means finding the legal description and deed containing the last known ownership interest on the real property. This can be found at the county recorders office in the county where the decedent lived or where the real estate is located.

Also, keep in mind that if the real estate will not be sold during the probate, a personal representative will likely want to proceed in a formal administration. This is because many county recorders offices will not recognize a probate registrar’s determination of the heirs, which may cause the title to be unmarketable when it is later transferred to another party. If, however, the intent is to sell the property during the administration, or if the will includes a specific person who will get the home or real estate, in most cases, a personal representative can proceed in an informal probate.

In all cases, if you have questions about how to deal with real estate in a probate, a lawyer must be consulted. Failure to properly title and transfer real estate is one of the most common reasons for personal representative liability for negligence in handling the estate.

Insolvent Estates in a MN Probate

An insolvent estate is one which has more debt than assets. In other words, the deceased person owed more money to people than they actually have in their estate.

Having an insolvent estate is one prime reason to start a formal proceeding. This means that the personal representative and the lawyer will be responsible for, essentially, cleaning up the estate, paying bills, and then filing a closing statement with the court. It is easy to understand how people or companies might be made when they do not get paid what they feel they are owed. However, this is often the job of the probate estate. The personal representative and the attorney should be very careful in this situation. Finally, again, court supervision of the probate estate is ideal.

Free Initial Consultations

Questions about starting a Minnesota Probate? Contact the Flanders Law Firm today. The firm offers free consultations to all potential clients. Call (612) 424-0398.

Minnesota Probate | What to bring to initial meeting with a lawyer?

Posted on June 24, 2015 by jlawyer

Client are often concerned about what exactly they need to bring to an initial meeting with a Minnesota probate attorney.

This post will hopefully provide some answers to the above question. While the information in this post is for information purposes only, it should give you a good idea of what a probate lawyer would be looking for.

DOCUMENTS FOR THE CLIENT TO BRING TO THE MEETING

Original copies of the will and all codicils
A list of names and addresses of heirs and will beneficiaries
The death certificate (if available)
Real estate tax statements and title papers for real estate (registered or abstract?)
All available information about assets and their values
The last income tax return of decedent
A list of questions the client may have

Items to Bring to Initial Meeting with the Probate Lawyer

Questions for heirs:

Did the decedent leave a will?
If so, where is the original? If the original is not available, is a copy available?
Who is nominated in the will as personal representative?
Is the nominated person willing and able to serve?
If there is no will, determine the same facts as in the determination of heirs (below):
Was the decedent survived by a spouse?
If not, did the decedent have any children who survived the decedent?
Is there a surviving spouse?
Did the decedent ever have, or adopt, any children?
If so, what are the names, ages, and addresses of the children, and issue of a deceased child, who survived
the decedent by 120 hours?
If there are no living issue or spouse of the decedent, the heirs are determined in the order set forth in
Minnesota Statutes section 524.2-103 – parents, their descendants, grandparents and their descendants,
and then next of kin.

Minnesota Probate Assets & Jurisdiction:

In what state was the decedent domiciled?
In what state(s) did the decedent own property that was not disposed of by a will substitute (such as joint tenancy or a living trust)?
Is the total value of the estate, including life insurance and retirement plans, likely to exceed $1,000,000?
Did the decedent own any real estate in Minnesota, or elsewhere?
What was the decedent’s occupation?
What property is registered in the name of the decedent? (If the decedent was survived by a spouse, was
the title in both names?)
Bank accounts
Automobiles
Securities
Life insurance
Retirement plans (including IRAs and annuities)
Businesses
Other valuable items

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 | Do you need a lawyer for a Minnesota Probate?

Posted on October 23, 2014 by jlawyer

Do you need a lawyer to help you for your estate administration of “probate” case?

The answer: it depends. Also, as an aside, click on the link for more information on what “probate” means.

The question on whether or not to hire an attorney is always a difficult one. I am asked this question frequently by both current and potential clients. My answer is usually the same: it always helps to have an attorney and you’re going to do way better with one that without one. That being said my statement can be viewed as self-serving.

What are some of the benefits of hiring a probate attorney?

Experience in the field of probate law is the number one reason to hire an attorney. The probate or “estate administration” process is extremely complex. That cannot be overstated. When I first began practicing law as a new law school graduate, the ins-and-outs of what I was supposed to know and understand to competently administer an estate was completely foreign to me – and I had a background training in the law. The point here is that lawyers learn on the job, just like everyone else, and it took me, personally, a number of years to be good at that job. Is it reasonable to think that someone without a law degree and experience can do it? I think the answer is clear.

Below are some examples of the different types of probate proceedings in Minnesota. Lawyers are not even aware of these proceedings – it is necessary to refer this kind of a work to an attorney who understands what he is doing.

Some of the different kinds of probate proceedings in Minnesota include:

informal estates
formal estates
small estates
supervised estate
unsupervised estates.

Furthermore, the estate may be modified from an informal, unsupervised probate to our formal, supervise probate depending on the complexity of the case as it proceeds over many months.

What are some of the other questions to ask a probate attorney?

Essentially, as I described in earlier post on this topic, Minnesota probate attorneys are earnestly looking for personal identifying information of the heirs, personal representative, the deceased person. Next, the probate attorney will look for the assets and debts of the estate.

The attorney needs to know many different questions to include in a probate petition which notifies the court and the judge of how you proceed. The attorney will be making a determination as mind as to what he would recommend for obvious date would proceed which is something completely foreign to almost every client or person I’ve ever met with. After all, why would this person real to make a rational decision based on experience when they have done.

Are there times when a probate attorney may not be necessary?

The only time that attorney should not be consulted in state is when it may be transferred bye affidavit. In Minnesota, if your estate is worth under $50,000 in assets, the estate will likely not need to be probated but, instead, be transferred by a small estate affidavit. I have also discussed this and numerous articles in the past which can be located at the link provided above. The attorney like we should still be consulted on how to draft the small estate affidavit and move forward with that affidavit.

In all other instances, with assets over $50,000 in the state of Minnesota, a probate attorney should be consulted and hired. This is a difficult pill to swallow for many people that have never been involved with the process but it is certainly the correct advice – self-serving or not.

Free Initial Consultations

Contact the Flanders Law Firm today. The firm employs Dakota County Minnesota probate attorneys. The firm offers free consultations to all potential clients. Call (612) 424-0398.