Personal Representative Liability | MN Probate Law

Posted on June 27, 2019 by jlawyer

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

Posted on June 19, 2019 by jlawyer

What 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 May 14, 2019 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.

When is a probate required in Minnesota?

Posted on January 3, 2018 by jlawyer

When 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.

Contesting a Power of Attorney in Minnesota

Posted on September 7, 2017 by jlawyer

Contesting a Power of Attorney

Powers of attorney are incredibly useful documents in that they hand over important rights to allow another person to manage certain aspects of your life if and when you are unable to do so on your own.

Depending on how broad the power of attorney was written, the agent (the person on the receiving end of the power of attorney) will be able to make a number of crucial decisions on behalf of the principal (the person giving away the power). Essentially, the agent will be able to act like he or she is the principal, standing in the principal’s shoes.

Control of a Person’s Assets

What does this look like in practice? For broad powers of attorney, it can mean that the agent has the ability to control all of a person’s assets, financial accounts, financial decisions and even healthcare decisions. In these cases, the principal is truly trusting his or her life in the agent’s hands.

The agent is required to act in the principal’s best interest, but as I’m sure you can imagine, that does not always go so smoothly. In some cases, the agent may be abusing his or her powers or acting in ways that run counter to the wishes of the principal. If the principal is incapacitated and isn’t able to dispute the power of attorney on their own, what can be done? Thankfully, there are options, including a challenge by a loved one.

Power of Attorney Law

First things first, if you’re considering challenging the appointment of a power of attorney and you aren’t the person that made the appointment, you will need to gather evidence demonstrating why the principal is unable to challenge the appointment themselves. If the principal is fully aware of what’s going on and chooses to do nothing, either because he or she agrees or is simply willing to go along with the decisions of the designated agent, then it is unlikely a court will intervene.

It will be important to show that the principal is in some way incapacitated, such as being in a coma, suffering from dementia or other serious health problems. If it can be shown that the principal is unable to raise a dispute, then your chance of mounting a successful challenge increases.

Another thing to pay attention to if you’re considering challenging the appointment of a power of attorney is to see whether the proper legal formalities were followed. Was the power of attorney executed in the way required by state law? Did it include the right language? Was it witnessed by the proper number of people? Any of these flaws could be enough to attack a power of attorney designation and should thus be carefully scrutinized.

If there aren’t any formal flaws, it’s now time to turn your attention to broader abuse by the agent. In these cases, the appointment is valid, but will need to be revoked by a court. To launch a successful challenge, you’ll need to be prepared to show that the agent is abusing the authority he or she has been entrusted with. Examples of serious abuse include theft of the principal’s property, mismanagement of the principal’s assets and a neglect or disinterest in the principal’s needs. You’ll want to do your best to avoid this becoming a he-said, she-said battle and stick to objective facts, as this will improve your odds of raising a successful claim.

Challenging A Power of Attorney

Challenging a power of attorney can be quite difficult. After all, powers of attorneys are meant to withstand attack and give some comfort to the principal that the person they designate will remain the person in charge no matter what. To overcome this presumption that the principal’s selection should be upheld you will need to compile strong evidence showing that the agent has lost sight of his or her duty and that a judge should feel compelled to act.

Minnesota Power of Attorney Lawyers

An experienced Minnesota power of attorney 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.

What happens when someone dies without a Will in Minnesota?

Posted on January 5, 2017 by jlawyer

Intestate Estates

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

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

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

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

Intestate Succession for Deceased Person’s without a surviving spouse

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

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

The deceased person had no children

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

The deceased person’s remaining assets will be distributed:

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

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

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

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

Free Initial Consultations

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