Posting a Bond in a Minnesota Probate

Posted on March 6, 2018 by jlawyer

Bonds and MN 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.

How to Avoid Probate | The Benefits of Bypassing Probate Through The Small Estate Exception

Posted on August 31, 2017 by jlawyer

The Benefits of Bypassing Probate Through The Small Estate Exception

We’ve all heard that probate is a process best avoided, if possible. It can take time, costs money and involves prolonged contact with a court, all things most people would prefer to steer clear of. Probate can be avoided with the help of an experienced Minnesota estate-planning attorney.

The good news is that in other cases probate can also be avoided (or expedited) just because of the size of the estate.

Why would the size of the estate matter? The reason that certain small estates are exempted from certain aspects of the probate process is to avoid wasting precious resources. If a person only leaves behind a few thousand dollars, it would be unjust to spend a substantial percentage of that going through probate trying to figure out whom to disburse the money to.

Far better to let the heirs apply for an expedited process that allows them to walk away with a larger amount in their pockets and less in the probate court’s coffers.

Minnesota Small Estate Affidavit process

If inheritors follow certain steps, Minnesota law allows them to skip the probate process altogether, provided, of course, the estate clears certain financial hurdles. Under the simple affidavit process, all an inheritor has to do is prepare a short affidavit that explains that he or she is entitled to a certain asset.

The document must be signed under oath and can then be presented to a bank or other financial institution holding an asset. The bank then gets the affidavit and a copy of the person’s death certificate and will then release the asset. This simple affidavit process is possible in Minnesota only if the entire estate does not exceed $75,000. The only other rule to keep in mind is that you must wait 30 days after the person’s death to use the affidavit.

Simplified probate

Small estates can also use what is known as a simplified probate process. This less burdensome approach requires an executor fill out a written request from the local probate court asking to use the simplified probate procedure. The court will then decide whether to grant the executor the authority to distribute assets without going through all the steps usually associated with probate. The simplified process can be used in Minnesota only after the court ensures that no property is subject to claims by creditors.

Are there any downsides? So far it sounds like a universally appealing option if it’s available to you. If you are set to inherit a small estate then anything that helps reduce the time and expense associated with securing that inheritance is a great thing.

One word of warning, though it can be good to avoid the cost of paying a lawyer, if you have any concerns about the estate or the steps involved in finalizing the process, it’s better to take a moment and seek an experienced opinion rather than potentially make a mess that could cost even more money to fix down the road. Even small estates can include complicated questions that would benefit from the wisdom of a skilled estate-planning attorney.

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 | MN Probate Law

Posted on March 30, 2017 by jlawyer

For those who spend the time and energy drafting wills and estate plans, the goal is obviously to ensure that your wishes are respected once you’re gone. Going to this trouble is supposed to ensure that things go smoothly when it’s time to distribute your assets to heirs. Though this is true most of the time, there are circumstances in which things don’t go perfectly to plan. In cases where fraud may have happened or an heir has especially hurt feelings, it’s possible that the will could be challenged in probate court. To find out more about how contesting a will works, keep reading.

Why?

The good news, at least for those drafting the will, is that wills are official legal documents and are thus not easily ignored. Simply disliking the results of a will or feeling you didn’t get a fair shake isn’t enough to justify a valid challenge to a will. Wills can be contested for a variety of valid reasons and these include things like fraud, duress, undue influence, mental incapacity, improper witnessing and the existence of ambiguous language. A will contest requires the existence of a valid legal question about the document itself or the process by which it was created, sour grapes aren’t sufficient.

Who?

Can anyone challenge a will? Thankfully, no. Probate law says that wills can only be challenged by those with proper standing, meaning heirs and other beneficiaries. A person needs to be mentioned in the current will or some previous version of the will. Interestingly, someone mentioned in a will for the purpose of being disinherited is enough to give that person the standing to raise a challenge. These rules mean that those who can bring a challenge are almost always spouses or children of the person who crafted the will.

When?

How long does an heir have to contest a will? The answer varies depending on your location, as each state puts a different spin on its probate rules. In Minnesota, Section 524.3-109 of the Probate Code says that a person has one year after the date of death of file challenges.

Contesting A Will In Minnesota | How?

If it turns out that you have standing to contest the will and have legitimate grounds to do so, the next step is to file a petition with the probate court in which the will has been entered into, objecting to its validity. All heirs and beneficiaries of the estate will need to be informed of the challenge, giving them an opportunity to intervene should they choose to do so. After everyone is on notice, it’ll be time to gather information from other parties, put forward your arguments and lay out your justifications for invalidity. If, after that, you aren’t able to negotiate a mutually agreeable settlement to the dispute, the matter will need to be decided by a probate judge.

Though contesting a will is clearly possible, it’s important to understand that doing so isn’t easy or fast. Any challenge will need to be based on valid grounds, not just displeasure with the disposition of an estate. Even then, victory is not assured and you’ll likely spend a good deal of time and money fighting it out. Just something to keep in mind before heading off down the road of a will contest.

Minnesota Probate Lawyers

An experienced Minnesota estate planning lawyer can help walk you through the complicated process of establishing a workable estate plan. 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.
Source: “What Are the Grounds for Contesting a Will?,” by Julie Garber, published at TheBalance.com.

Minnesota Probate | How do I get letters testamentary?

Posted on December 9, 2015 by jlawyer

Many clients call my office with similar questions. One of the main questions I get is: how do I get letters testamentary in Minnesota? I will try my best to answer that question in this post.

How do I get letters testamentary in a Minnesota Probate?

There are many issues that should be analyzed prior to starting a Minnesota probate. I have recently written several posts on the topic of starting a Minnesota probate. Please read them and then continue on with this post.

In this instance, I will assume that either a meeting with the probate registrar has happened or a hearing with a district court has happened. In order to receive letters testamentary from the court, certain court pleadings (documents) must be filed with the court.

Notice

Notice is one of the hallmarks of the law. Notice is often referred to as “due process”. If you don’t know what that means, contact a probate lawyer. Basically, each personal representative and their lawyer must give notice to “interested parties”. Interested parties include heirs of the estate and creditors of the estate.

In an informal probate, a Notice for Informal Probate of Will (assuming there was a Will) and a Notice to Creditors needs to be approved by the court. From there, two things should happen: (1) a copy of that court-approved notice should be filed in a newspaper of general circulation in the county where the deceased person resided, and (2) the personal representative must mail a copy of the notice or a clipping from the newspaper to all interested persons.

Who should the notice be provided to?

The probate notice, in addition to being published in the newspaper, should be mailed to the following individuals:

Surviving Spouse
Adult Children of the Decedent
Minor and Adult Children of the Decedent
Heirs, Devisees, and Anyone Named in a Separate Writing
Creditors
Foreign Consul
Attorney General
Commissioner of Human Services

What should I do after I have provided notice?

The court always wants proof. Proof comes in the form of documents. Thus, the personal representative needs to provide the court with an Affidavit that they provided the proper notice to the above parties. Failure to tell the court that this was done will certainly result in a failure to receive letters testamentary.

Furthermore, an “Affidavit of Notice to the Commissioner of Human Services” must be filed. Just like the Affidavit of Service, this Affidavit shows the court that the personal representative gave the proper notice to the state of Minnesota. Why is this done? Because the Commissioner of Human Services keeps track of all medical assistance claims paid by Minnesota for expenses of last illness and care. This is often referred to as “medical assistance”. I have also written posts on probate and medical assistance issues. Feel free to read those posts for more information.

Finally, an Affidavit of Publication must be filed with the court. The Affidavit is often sent to the court by the newspaper where the initial notice was published. The newspapers don’t always do this, so the personal representative and their attorney need to check on this.

Receiving Letters Testamentary

Assuming all of the above was completed by the personal representative and the probate attorney, the court will issue Letters Testamentary (or, in the case of a person who died without a Will, Letters of General Administration). Finally, this is also assuming that the estate was started properly. The probate begin with the filing of a Petition or Application with the court – which is something I did not cover in this post. Please read the links above for question on that issue.

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.