MN Probate Law | Starting a Probate in Minnesota

Posted on August 11, 2016 by jlawyer

Many of the people who contact the law firm have questions about starting a probate in Minnesota. The simple answer is that an attorney must be hired and that certain intake questions must be filled out by the proposed personal representative.

The Personal Representative

The personal representative, often referred to as an “executor” or “executrix”, is the person nominated in the will to serve the estate and the other heirs. If there is no will the law in Minnesota tells us that children have equal priority to serve as personal representatives. This means that the deceased person’s children may each serve or that the children may come to an agreement on who serves as the personal representative

Starting a Probate in Minnesota

As stated above, the personal representative should contact a experienced and qualified probate attorney. The attorney will typically have an intake form asking personal information about the deceased, their heirs, and the creditors of the estate. It is very important to have accurate information gathered because this information will be the building-block for the entire case. The law firm has had many instances in which an heir had the wrong address listed and it was difficult to communicate with them due to this. The personal representative’s job is often difficult, tedious, and not something most people are used to.

The Probate Petition

Once the personal representative and the attorney work together to gather all necessary information, the attorney will begin drafting the necessary paperwork to get into court and have the court issue “letters testamentary” or “letters of general administration” to the personal representative.

The personal representative has to meet certain qualifications and follow certain laws prior to being appointed by the court. The personal representative will not receive the letters testamentary or letters of general administration until the proper legal steps are followed.

The most important provisions of the petition are to identify the deceased, the heirs, and creditors. Next, the personal representative must submit the petition to the proper County District Court. Finally, the personal representative must publish notice in the newspaper and give written notice to all interest interested parties.

What are interested parties? Minnesota law defines interested parties as any person who may have a claim to assets of the estate or debts of the estate. The persons having claims to assets of the estate are often thought of as the “heirs”. The people having claims against the debts of the estate are often referred to as “creditors”. Each of these categories have specific laws and rules that apply and a probate attorney should be consulted to interpret the law.

The initial probate court hearing

Once the proper probate information is gathered, an attorney is hired, and the proper steps are taken in the probate petition, the personal representative will have to attend a court hearing in the County District Court. The County District Court rules pertaining to what happens at a court hearing are different for each county. This can be very frustrating for most people – and many attorneys. The law firm has experience working with the different court rules in each county in the different judges in each county. This experience can be invaluable to quickly and efficiently start and finish a probate estate.

Questions about Starting a Probate in Minnesota?

Contact Flanders law firm LLC for a free initial consultation about starting a probate in Minnesota. The law firm has experienced attorneys who know the ins-and-outs of the probate law and how to commence in the probate and get it done. Call the firm today at 612-424-0398.

MN Probate Law | Basic Financial and Grief Advice for Recent Widows & Widowers

Posted on March 4, 2016 by jlawyer

As we grow older, we discover that no one can ever be truly “ready” to lose a spouse. Read on for more information about widow grief advice.

Even if you’re the sole caregiver of your husband or wife, the actual moment that person “passes away” or dies nearly always feels like a devastating loss – an event of immeasurable proportions. Efforts to try and regain your emotional and financial balance after this type of loss can seem futile – especially if you did little or no advance financial planning together.

However, whether your spouse has already passed away – or you’re currently struggling to take care of a seriously ailing husband or wife, you should be able to pick up some useful tips below to help you better prepare for the future – including estate planning. These suggestions can provide new steps toward growth for you personally – or you can share this information with someone you know who may need this type of help soon.

Widow Grief Advice | If Your Spouse is Still Alive — Have an Open Talk About Finances — Now

Do yourself and your spouse a big favor by immediately having a specific discussion about the current state of your finances. Gather up all of your individual paperwork and tell each other where all of your banking and investment accounts are located – and share the passwords for all online accounts with each other. Consider buying a large, spiral address book so you can record all of this critical information in it. You can list each account alphabetically. Be sure to update this information annually and keep this book or ledger in the same, secure location. (Creating a back-up copy would be very wise).

Here are some additional tips for regaining your financial and emotional footing after a spouse’s death – many of them are based on a recent New York Times article. These steps can help you move through what that Times article refers to as “the fog of grief.” Although women still tend to live longer than men and there are more widows in America than widowers, these tips should prove just as useful for men as for women.

Tips for More Quickly Regaining Your Financial/Emotional Balance After a Spouse Dies

Don’t hurry out and spend money on anything unnecessary. Many surviving spouses often feel a strong urge to go out and make a major purchase all on their own. While it’s one thing to simply buy a new couch or trade in a used car for a reasonably priced new one, it’s another thing to hurriedly sell your home and buy tickets for international travel;
Ask widows and widowers you know where you can find and join a good support group. Whether you’re active in a local house of worship, a community activity group – or even just a weekly poker or knitting group, chances are someone there has recently been through what you’re having to cope with and can provide you with the name of a local grief support group. If you cannot find this type of group, call up a local psychologist or senior center and ask for their recommendation. Joining this type of group can almost instantly help you feel “less alone” and more like someone who’s definitely going to move forward successfully – and do just fine;
Realize that about half of all men and women lose their first spouse around the age of 59 or 60. Accept reality and know that both of you will probably not live into your late 70s or early 80s. While some couples are that fortunate – you need to hedge your bets and share all you can now about all of your marital finances. A person can look incredibly healthy, exercise regularly and still have an unknown “DNA time bomb” that can suddenly cause him or her to suffer a fatal stroke or heart attack;
Hire a trustworthy, highly recommended financial advisor right away – and meet with your Minnesota estate planning attorney. Your lawyer can help you locate and properly interpret your various investment documents – and your financial advisor can help you begin deciding how to invest any new funds coming your way. Both of these professionals can provide their opinions about how you can best move forward;
Avoid letting your adult children, siblings or other relatives overrule your judgment, especially if you’re moving forward in a conservative fashion. Also, be wary of the small percentage of “professionals” who view recent widows or widowers as “easy marks” to make themselves rich at your expense. Always get a second or third opinion from friends and professionals before making any new, major financial decisions;
Don’t just say “I’m not good at math” and expect a financial advisor to make all of your major decisions for you. Be willing to sign up for a simple, straightforward online course (you can often find one that doesn’t assign grades) – that can help you become more financially literate. Since your investment portfolio will likely need to change over time – you must be able to talk intelligently with your financial advisor about all of your options. If you still feel very intimidated – ask around and see if a local university or community college offers a short-term class on financial investments. Your financial advisor should be able to suggest either an online or community program to you;
Look into groups like “Sisters on the Fly,” “The Red Hat Society” — or for men – The National Widower’s Organization. Members of these groups can often help you move through the different grief stages – locate a good, local financial advisor — and start reaching out and enjoying life again with other group members;
Always respect this general rule of thumb – never make any major expenditures for six months to one year after your spouse dies. While exceptional circumstances can require ignoring this key advice – lovingly realize that you won’t be your “true self” again for at least that long.

Finally, consider meeting with a professional grief counselor or basic therapist to help you better understand your vacillating feelings and frustrations as you get to know yourself as a single man or woman – who also happens to be a widow or widower. After all, new beginnings are always possible for each one of us.

Minnesota Estate Planning/Probate Attorney

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

Starting the Informal Probate Process in Minnesota

Posted on September 22, 2015 by jlawyer

If you want to probate a simple estate involving limited property, ask your lawyer if you can initiate the informal probate process. An informal probate is a fairly straightforward approach.

As for the general requirements, you’ll need to first check with your lawyer or county probate court because some Minnesota counties allow you to initiate the probate process online while others insist you do so in person. Here’s a quick review of what you and your attorney must include in the application to begin probate in this manner.

Information That Must Be Included in Your MN Informal Probate Application

Clear statement about your identity. You must tell the court what your interest is in the proceedings – whether you’re a spouse, child, personal representative or another party;
Specific data identifying the decedent. Be sure to include this person’s birth and death dates, along with the county and state s/he was living in at the time of death;
Provide contact data for all close relatives. In other words, list the names and addresses of the deceased person’s spouse, as well as his/her children, heirs – or other people named in any Will that may have been found. Also, if any of the children are minors, you need to list their ages;
Note where the decedent was living if his/her formal domicile was not MN at the time of death. This informs the court of the proper venue for probating the estate;
Identify the personal representative, if you have this information. Be sure to provide this individual’s address, too;
Include information about other related filings. If you know or believe that there’s been another probate or “appointment proceeding concerning [the] decedent” in MN or somewhere else – be sure to include this data, too.

In cases where the decedent left behind a Will, you must also include the following information in your application to initiate a probate.

The location of the Will must be described. You need to state whether the Will is already in the court’s possession, is attached to your application or if you’re providing an authenticated copy of a Will that’s been probated in another jurisdiction;
Reference if the Will has been properly executed. Check to be sure all proper parties signed the Will and that it was duly witnessed and notarized;
Validity of Will statement. You must be able to truthfully state that you have no knowledge (after checking) – that the Will has been revoked;
Statement that you’re filing the application in a timely manner.

Keep in mind that, in Minnesota, applications for both informal and formal probate “must be initiated within three years after the decedent’s death.” Always check with your Minnesota probate attorney when you believe that there could be a challenge to the timeliness of filing the application.

Response to Your Application

You should be able to quickly learn if the probate registrar views your application as complete. Once this decision has been made, the registrar will issue a statement of probate and appoint a personal representative. After you have successfully filed an application for the informal probate of an estate, the registrar will allow the personal representative to pay debts and inheritances, and complete all of the other required tasks without court supervision. Be sure to ask your lawyer what other rules or procedures may apply if the personal property involved in your Minnesota estate is worth less than $75,000.

Should you need to review the types of documents often required during the probate process, please visit an earlier article of ours entitled, “The Most Useful Minnesota Estate Planning Documents.”

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 | How Ethical Personal Representatives Avoid Lawsuits

Posted on August 11, 2015 by jlawyer

When most people have their Wills drafted, they choose highly responsible and wise family members or friends to serve as their personal representatives. Likewise, when someone dies without a Will (intestate), probate courts appoint well-qualified individuals to serve in this role.

While acting as a fiduciary, your personal representative has legal permission to manage your assets so that if your estate is large enough, all of your outstanding debts can be paid and all gifts can be distributed to your named beneficiaries.

Yet as straightforward as this process sounds, problems can easily arise. Here’s a look at the main duties your personal representative must handle, along with tips for addressing these tasks in a timely and fully transparent or honest fashion. When any unique challenges develop, many personal representatives request the help of a Minnesota probate attorney.

Key Duties Required of a Minnesota Personal Representative

Must locate and protect all estate assets. After properly notifying all of the testator’s creditors and beneficiaries that the probate process has begun, the personal representative must carefully locate and appraise all of the estate assets. S/he must then make sure they’re kept in a secure location throughout the probate process. When necessary and affordable, outside appraisers can help the personal representative make sure accurate values are assigned to all assets;

All legitimate, outstanding creditor debts presented must be paid, along with all probate expenses. Minnesota creditors have up to four months to present their valid claims against the estate if they want them to be paid. Common probate expenses can include all funeral/burial expenses, final medical bills, all legitimate debts owed to creditors, attorney fees, and all taxes due;

A formal inventory must be prepared and presented to the court, indicating all of the testator’s assets. This list should also include the fair market value of each asset at the time of the testator’s death. Should there be any outstanding liens against any property, the specific dollar amount owed and all related information should also be included. All debts should also be noted in the inventory, including specific information regarding each creditor/party that must be repaid. A wise personal representative will share this information with the beneficiaries as s/he deems appropriate. It can also help to meet with the beneficiaries and answer their questions about the probate process;
A final accounting of the estate must be presented to the court. Every transaction conducted by the personal representative on behalf of the estate must be properly recorded and documented in writing for the court. This allows the judge to make sure that all funds expended have been legitimately spent. Receipts must be kept for all services rendered to the personal representative in the course of his/her duties. Should it appear at this stage that the estate will not be able to give each beneficiary all that was originally promised, the personal representative might want to ask for the court’s advice on how to address this issue with them;

A final distribution of all gifts should be made to the beneficiaries. Since some estates may not be large enough to transfer all promised gifts to the beneficiaries, it’s often wise for a personal representative who has been promised a set payment for his/her services to fist meet with the beneficiaries before accepting any personal payment. These individuals must realize that Minnesota personal representatives are often paid between $25 — $50 an hour for their services, unless higher fees were guaranteed based upon the representative’s professional status and experience. A proper fee can usually be agreed upon, once the beneficiaries can see that they are being awarded the maximum percentage possible of the original gifts or funds promised to them.

As implied above, personal representatives can often avoid lawsuits if they’ll meet with all interested beneficiaries throughout the probate process. If a Minnesota probate attorney has been hired by the personal representative, s/he may want this lawyer to create a document for all of the beneficiaries to sign — indicating that they understand why they’re receiving less than was originally set aside for them — and that they’re in agreement with the final accounting.

Minnesota attorneys and lawyers

If you have questions about the home, transfer of title to real property, or other Minnesota probate questions, contact Flanders Law Firm LLC at 612-424-0398.

Minnesota Probate | Nomination of Personal Representative

Posted on May 12, 2015 by jlawyer

In every Minnesota probate estate, a personal representative needs to be appointed. At times, the process by which that person gets appointed can be complicated.

An important provision is the nomination of a personal representative as contained in Minnesota Statute § 524.3-203(c). This law permits people who are entitled to act as personal representative to be nominated. The question is, who gets nominated and why?

Nomination of a Minnesota Probate Personal Representative

“Interested persons” have priority to be appointed as a personal representative. The list of priority includes:

(1) the person with priority as determined by a probated will including a person nominated by a power conferred in a will;

(2) the surviving spouse of the decedent who is a devisee of the decedent;

(3) other devisees of the decedent;

(4) the surviving spouse of the decedent;

(5) other heirs of the decedent;

(6) 45 days after the death of the decedent, any creditor;

(7) 90 days after the death of the decedent and pursuant to section 524.5-428, paragraph (b), any conservator of the decedent who has not been discharged.

The persons who are “qualified to nominate” include:

the surviving spouse
other devisees of the Will
any other heirs of the estate.

If there was no Will, the heirs of the estate and the surviving spouse (if there is one) have the power to nominate a personal representative. Another important thing to keep in mind is that, if the heirs cannot agree on who should be nominated, that person nominated in the Will should ask the court for permission to serve in a “formal administration.”

Priority to Serve as Personal Representative

A nomination is preferable when a person has priority for appointment. When two people share priority, those people should renounce their right to serve and/or nominate the other person to be appointed. Again, if even one person is missing in the nomination process, a formal administration will be necessary.

Formal Probate Administration

Often, the siblings will not agree on who should serve and they do agree to nominate one particular person. In this instance, my advice to the person nominated in the Will (who is the person who most often comes into my office) is that they start a formal administration.

A formal probate administration is not necessarily a bad thing. It does, however, change how the estate is administered. If it is a formal administration, the personal representative must have their actions approved by a judge. Additionally, there must be a court hearing for many of the actions taken by the personal representative. At times, this can raise the cost of the probate estate.

In sum, it may not be possible to get all necessary nominations from the parties who have “priority” under the law. Minnesota probate attorneys understand this and you should speak with qualified lawyer if you run into this problem.

Minnesota Probate Attorneys

If you have questions about the nomination of a personal representative and/or Minnesota probates, contact Flanders Law Firm LLC at 612-424-0398.

Personal Representative Liability for Failure to Pay Probate Estate Taxes

Posted on January 26, 2015 by jlawyer

An important case was issued recently out of the Western District Court for the Western District of Pennsylvania, United State v. Stiles, No. 2:13-cv-00138.

This case provides and excellent explanation for why people should not administer estates (especially large ones) without the help of a lawyer.

Facts of the Case

Julia Stiles died in 2002. Her son was appointed executor (personal representative) of her estate (it is not clear whether he did so with the use of an attorney or not).

The tax return for the estate was not filed until June of 2008. On June 9, 2008, a representative of the Secretary of the Treasure Internal Revenue Service of the United States (IRS) assessed federal income taxes, interest, and penalties against the estate in the amount of $2,093,091. That is a lot of money in taxes.

The real property in the state of Delaware was sold in August 2002, for $379,000. Once the property was sold, the proceeds were distributed to the heirs shortly after the sale. The IRS did not receive any proceeds from the sale of the property.

Between 2002 – 2005, the son distributed approximately $775,000 from the estate to himself, and $425,000 to each of his two sisters. At the start of April 2008, the estate’s investment account was worth $1,787,660. In April of 2008, David Stiles distributed $110,635 from the estate to the Delaware Division of Revenue.

The IRS can Charge Interest on Late Payments

The IRS presented evidence to the court that interest was owed on unpaid income taxes. Interest on the income tax assessments is assessed under 26 U.S.C. 6601(a) and (b) from the date that the Stiles’ tax liabilities became due at a rate set forth in 26 U.S.C. 6621(a). Penalties are also allowed by federal law.

The law on failing to pay estate taxes

The IRS in this case filed for a summary judgment. In essence, this means that the IRS felt that the Stiles had not cognizable defense. The court agreed.

In seeking to foreclose its tax lien on the estate, the IRS argued in its summary judgment motion that there was a prima facie assumption of tax liability. Therefore, since the government had arguably met its burden, the Stiles had to file a responsive statement of facts. They did not do so – ostensibly because they did not appear to be represented by counsel.

Personal Representative Liability Law

The personal representative of the estate also argued that the estate was now insolvent and therefore the IRS could not foreclose in its tax lien.

The IRS argued that, because the personal representative of the estate was a fiduciary that it could hold him personally liable for the tax debt. The IRS cited law which provided that:

“Personal liability can attach, to the extent of the distribution, if the government establishes three elements: (1) the fiduciary distributed assets of the estate; (2) the distribution rendered the estate insolvent; and (3) the distribution took place after the fiduciary had actual or constructive knowledge of the liability for unpaid taxes.” United States v. Tyler, No. 10-1239, 2012 WL 848239, at *10 (E.D. Pa. Mar. 13, 2012). “

The court agreed with the IRS’s argument and found the personal representative liable for a tax debt in the amount of

What is even more confounding is that the personal representative admitted that he knew about the tax liability:

David Stiles admitted, through testimony, that he knew in 2002 about the estate’s federal tax liabilities. (ECF No. 35 ¶ 17); see Estate of Stiles, 2011 WL 5299295, at *6 (“[David] Stiles testified at trial that he knew as of 2002 that estate taxes would have to be paid in addition to the yearly fiduciary income taxes, but he made no affirmative efforts to pay those taxes or learn of the deadlines by which they should have been paid.”). On June 18, 2003, during a telephone call with his lawyer, David Stiles was informed that the estate’s tax returns were late. Estate of Stiles, 2011 WL 5299295, at *6. Based on the record before the court, David Stiles knew about the estates’ tax liability, at the latest, on June 18, 2003. David Stiles continued to distribute assets out of the estate through 2006.³ (ECF No. 35 ¶ 19.) The record before the court shows that David Stiles had knowledge of the estate’s tax liability and continued to distribute assets out of the estate rendering it insolvent. See Tyler, 528 F. App’x, at 200-02.

Finally, it appears that the personal representative was relying on a defense of bad legal advice. The court also did not find this argument compelling, providing that: “Relying on the poor advice from an attorney is not a defense. It is unfortunate that the Stiles received poor legal advice; however, poor advice does nothing to mitigate their liability for the decisions David Stiles made in managing the estate.”

Seek out competent legal counsel

Having experienced, competent probate attorneys for a Minnesota probate is a must. Personal liability is very real and must be taken seriously by all potential personal representative.

For further information, contact Joseph M. Flanders at 612-424-0398.

7 Initial Duties of a First-Time Minnesota Personal Representative

Posted on October 22, 2014 by jlawyer

What are the initial steps to take as a first-time personal representative in Minnesota? The attorneys at the office are often asked what to do next when someone has lost a loved one. This is a difficult time for many peoples and we have noticed that people simply do not know what to ask or where to start.

There is some good news: it may not been necessary to do anything with the deceased person’s estate if the total value of the estate is under $50,000. This means that it would be a small estate and would therefore be administered by an Affidavit for Collection of Personal Property. However, if the estate is worth more than that, a personal representative will need to be appointed by a probate judge.

7 Initial Steps of the Personal Representative:

There are certain things a person should do first when their loved one dies. These tasks include:

locate all assets of the deceased person
locate all debts of the deceased person
obtain the certificate of death from the county in which the person passed-away
determine whether not the deceased person had a Will or other estate planning documents such as a Trust
locate and contact all of the known heirs of the estate including the surviving spouse (if there is one)
locate the contact information for all creditors of the deceased person
schedule a consultation with a Minnesota probate attorney

Again, at times, a probate may not be necessary. If the estate is very small, a lawyer may not even need to be involved.

What to expect from a consultation with a probate attorney

In every consultation I do with a client, I am looking for information on the deceased person’s assets and debts. I will also ask for all personal identifying information on the deceased person; including: full legal names, dates of birth, social security numbers, and other personal information.

Once an attorney gathers the personal information for the deceased, the attorney will consider what assets may be exempt from creditor claims and what assets are available to pay estate debts. Estate debts may include such things as funeral expenses, expenses of last illness, and other bills.

After the attorney determines what the expenses of the estate are, the attorney will consider the possible distribution of assets (money) to the heirs and other beneficiaries of the estate. This could be a large lump sum or, at times, the estate may be insolvent (meaning there may be no money).

If the estate is insolvent, it may still be necessary to conduct a probate administration to transfer title of a home or other real estate. When real property or homes are titled in the name of the deceased person, is often necessary to “clear title”. This means that, in the state of Minnesota, the county recorders office will have to be notified of the probate estate and that the personal representative has been appointed so that he/she now has authority to transfer title to real estate. This is a complicated legal issue and a lawyer should be consulted if you have questions.

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.