Minnesota probate

Probate Without a Will | Minnesota Law

Posted on by jlawyer

Probate Without a WillProbate Without a Will

This is might or might not be a black and white process. Probate can involve a lot of small details that need to be dealt with. So, to answer a few general questions, here are a few general answers. Yes, you should have a probate attorney who is more than a little bit familiar with probate law. That should go without saying.

Because of how much this process relies on the kind of assets you’re dealing with and how many assets there are, your best ticket is to get as much knowledge as you can about the entire estate and the probate process itself. This isn’t a sitcom’s stereotypical litigation process where everyone stands before the judge to prove or disprove a point. It’s more or less dealing with the deceased’s assets and waiting for each asset to be approved. Continue reading to find out more about the ramifications of not having a will during the probate process.

It All Depends

A will is usually what guides your assets. That is, unless there are trusts in place to route some of the assets in question. Not having either of these in place may leave everything in the hands of the court.

Personally electing an executioner may do little if there’s not a will in place. Your will is what allows your executioner to do their job. It doesn’t matter what you taught or instructed them. They may know your every thought and have evidence to back it up, but trusts and wills are what the courts trust.

Not having a will is not necessarily the worst-case scenario, nevertheless. The court will probably look at the family situation and diagnose how to distribute the assets in light of the deceased’s relations. For example, if the deceased was separated from their spouse, the surviving spouse will still be considered the next of kin. If the deceased was divorced, rather, their ex-spouse won’t be considered their next of kin. The court will know that not every family situation is cut and dry. It just may take some extra time to fully assess and then address the situation.

In Trusts We Trust

Your will is not a trust and a trust is not your will. They are two separate legal entities that both affect the probate process. Trusts have two advantages over wills because they’re harder to contest in court and they can sneak assets through without going through probate. There’s the chance that someone might check on those assets, but as long as the trusts stand, everything should be in order.

Unlike executioners, trusts don’t depend on wills. The trusts should still be honored regardless of what happens to your will or the lack of thereof. While it’s probably unrealistic to put all of your assets into trusts, they’re great options for assets that must be passed down.

It’s possible to put lots of assets into revocable trusts, but that means you might need several trusts while you could just put those assets into your will. If time is short or you’re concerned about a particular asset, a trust might be the better option when compared to a full-blown will. At the same time, consider creating a will in order to cover your other assets. Trusts are good for ensuring one or two assets are passed down while wills can be better for large amounts of assets.Probate is a Probability

Trusts aside, not having a will in place almost guarantees that your assets will go through probate. It’s the court’s way of handling everything. Assets will need to be assessed. Debts will need to be paid. Everything will need to go in some shape or form. Nothing will be immune from being sold off to pay off debts. Though you may want to give everyone a top-level education, the end result may be far different from your original intent.

Your word probably won’t hold up if it’s not in writing. The court must deal with each and every debt that you have. Even if your house is all that you own, that still isn’t immune to being sold. Student debts will be forgiven, but otherwise, those debts don’t just go away. Debt collectors can’t play favorites. Until every cent of your debt is gone, you may as well start writing out your will with your debt collectors being your beneficiaries. The quickest way to ensure your family gets anything from your will is to pay off your debts one by one, starting from the smallest and moving towards the biggest.

Relatives Take All

Perhaps you’ve heard the saying, “Blood is thicker than water.” That saying can, more or less, be applied to probate when a will isn’t present. Your relatives, whether my blood or marriage, tend to be the ones who inherit from you when you pass without a will. Friends and individuals who are not recognized by the court as being family aren’t normally so lucky. An unregistered partner might end up getting nothing once you die regardless of your external family life or your relationship with said partner.

If you want anything to pass onto someone that isn’t a part of your family, wills and trusts are a must.

Minnesota Probate might not leave anything to them. You might not have a single debt in the known universe and your estate can be kept perfectly intact, but unless the court does something out of the ordinary, your friends won’t see a cent from your assets. The judge may not take into account your sudden debt or some other reason why you didn’t have a will. Wills are, to some extent, insurance for your assets, helping those who aren’t related to you obtain the gifts you promised. Don’t bet on sob stories. Judges probably hear one or more for every court case they preside over.

How to Start | Minnesota Probate Lawyers

You start by contacting a probate attorney. Visit or contact the law firm of Flanders Law Firm LLC. They’ve helped people deal with probate issues time and time again.

If you’re not convinced, dial 612-424-0398 and speak with someone representing the firm.   Those assets cannot move or asses themselves.  Getting them through probate faster sometimes means having more help. And even if the majority of assets are covered by trusts, consider having that same lawyer look over the trusts to ensure that everything’s in order.  A probate lawyer who knows the ins and outs of both probate and trust law can help your family do exactly what needs to be done.

Going Through the Probate Process Step by Step

Posted on by jlawyer

Going through the probate process step by stepGoing Through the Probate Process Step by Step

Setting the Record Straight

Before diving into how the probate process proceeds, let’s first define the probate process itself. Technically, it’s a process that mainly involves two layers; namely, settling any debts belonging to the decedent and transferring ownership to any benefactors.

Effectually, it’s wrapping up any legal circumstances pertaining to the decedent and ensuring that their will is fully carried out. Most likely, this process will involve working with a lawyer who knows probate law at some point. Moreover, the lawyer who you work with might be the one who has final say.

Do not get on their bad side. For this specific kind of process, the last thing you want is to have the lawyer working against you.

MN Probate | Ask First

To get the probate process in motion, someone needs to inquire about becoming and being designated as the executor or personal representative. Each state is different. Your lawyer might be able to tell you which of the two terms your state uses.

There is, however, a third option. In the circumstance that no will exists, you probably won’t become either an executor or personal representative. Rather, you’ll be classified as an administrator. Most likely, the person who fills one of these three roles needs to have been close to the person whose assets are being distributed.

Nonetheless, being a close friend, a blood relative, or even a spouse does not automatically qualify you. An application process stands before you. Unless the court grants you one of the aforementioned titles following the application process, you won’t have that legal power. Someone may fill that role instead.

MN Probate | Valid Will

Not every will is actually valid. As much as you may want the will that you’re working with to be automatically validated, the court still needs to decide that.

Not only do they decide who can and can’t be the executor, personal representative, or administrator, they also determine whether or not the will itself is actually valid. Note that just as not everything in writing is true or accurate, a will might not be valid as well.

Factors surrounding the will need to be taken into account. When in doubt, get help. Otherwise, you might end up not being able to use the will whatsoever.

MN Probate | Necessary Documents

Getting back to applying to be an administrator or whatever it’s called in your state, you must have all of the necessary and valid documents. You need the will and then some. Thankfully, one of the documents is the application itself.

So, as long as that’s successfully completed and in your possession, you should just need the will and a death certificate. If you don’t have those already, you’ll need to obtain a copy of both. Without them, nothing can move forward.

Concerning the death certificate, the court must have solid evidence to ensure that the deceased has actually passed on. As a side note, double check where you apply to. Your application shouldn’t go to just any probate court. Find the probate court that presides over the country of where the deceased lived during the time of their passing. That’s where you send your application to. When in doubt, get your facts straight with the county.

MN Probate | The Property Itself

Once the actual process has begun, it’s about time to deal with the deceased’s assets and property. This stage is threefold, starting with identifying the property and assets, followed by classifying them, and appraising them.

The actual distribution happens at a later point in time. For now, what the deceased owned must be gathered and organized. Until everything is properly accounted for, no one can get anything. Then, once the property has been all rounded up, an appraisal needs to happen. The goal of the appraisal is to find out the cash value of non-cash assets. The process will not affect or apply to any bank accounts.

MN Probate | Debt Begone

It would be nice to leave behind all your assets to your heirs. However, debt is what might be standing in your way. This is why the appraisal process occurs, to see how much money the property is worth when debt remains. Remember, you can’t take your property or your debt with you.

The debt must be dealt with somehow. And if your house is what fills in the debt hole, your heirs might not get the home. This should go without saying, but if you can, get rid of your debt while you’re still on the Earth.

That means if you take a loan out on a car, but it’s not paid off, your heirs might not see it anyway. Debt doesn’t let you keep everything. Debt must be paid off in some manner. The biggest blessing to your offspring might not be a new house but one that doesn’t cost a cent.

MN Probate | Added Assistance

Let’s not make the probate process anymore difficult. Instead, take a step that makes things easier by consulting the law firm of Flanders Law Firm LLC for some assistance.

You need lawyers who can help walk you through probate law.

All you have to do to start the process is ask for a free initial consultation by calling 612-424-0398. Whether you have more questions concerning the above questions or you just want general help, they should be right beside you to assist you on your journey.

When Is Probate Necessary?

Posted on 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.

MN Probate | What Property Does the Surviving Spouse Get?

Posted on by jlawyer

What does the surviving spouse get Minnesota ProbateExempt Property

Minnesota statute 524.2-403 is that law regarding what exempt property the surviving spouse is entitled in a probate.

First, it is important to note that the surviving spouse is entitled to different types of exempt property or “spousal elective share rights”.

Homestead Elective Share Rights

A surviving spouse is entitled to a “life estate” in the deceased’s homestead.  This means that a surviving spouse gets to live in the deceased’s home for the rest of his or her life.  Furthermore, it is possible to “value” a life estate if the surviving spouse wants to sell this interest to a buyer.  This can be very complicated and is often based on actuarial analysis based on the remaining years of the surviving spouse’s life.

Surviving Spouse Elective Share

Minnesota statute 524.2-202, tells us that:

Elective share amount. The surviving spouse of a decedent who dies domiciled in this state has a right of election to take an elective-share amount equal to the value of the elective-share percentage of the augmented estate, determined by the length of time the spouse and the decedent were married to each other, in accordance with the following schedule:

If the decedent and the spouse were married to each other: The elective-share percentage is:
Less than one year Supplemental amount only
One year but less than two years Three percent of the augmented estate
Two years but less than three years Six percent of the augmented estate
Three years but less than four years Nine percent of the augmented estate
Four years but less than five years 12 percent of the augmented estate
Five years but less than six years 15 percent of the augmented estate
Six years but less than seven years 18 percent of the augmented estate
Seven years but less than eight years 21 percent of the augmented estate
Eight years but less than nine years 24 percent of the augmented estate
Nine years but less than ten years 27 percent of the augmented estate
Ten years but less than 11 years 30 percent of the augmented estate
11 years but less than 12 years 34 percent of the augmented estate
12 years but less than 13 years 38 percent of the augmented estate
13 years but less than 14 years 42 percent of the augmented estate
14 years but less than 15 years 46 percent of the augmented estate
15 years or more 50 percent of the augmented estate

Assets in Addition to the Homestead and Family Allowance

The statute tells us that, if there is a surviving spouse, in addition to the homestead and family allowance, the surviving spouse is entitled from the estate to:

(1) property not in excess of $15,000.00 in value in excess of any security interests, household furniture, furnishings, appliances, and personal effects, subject to a n award of sentimental value property under section 525.152;

(2)  one automobile, if any without regard to value.

Rights to Exempt Property

It is also codified that a surviving spouse’s right to exempt property and assets has “priority” over all other claims against the estate.  This mean that the surviving spouse is paid first, prior to any other payment of claims or distributions from the estate.

Minnesota Surviving Spouse Rights Lawyers

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

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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.

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.

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.