Stealing from the Probate Estate

Posted on May 10, 2022 by jlawyer

Stealing from the Probate Estate | What to do

Theft is a dark word. Should that be related to the circumstance that you’re dealing with in accordance to a probate law case, you may have to prove why something shouldn’t belong to someone rather than why it should belong to you. Stealing from the probate estate is more common than you might think.

The Minnesota probate process is meant to either give to the debtors to which the property may now rightfully belong or to the beneficiaries so that they can have something as remembrance of or as sustenance from the deceased. What was said in the will is sometimes relative to what the court decided and what kind of assets there were.

It may feel like the debtors stole from you or that someone got a larger portion than you, but all of these things are money games. The executor or administrator must balance a checkbook for the deceased and figure out how they’re going to do the right thing. Debts can swallow up properties like how a child may swallow up a slice of cake. What was meant for you might not end up being available to you.

Economic Forensics

Knowing that a beneficiary stole from the estate is one thing, but having a forensic accountant check over the details is another thing. This is a step that you might want to take in case you’re looking to have as much evidence as possible. Almost every aspect of probate either boils down to assets or doing paperwork pertaining to those assets. That said, should you have paperwork on the stolen assets, someone can work on checking to verify what should be there but went missing.

Two specific types of records, property records and financial records, are probably what they’ll be looking at. Any accounting done by the executor or similar bits of information might be what the forensic accountant. Moreover, assuming that you’re a beneficiary who didn’t steal from the estate, you have the right to ask the executor for an accounting. It’s one of your perks.

Stealing from the Probate Estate | Always Check the Assets

A final accounting will need to happen eventually. It may be far off in the future. Such might be the case should the beneficiary have taken or sold something off too early on in the probate process.

Checking over the assets and comparing what was lost is incredibly important. Almost nothing should be touched or changed from how the deceased kept it, unless something needed to be done to maintain things or keep something from being destroyed. Getting a new insurance policy on the home is actually expected and completely understandable.

If you think that the bank accounts were tampered with, check if there were withdrawals. Verify whether or not the deceased actually sold the home and inquire with the executor about its sale. Actually, check with the executor about any sale that takes place pertaining to the estate regardless of size of the purchase.

They’re at least going to need to know what happened for their own records. Perhaps they’ll even be able to clue you in as to whether or not theft took place.

Get Your Evidence

If something really was stolen from the estate, you must begin to gather your evidence. Speaking to the probate court should be one of your top priorities. Knowing which probate court to speak to, the one that handled the case, is of the utmost importance.

They should have most of the official documents. You’ll probably find yourself having to prove that their documents are false before you can make a solid claim against what they may believe to be true. They’re who probably gave the executor or administrator their power after all.

A second step to take would be to talk with the administrator or the executor. Should they agree with your claims or raise an issue with them, you can plan how you want to respond from there. Not only should have the administrator or executor viewed the documents pertaining to probate, they could have been the one who helped fill them out as in the case of a final accounting.

For something to have slipped, it might have missed their eye or been something they were unaware of. In truth, it’s completely possible that the beneficiary was just unaware of how the probate process worked and assumed what they took was rightfully theirs.

That said, the executor or administrator should be the one to help you figure out if there really was stolen property or not. If the court or administrator or executor can’t help you, you must consider the validity of your claim and what other options you might have remaining.

Making Legal Moves

Once you have come to a decision that it’s time to peruse legal action, evidence is what you’ll need. Copies, copies, and more copies is what you need to procure.

Get the will as soon as you can. If no will was used in the case, you must assume that the document cannot be used in any way towards the claim. Stating that the will was unused or wrong may mean that you have, at least in part, a different kind of issue.

Disputing a will is a real kind of issue, but it doesn’t always mean theft took place. However, you may need to establish that a will was supposed to be used for probate before you can even validate your claim of theft. If the document which says someone stole from the property proves false, you probably have no claim.

Where the right will wasn’t utilized, you must consider having mercy. The administrator, in the case of a wrong will, or the executor, in the case of the absence of a will, may have been acting with what knowledge they had. Having a will or not having a will doesn’t make a probate case anymore or less legitimate until otherwise proven.

No one is, more or less, the owner of any property that needs to be probated until after the court has approved everything. You need to actually prove that something actually should go to someone else.

MN Probate Lawyer Questions

For the specifics on Minnesota probate laws, you may want to reach out to a probate lawyer. You can ask them and see what can be done about the matter.

Perhaps they can advise you on how to deal with a bond that was taken out or how to see if everything is in order. This isn’t to pretend like everything is going to be easy.

That said, having their help may make things easier overall. There might be a lot of legal documents, but they should be able to help you narrow down which ones apply to your situation.

There’s one at Flanders Law Firm LLC who can help you, and if you want to know more about doing what’s right in a probate case, call them at 612-424-0398.

Minnesota Affidavit of Identity and Survivorship

Posted on March 22, 2022 by jlawyer

Minnesota Affidavit of Identity and Survivorship

When someone dies in Minnesota, they often own real estate. That real estate could be a home, rental property, cabin, or land.

What happens to the land when someone dies? Where does it go? How do you transfer title to heirs? This article aims to provide a legal analysis of Minnesota Affidavits of Identity and Survivorship and how that affidavit helps people transfer title to real property

Title to Real Property

Landowners in Minnesota own the “title” to the property. This title interest is different from being on a mortgage. The deceased person often agreed with a bank for a mortgage on the home. What are heirs supposed to do when the deceased person was on the loan? How does that effect title?

Minnesota differentiates ownership of “title” from being an signor on a mortgage. A mortgage is simply a security interest that a bank has on the home. It is a lien interest. That loan is “secured” by the land. Huh? Basically, the bank has a secured lien on the home because they loaned a person money so that they could live in the home and eventually “pay-it-off”. Most people understand this.

However, it is important to know that people still own a separate “title” interest in the land. This title interest is “recorded” with the county in which the person lived. For instance, if you own a home in Minneapolis, you have a recorded “title” interest with the Hennepin County Recorders Office. You likely received a “deed” for that property when you bought the home.

Deeds come in many different forms. Common deeds are: quit claim deeds and warranty deeds. This article will not get into the definition of what each deed means. Rather, this article focuses on the title issues associated with those deeds. When you buy a home or receive title to a home, that deed interest is recorded in the county recorders office where you live. You have “title” to that property and Minnesota law recognizes that.

Transferring Title at Death

If someone dies, they still had a recorded deed interest with the county where they live. Sometimes – and this is important – the deceased person owned “title” to a home as “joint tenants” with another person. This scenario is very common when married couples own a property together. Married couples most often take “title” to the property as joint tenants. Minnesota law tells us that a joint tenant automatically receives title to the property when the other title holder (the husband or wife) dies.

But, that “title” interest still needs to be made official. The state or county doesn’t do the work for you. The survivor (in the joint tenancy scenario) needs to inform the county that their spouse has died. The spouse can do this by filing the correct legal documentation with the county – an Affidavit of Identify and Survivorship.

Affidavit of Identity and Survivorship

As discussed above, when two people own real property (a home) as joint tenants, they have automatic survivorship rights in the title of the home. (This is very different for tenants in common but that is not discussed in this article). In a joint tenancy scenario, the survivor needs to file an Affidavit of Identity and Survivorship with the county recorder. The reason that this must be done is that it keeps a proper record of who now “owns” the home. If the proper record is made, then the new owner (not the deceased person) has the legal right to sell the property or otherwise convey title to someone else.

The Affidavit of Identify and Survivorship is a legal “form” that declares:

Who the deceased party was
When the person died
Who the survivors are
What the address of the property was
What prior recorded deed allows for an automatic transfer
A statement, made under oath, about who the survivor(s) were and why they now have “title”

It is important to keep in mind that a certificate of death needs to be recorded, along with the affidavit. These two documents are necessary to have a valid, recorded title interest.

Minnesota Probate Lawyers

If you have questions about the Minnesota Affidavit of Identity and Survivorship, contact the Minnesota probate law firm today. Joseph M. Flanders has years of experience counseling clients on all matter of title and probate law.

Call today for a free initial consultation at: 612-424-0398.

Petitioning to Become an Executor of an Estate

Posted on March 10, 2022 by jlawyer

Petitioning to Become an Executor of an Estate

To try and petition to become an executor over a Minnesota probate law case isn’t unheard of. If you don’t try to fill the role, the court will probably try to find someone else eventually.

Either the probate court will find a candidate or someone will step into the role. This isn’t a position n that you can simply jump into and start filling. There’s petitioning for the role and also getting the court’s approval to start overseeing things.

Be prepared for other people connected to the case may have higher priority than you, save for the chance that you’re the deceased’s spouse. You probably don’t only need to please the court to get their permission, but you may also find that you have to come to terms with your own family. Permission is a huge part of this ordeal.

Minnesota Probate | Priority Check

Someone could want to serve as executor of the estate, but the concern may truly lie in who has priority to serve in this capacity. Family almost always gets top priority to get this role. States can have say in who gets the highest priority, too, making it so that some members have higher priority than others.

Not everyone may be equal in this situation. The general standard throughout these fifty states is that the spouse of the deceased maintains top priority regardless of their residence. From there, the list tends to descend to immediate family, allowing for adult children, parents, brothers, and sisters to have their chance to assist.

Should you want to assist as an executor, you should work hard to figure out who has priority over you. They may or may not allow you to serve, preventing you from moving forward, regardless of your priority.

The issue, moreso, may lie in coming to an agreement of who should serve as executor. This rings true for people with higher and lower priority, as beneficiaries might want to have say in who manages the estate or you might need someone else’s permission before you can officially serve. Working towards harmony may make things easier.

Minnesota Probate Missing Will

There are probate cases where no will exists or no will proves to be valid, and there are cases where the probate court doesn’t approve of who the will named as executor. All three of these circumstances will probably result in the court wanting someone to become the executor in the desired executor’s place. Not naming an executor in the will, to say nothing of not making a will in the first place, leaves the deceased without any real say in the matter. They’ve potentially abandoned their right to make a statement over the issue at hand.

The will can be the whole deciding factor whether or not you can be an executor. Yes, you must get permission from the court, but the will is what everyone should be trying to complete.

Not having a will involved in the case may mean that the role of handling the estate is open to anyone, but if a will exists, you may have to wait and see if the court approves of the executor named in that will. You can see if you can find out who the will names as executor, and in the case it leaves such information out, that might be your opportunity to seek to take care of things.

Minnesota Probate Petition

Assume that the court wants to do less work. So, if you’re planning on being the executor of the estate, get ready to do the petitioning for the position on your own.

You can ask for advice, but you might need to carry out the labor. Don’t attempt anything till you’re certain that you have permission from anyone else who has higher priority than you. For all you know, they could find you at the courthouse the same day that you’re going into petition, and you may learn that they’re seeking the same role as you. Anyone who retains higher priority might take advantage of their priority and prevent you from taking what may belong to them.

Before you go, moreover, make sure you call in advance to find out what kind of things you need to bring. Plan on bringing cash for a filing fee and supply your own paperwork to support your request. That said, you may also need to check your calendar to set up a hearing for this petition. Yes, you may need to have a hearing before you can really start this case.

Though, prior to assuming that might be all of what you need, double check to see if you need to also petition for probate. You might find yourself making two different petitions for one case so that you can become the executor.

May Not Change Things

Your duties and powers will probably be the same regardless of how you were appointed. An executor is still an executor, and even if you were hand-picked by the court, that doesn’t mean that you’ll have complete freedom. The court is hoping that you’ll do the right thing and make the best judgment calls.

You’re still trying to please them, acting out this role because the court has been gracious enough to grant you this freedom. A favor to them this might be, but that doesn’t mean they won’t be willing to find someone to replace you. Plan on pleasing the court, the deceased, the beneficiaries, and the creditors.

You definitely can’t try to do anything that will greatly impact the estate before the court appoints you to become an executor.

Taking out insurance to help cover the home in the owner’s absence is understandable. It’s when you give something away or sell stuff off that things can get troublesome. Assume that even if you have high priority, you’re still waiting for the court to approve your petition. Never forget that the situation may well be that the court didn’t like the executor which the deceased appointed in their will. If their attempt failed, try your best so that you succeed. Realize that your role is probably as replaceable as theirs. That said, don’t be surprised if you face a similar fate should you try to replicate their failures.

Minnesota Probate Lawyers

For you to pursue the role or an Minnesota probate executor or for you to help someone pursue that role, you should make sure that you have every ally that you can get on your side. You should be laboring to work against the opposition. You want to win the metaphorical battle, but you need to assume that you still need to work through the whole of this probate case after this small skirmish has ended.

Ally yourself with a MN probate lawyer from Flanders Law Firm LLC.

You want to have a team to help you with the challenges that lie ahead of you. This might only be the start of dealing with unknown treasures and learning to tackle new difficulties, but here’s to you overcoming the hills in front of you.

Start your jouncy by dialing 612-424-0398.

Sources

Minnesota Probate Code

Home Sales in a Minnesota Probate Administration

Posted on March 3, 2022 by jlawyer

Selling a home during a Minnesota probate is not something that you can do carelessly.

This is a larger project which must be conducted both in the right manner and with the proper people.

Minnesota Probate law has its way of dictating how to proceed without disrupting the overarching concerns. However, before you can learn how to act during one of these sales, it’s best to understand what might be the underlying causation to the central event. These auctions aren’t always brought about on a whim. Moreover, you may find that you’re in the middle of helping someone rectify the financial past of a recently deceased family member.

Why Sell

Sometimes choosing not to sell the property isn’t an option during probate.

The whole estate could be up for sale because there isn’t enough money or assets to pay off all of the debts, taxes, and other bills. The aforementioned items will still need to be paid in almost every probate case dealing with debt, at least in part, but whatever is being sold is usually brought to market to either pay something off or because no one is going to inherit it. Objects that were owned by the surviving spouse might not get touched, but don’t assume that anything will be passed down to the next generation until the debts are fully paid.

There are three potential parties that may have authority to sell off property during the probate process: the court, the executor, and/or the administrator.

Assume that they plan on selling on every part of the estate that they can if the debt calls for it. You need to consult them if you want any specific parts to be kept. As far as they may be concerned, selling off one larger asset may be more efficient overall compared to selling several smaller assets. Moreover, anyone selling parts of the estate must be wise in how they sell it. Selling property at an abnormally low price may cause legal issues.

Get Home Insurance

Regardless of what kind of items are being sold, make sure that the home itself is properly insured. You don’t want one of the largest assets to be brought to ruin without some kind of way of restoring it. It’s not uncommon for home insurance policies automatically dissipate once the home owner passes on, leaving the home without coverage until a new policy is introduced. Treat the home as if it’s going to be lived in even if someone is not going to inherit it and the entire estate is going to be sold off.

One way that you could maximize the selling price of the home is keeping it in good condition. If a fire or flood destroys the home, you might only have the insurance policy to go on. Don’t assume that you can treat the court as your insurance company since they’re probably looking to the executor or administrator to care over the assets. Whatever assets are lost during the process might not be able to be replaced, and losing the home could mean that you have to find a new place to stay. You may even want to consider having the executor take out a bond just to be sure.

When not to be Executor

Any party that wants to be the executor of the estate should not be someone who also wants to purchase the home with their own cold hard cash. Things get tricky otherwise to say the least. Executors should almost always be as impartial to the situation as they can be in order to properly conduct sales. Truth be told, executors should usually want to buy as little of the property as possible. And even in the case that they were originally supposed to inherit the home, but now they have to sell it to pay off debt, they should still turn down the role as executor. The court wants the buyer and executor to be two different people.

To help you better understand, realize why the sale is being made. If you’re an eligible heir, the only reason why the house is being sold off is to help pay off debt.

Should you take advantage of the situation and decide to pay too little for the home while claiming that the sale was authorized by the executor, other items may need to be sold off to compensate for the money that would have been otherwise generated by the home’s sale. Probate sales commonly happen out of a state of need rather than a heart of greed. The house may be being sold if there aren’t any heirs, but those situations are usually attempts to put the property under new management instead of letting it fall into disrepair.

Respect the Executor

Assuming that you’re buying from an executor, be respectful to what they’re asking for. This might be their attempt at trying to satisfy hungry creditors. Time may not be on the executor’s side, as they may have outstanding paperwork to be done, beneficiaries to assist, and taxes and debts that need to be paid. That executor might be looking at your checkbook as a way to keep a family off the streets. It’s completely possible that you’re buying someone’s childhood home which is being sold to help keep the children out of debt.

Keep in mind that the home could lack various improvements, and it may take a few weeks for you to even get the chance to get the purchase approved by the court. This can be a perfect way to find a home to be fixed up or flipped, but be aware that it might not be in the best of shape. Moreover, be sure to check that it’s actually insured and check the insurance policy documents to verify that what is being said is true. You don’t want to buy an uninsured mansion only to find that it went up in flames before you could start moving inside.

Minnesota Probate Lawyers

Should you ever find yourself in a standstill or standoff during a probate sale, the first person you may want to consult is a Minnesota probate lawyer.

There’s something to be said about having a probate lawyer from the start. Rather, assuming that you’ve tried to work on things by yourself from the start, it could be very well be a good idea to see if someone else can provide advice on the sale. Seek out someone from Flanders Law Firm LLC by calling their main line at 612-424-0398.

Even if you’re not wanting the sale to go forward, they might be able to provide comfort in these trying times. Maybe they can help you find a way to keep more assets than you originally thought possible.

Sources

https://mncourts.gov/Help-Topics/Probate-Wills-and-Estates.aspx

Formal versus Informal Probate in Minnesota

Posted on February 25, 2022 by jlawyer

Formal versus Informal probate in Minnesota

There are many different types of probate administration’s under Minnesota Probate Code.

However, the two most common filings are formal probate and informal probate. This article we’ll discuss the difference between formal and informal probates.

Informal probates in Minnesota

An informal probate can be commenced by any interested party under the Minnesota probate. Interest interested parties include the nominated personal representative or executor in the will. Heirs of the deceased devotees of the deceased or a creditor of the deceased.

The statutory priority for appointment of a personal representative is the person nominated in the Will. If there is no Will, the priority of who can serve starts with: the surviving spouse and then the children of the deceased.

Once the applicant has been chosen, the applicant may file for an informal probate administration with the county of venue. Proper county venue will be the county where the deceased held lived the majority of their life.

The informal process utilizes a probate registrar which is a court appointed judicial officer who oversees and informal administrations in the county. The registrar acts as the judge and makes a determination whether the applicant may proceed forward with an informal administration.

In most case, an informal administration is utilized to have a quicker appointment of the personal representative. This can happen in both a testate or intestate probates. Dying “testate” means that the person died with a Will. “Intestate” means someone died without a Will.

The probate registrar will review the application and the facts of the case to make the determination. The registrar will also review whether proper notice of the probate has been given to the interested parties. Furthermore, notice will need to be published in a newspaper of general circulation in the county.

Sometimes the probate registrar will reject the filing due to problems in the estate. Common rejection items including problems with the Will, disputes between heirs, questions about ownership of property and, perhaps, large creditor claims against the deceased. There could be other issues that come up in the probate that a judge will need to make a determination of law to the facts.

Finally, it is important to keep in mind that the difference in time – in terms of how long the probate takes – may not be significantly different. It depends on the county that the probate is filed in and the facts of the case. A competent Minnesota probate lawyer should be consulted in all cases.

Formal probate administration in Minnesota

A formal probate administration is commenced with the filing of a petition for appointment of personal representative. In formal estate, the petitioner asks a district court judge to issue an order. This is different from a probate registrar issuing a “statement of probate.” In a formal administration, the judge will also make a determination that proper filings have been made, that the Will was properly executed, and that the heirs, creditors, and devisees are correct.

Judge will hold a hearing for the appointment of the personal representative. Once the hearing has taken place, and there are no problems or objections to the petition, the court will issue in order appointing the personal representative. The judge will also issue the Minnesota Letters Testamentary or the Minnesota Letters of General Administration. These letters will give the personal representative the power to act on behalf of the estate. The personal representative will serve as a fiduciary in both an informal and formal administration. The personal representative is required to look out for the best interest of all parties.

As discussed above, in a formal probate may be necessary due to problems with the deceased person’s Will. Also, disputes between heirs can create the need for a formal probate. Finally, large debts or creditor claims can necessitate a formal probate.

An attorney who has dealt with many probates will be able to spot issues and facts to make a determination of whether formal or informal administration is required. Additionally, it is important to keep in mind that there may not be a timing difference between formal and informal administration. At times, it could be best to file a formal administration because the personal representative may need additional powers which will be graded by a judge and which cannot be granted by the probate registrar.

Also, in most cases, the costs of the formal versus informal administration will be very similar. The attorney fees will be very similar. The fees are entirely fact specific.

Formal probate administration | Supervised or Unsupervised

It is also important to understand that in certain formal administrations, a party can request that the personal representative serve in a supervised or unsupervised administration.

In many cases, the personal representative may proceed in an unsupervised manner. This means that the court has very little oversight about the case. The court will also have very little oversight over the person representative and their actions. In an unsupervised estate, the personal representative can make payments to creditors and distributions to heirs without approval from the court.

Conversely, in a supervised probate administration, the personal representative is required to seek approval for all distributions. The court will have more supervision over the actions of the estate and the personal representative. More court hearings will likely need to be held.

The total costs of a supervised versus unsupervised administration is likely to be higher. This is due to the extra work involved with asking the court for permission on various issues. Supervised administrations may be advisable in cases where there are disputes between heirs, creditors, or what to do with the money in the estate.

Minnesota Probate Lawyers

Contact the Minnesota probate lawyers at Flanders Law Firm LLC if you have questions about the difference between formal and informal probate administration’s in Minnesota. You may also contact the office for answers about supervised and unsupervised estates in Minnesota. The firm has years of experience helping clients in all sizes of estates.

Call today for your free consultation at 612-424-0398.

Dealing with Creditors | Estate Probate Law

Posted on February 24, 2022 by jlawyer

As a general assumption, you may not enjoy dealing with creditors.

If you’re one of the few who breaks that generalization, that may be for your benefit and may make you a prime candidate for handling Minnesota probate law cases where the deceased had large amounts of debt.

How, nonetheless, creditors deal with things during probate might be a little different than what you’re used to. This could be very true as they may not have to fight anyone who can find ways to avoid paying off the debt.

The creditor may even come to realize that, as an interested person, they have power to get the probate case into motion. That said, you may need to know how to beat them at their own game.

Dealing with Creditors | Estate Probate Law

At the end of the day, the creditors want the cash that’s due to them. The trouble in their eyes is that the family may not want to establish the estate. That’s to say someone may want to go ahead and open up the probate process.

Minnesota probate could be the only way that they get their paycheck. From their perspective, if the family doesn’t want to pay up, because the bulk of humanity rarely enjoys the thought of paying creditors, the creditor has to do something.

So, establishing the estate might be their last resort to getting the money they’re due. And since any given creditor may qualify as an interested person, they may use their power to go ahead and open the estate.

Keep in mind that probate can be conducted with or without a will. It’s really whether or not there are enough assets or if there’s enough cash to pay a given creditor.

Even if the estate is eventually as marked as being insolvent, there still might be some cash that the creditors can obtain no matter how small that amount may be. Insolvent estates don’t help to prevent the creditors from getting a dime. There are simply no Minnesota probate assets. Rather, they’re exemplifications of the fact that the deceased lacked enough assets to fully pay off the creditor. Thus, beneficiaries shouldn’t anticipate anything.

Creditor Law and the Personal Representative (Executor)

Probate Creditors might not only talk to the people you want them to talk to. As far as you’re concerned, they might be acting like wolves on the hunt, preying on the vulnerable members of your family.

Assume that if they get the chance to talk to someone and gather data about the deceased or convince them to try and pay off the debts, any given creditor may go ahead and take that chance.

Working on getting the estate to pay up might be their goal, and that may mean harassment isn’t something they’ll forego.

Should any harassment take place, don’t hesitate to contact your lawyer. Have them personally create a letter to tell the creditors to cease this kind of contact. Keep in mind that the creditor will be the one who will be in the wrong.

There’s a legal act which is meant to stop them from talking about the deceased’s debt with at least three parties: friends, relatives, and neighbors. There’s a clause to that, as creditors are still allowed to civilly discuss debt with the deceased’s guardian, executor, administrator, spouse, and, in cases where the deceased was a minor, parents.

Personal Representative (Executor) Duties in Minnesota

Because of the potential concern about conflict of interest, a creditor might not be able to become a representative of the estate. You see, probate is all about settling things related to the deceased, and handling the debts is very much a part of that.

So, if a creditor had the power to decide what things would be sold off and how much was going to be given to transferred to them by what was generated from a sale, they could sell as much as they deem fit and, metaphorically speaking, make out like bandits.

The court will, most likely, allow for a friend or blood relation to serve as the deceased’s personal representative instead of creditors.

That said, be aware of what kind of powers a personal representative has in these cases, as they can make decisions regarding paying creditors, selling property to pay off debt, redistributing assets to heirs, handling taxes, paying bills, locating missing heirs, and closing out the estate.

Should you be in rather stressful financial circumstances, the last person you probably want to serve as the personal representative may be the creditor.

MN Probate Law and Bankruptcy

Should there not be enough assets to fully satisfy all of the outstanding debt, the only option left may be to declare the estate as being insolvent.

No, that doesn’t mean that the beneficiaries will be able to lay claim to the property, but they’ll be able to have peace of mind of not having to deal with the creditors anymore. This means that the entire estate may have to be sold off so that part of the debts can be finally paid. The creditors are trying to get everything they can get, regardless of how small.

If this is truly your only option, don’t assume that anything will be inherited. Even if you don’t have to declare the estate as insolvent, be prepared for every cash account to be emptied out and every piece of property to be sold off until the deceased’s debts are no more.

It’s hypothetically that the deceased owned two mansions and a fleet of cars, but after all the debts are paid, all that remained was a rusty Corvette and some miscellaneous possessions.

Such a picture, moreover, may be paradise compared to what happens to an insolvent estate, as even those items might be sold off to the highest bidder.

Minnesota Probate Lawyers

Get an assistant from Flanders Law Firm LLC and the Minnesota probate lawyers at the firm to teach you how to figure out what needs to be done. You want to find out how to both satisfy the creditors and keep the beneficiaries happy.

This isn’t a laughing matter. You need to work on keeping what you can in the family and only sell the least amount of assets as possible. No one can assume they’ll get anything until the creditors get their fair share.

Whatever kind of Minnesota probate case you might have in front of you, make sure that you have a probate lawyer to help you out. Even if a creditor has gone ahead of you and started the case, there’s still time to contact someone at

Contact the law firm for a free initial consultation at: 612-424-0398.

Sources:

https://www.consumer.ftc.gov/articles/debts-and-deceased-relatives

Guardianships in Minnesota

Posted on February 18, 2022 by jlawyer

Guardianships in Minnesota

This article will discuss the key concepts behind guardianships in Minnesota.

A person who has a Minnesota guardian is most-often incapacitated by age or mental infirmity. A person may be incapacitated due to mental illness, disability, or other condition they were born with. The other common situation is when a child (minor) needs a guardian due to being under the age of 18 years.

Guardian for Minors

It may be necessary to establish a guardian for a minor if a child’s parents have died. This situation is often tragic and family members of the deceased parents become the court-appointed guardians.

Our office has dealt with situations where two parents passed-away from cancer and there were several children who were under the age of 18. The relatives of children, the aunts and uncles, took over responsibility of caring for the minor children until they were 18. In situations involving the death of both parents, guardians are absolutely necessary so that an adult has legal responsibility over the minor’s welfare.

Health care institutions and schools are required to communicate only with parents or “legal guardians” for minors. A court-order is needed to establish legal rights. The guardian must have legal authority to communicate with these institutions. Minnesota Statute 524.3-313 describes the powers of Minnesota guardian.

How do you obtain legal authority as a guardian? First, you must petition the proper court. The court will then issue Letters of Guardianship to the new Guardians. The petition for guardianship must be made in the proper court or “venue”. This will be the county where the children live. The county court can be changed to where the new guardians live if the children’s residence has been moved.

Once established, the county court has continuing jurisdiction over the guardianship case until the children are 18. During their childhood, personal-well-being reports need to be filed with the court, on a yearly basis. The personal well-being reports help the court understand how the children are doing. It also ensures that the court knows where they are, what their address is, and what their condition is.

Guardianship of and Adult (Persons over 18 years old)

Our office has seen numerous instances where persons with disabilities reach the age of 18 years. That person likely needs continuing care due to their disability. In this case, a guardianship is necessary.

Common disability symptoms include: Autism Spectrum Disorder, Down Syndrome, or other mental health diagnosis. An experienced physician must make a disability diagnosis and issue a report of that diagnosis to the court. Essentially, the diagnosis must state that the person has diminished capacity which makes them unable to care for themselves.

The process of petitioning the appropriate County District Court is very similar to what was described above. Just as with a minor, a person will need to petition for a guardianship over an adult. The petition will outline the appropriate legal arguments for why the guardianship is necessary. The petition will include a physician’s statement proving the diagnosis for disability of the person. Notice of the court action will need to be served upon all next of kin or relatives of the adult person. As an aside, this adult person is often referred to as a “ward“.

Once the petition is filed in the appropriate court, the court will appoint a guardian over the ward and the annual well-being report will need to be filed with that County District Court.

Guardianship Over Elderly Persons

The second most common adult guardianship in Minnesota is a guardianship over incapacitated, elderly person. Incapacitation is a legal standard which is defined by Minnesota statute. Basically, there is a legal test for whether a person has become so mentally incapacitated that they can no longer care for their own needs. A diagnosis from a physician will also be necessary in this scenario. A common diagnosis could be Dementia, Alzheimer’s disease, or other mental defect.

We often counsel adult children who are serving as guardians for their parents. Children reverse roles and now take over as care-givers for the day-to-day needs of their elderly parents. This is often very daunting for the children and parents. However, the children may choose to work with assisted-living or other long-term-care facilities. In these conversations, decisions can be made about who maintains the day-to-day care. The children might only make big-picture decisions for their elderly parents.

Sometimes the children will care for their parents in a home where the elderly parent has lived most of their lives. There are options for care and people are not limited by what they can do, legally. Instead, the only limitations are often financial: what can the parents or children afford for care?

As described above, the court grants legal authority to children for their parents. The court issues Letters of Guardianship. Minnesota guardianships can be very helpful for allowing the children to help their parents manage their on-going care. Every situation is unique. The legal system is there to help people. The courts provide a systematic approach for establishing and maintaining guardianships in Minnesota.

Minnesota Guardianship Lawyers

The decision to ask a court for a guardianship is difficult. There are very significant new responsibilities that the guardian will take on. This is a big responsibility and the courts take it very seriously.

Our office has years of experience dealing with many different situations involving guardianships in Minnesota. The office has also dealt with emergency guardianships. We understands that it can be very scary. We know what to do to help.

Contact the Minnesota guardianship lawyers today for your free initial consultation. The telephone number is 612-424-0398.