Minnesota Probate | Making Distributions to Minor Heirs

Posted on by jlawyer

Minnesota Giving Money to MinorsOur office has often been asked this questions:  how do I give money, from an estate, to a minor?

The answer is that it is complicated.  Like most legal problems.  Let’s look at the solution.

Minor Heirs

Minnesota law tells us that a “minor” is a person under the age of 18 years.  When a minor is to receive or is entitled to a distribution of property from an estate, a court of law may order that the personal representative (executor) of the estate deposit all of the money, or a part of the money, into some kind of account for the benefit of the minor.  When that minor reaches the age of 18 years, typically, the minor will then receive that money.

The court can require deposit into a savings account, savings certificate or other certificate of deposit in a bank, or to invest it in U.S. savings bonds.  Minnesota Statute 524.3-915(b) is the law on this issue.

Currently, the court can also order that up to $2,000.00 in estate property be paid to the minor’s parents, custodian, or other guardian with whom the minor is living, to be used for the benefit of the minor.

Uniform Transfer to Minors Act

If a Will or Trust says that it is allowed, the personal representative, may transfer money to a custodian of a minor.  That custodian is to use the money the minor would otherwise receive, by placing it into a savings or other qualified account on behalf of the minor.  The Act is codified under Minnesota Statute 527.25.

If there is no Will, the custodian can still transfer property belonging to the minor as long as the dictates of Minnesota law are followed.

If a personal representative believes, in good faith, that the transfer is necessary, and it is not prohibited by a Will, Trust, or other testamentary document, the personal representative is allowed to do it.  Minnesota Statute 524.26(c).

Finally, if the transfer is less than $10,000.00, the personal representative does not need to seek approval from the court.

Appointment of a Guardian or Conservator

When we have dealt with transfers to minors in Minnesota probates, we often work with a court-appointed Guardian and/or Conservator.  We have discussed Minnesota Conservator issues in other articles.

In brief, a court can appoint someone the Guardian/Conservator of a minor shortly after a parents death under Minnesota Statute 524.5-201.  This process is often not known by many practicing attorney; however, it is certainly one that should be looked-into.  The benefit of this statutory process, is a court can appoint a Guardian, ex parte, immediately and without court hearing.  The benefits to such an Order are many.  Often, when a parent dies, things can be a financial mess.  Furthermore, the child might need an immediate care-giver.  Therefore, Minnesota law has developed an “expiated” process to resolve the mess.  If you have questions about this process, you should speak with a qualified guardian and/or conservatorship lawyer.

Minnesota Probate Lawyers

Joseph M. Flanders and Flanders Law Firm LLC have years of experience dealing with estate issues and transfer to minors.  The process can be very confusing and people are often grieving for a loved-one who has just died.  Mr. Flanders is a compassionate advocate for people in need and he wants to help them.  For a free initial consultation, please call the firm at 612-424-0398.

How to Be Appointed as Personal Representative | MN Probate

Posted on by jlawyer

How to Be Appointed Personal RepresentativeYou just found out another person has been named Personal Representative for your loved one’s probate proceedings. Maybe you wanted to be appointed. Maybe you just don’t trust them. What can you do?

Formal Probate Process

In a Formal Probate process, Minnesota law provides specific rules for how the personal representative is chosen. Priority as personal representative will first be given to the individual (or entity) that the decedent may have named in their will.

This is one more reason why having a valid will in place is so important. If the decedent did not name a personal representative in their will, priority for personal representative is given in the following order: first the surviving spouse, second other individuals that will receive a disbursement from the estate, other heirs of the decedent, or if no other party has come forward, any conservator of the decedent or other creditor.

If in this priority, you are unhappy with the appointment of the personal representative, you can file an objection to the appointment with the Court. In considering your objection, the Court will look at a few valid arguments in considering removal.

These objections include: (1) the estate does not have adequate assets to discharge all of the anticipated creditor claims, (2) an objection to have appointed instead an heir or devise that is expected to receive half or more of the estate, or (3) where there are disputes between heirs or devises of the estate, the Court can require an agreement between the parties for personal representative.

Informal Probate

If the estate is proceeding by informal probate, and you want to dispute the personal representative, your process may be more difficult. You will have to file a petition with the Court stating that your are objecting to the personal representative in the informal proceedings. The Court will then schedule a hearing regarding your objection, and the Court will consider your dispute.

Personal Representative Duties

The personal representative has very specific duties and responsibilities, the failure of which can cause issues in the probate process. The personal representative acts as a fiduciary for the estate, which means that person must act in the interests of the estate first, and act prudently for the estate. This includes collecting and protecting the assets of the estate.

The personal representative must then faithfully follow the terms of the will to distribute the assets, and follow the rules of distribution for the estate. This includes first paying debts and expenses for the estate, and concluding with distribution of the assets remaining of the estate.

Personal Representative Fiduciary Duties

If you believe the personal representative is not or has not faithfully performed on all their duties, you can file such concern with the Court for review. The personal representative may be required to give an accounting to the Court of the estate to prove the process followed by the personal representative.

If you are concerned about the appointment of a personal representative, or have questions about their performance and administration of the estate, contact an attorney today to see what your options are for dispute.

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.

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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Minnesota Ancillary Probate

Posted on by jlawyer

Minnesota Ancillary ProbateAncillary Probate

It’s common knowledge that probate can be an unpleasant process.

Many people work hard to avoid it at all costs, creating estate plans built around ensuring that loved ones aren’t stuck dealing with probate court for months or years into the future. But what’s even worse than probate? Ancillary probate. What’s ancillary probate? Keep reading to find out.

First things first, what is “ancillary” probate? Ancillary probate refers to a second probate proceeding involving the same person. Why two probate hearings for only one estate?

Just lucky I guess? No, just the opposite. Ancillary probate occurs because the second probate proceeding takes place in a second state. Ancillary probate takes place when one person’s assets exist in multiple jurisdictions and probate cannot be consolidated.

That means the executor of the estate will need to deal with two probate proceedings, sometimes at the same time, other times they can be dealt with consecutively.

Minnesota Ancillary Probate

Why is ancillary probate necessary? In many cases, it isn’t. If you died while living your whole life in one state, with bank accounts, real estate and physical assets all in the same area, then no ancillary probate will be required.

If, however, your assets, particularly those involving real estate, are spread across the country, then go ahead and brace your loved ones for multiple probate proceedings. If a deceased person owned real estate or other tangible property in a state other than where he or she lived, then a second probate proceeding is required. That’s because real estate is governed by the probate laws of the state that it is located in.

To Probate or Not to Probate

Is ancillary probate a good thing? Absolutely not. Though it may not always be a terrible burden, there is almost certainly no benefit to having to go through the probate process a second time.

What about downsides? One downside is that the estate will likely need to pay for a second probate attorney to handle the case in the second state. Another downside? Additional court costs. Filing fees and other expenses will need to be paid a second time around. What’s another downside? That it can delay the time it takes for beneficiaries to get their share of the inheritance.

Avoiding Ancillary Probate?

What about avenues for avoiding the ancillary probate? One way is to have a good estate planning lawyer consider probate-avoidance strategies. One example would be to put a house in a living trust. Another idea is to use a transfer-on-death deed.

Finally, you could consider adding a co-owner to the piece of property, avoiding probate entirely. If you fail to consider these measures while you’re still around, it’ll be too late to do much about it as your relatives will be stuck probating the real estate.

Minnesota Ancillary Probate Lawyer

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.

Searching For Lost Assets: Life Insurance and Annuities | MN Probate Law

Posted on by jlawyer

When a family member dies without an estate plan in place, the family may be left scrambling to determine what assets the family member even owned during their life.

With no estate plan, the family may not even know if they had any life insurance policies. If you find yourself searching for any life insurance policies, the Minnesota Commerce Department offers a free online service that Minnesota residents can use to assist them in locating a lost life insurance policy or annuity contract belonging to a deceased family member.

Minnesota Life Insurance Locator

The Life Insurance Policy Locator was created by the National Association of Insurance Commissioners (NAIC) in 2016 to assist people in locating benefits. The service allows individuals who believe they may be beneficiaries, executors or legal representatives of a deceased person to perform a confidential search for life insurance policies and annuities.

What will you need:

A certified death certificate for the deceased is the best resource to complete the request. This may be attained through the funeral home that conducted the burial or cremation of the deceased individual or by contacting the vital statistics office in the deceased’s county.

You may also review the deceased individuals’ bank statements and check safety deposit boxes for personal information, which may contain information about a life insurance policy and enable you to directly contact the insurance company without utilizing the Life Insurance Policy Locator.

So how do we get it:

To begin your search, you can follow this link: https://eapps.naic.org/life-policy-locator/#/welcome. You will need to provide as much information as possible to guarantee the most accurate results. Only one request is required for your family member. The search will encompass all participating life insurance and annuity companies, and it doesn’t matter where the family member may have lived before, or when they purchased the policy. The only note to remember is that not all life insurance companies participate in this process.

What happens if they find something:

The NAIC will send an e-mail to the person who submitted the inquiry, including the request details and will also notify participating life insurance and annuity companies of the request, asking the companies to determine whether they have an individual life insurance policy or annuity contract in the name of the deceased family member.

The insurance company will directly contact the beneficiaries or their authorized representatives when a match is discovered. A response will only be given if relevant information is discovered and could take up to 90 business days. You will not receive a response relevant information is not discovered. If you still have questions you can contact the Minnesota Department of Commerce or call our office.

Minnesota Probate Lawyers

An experienced Minnesota life insurance 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.


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.

Contesting a Will in Minnesota | Common Will Contest Do’s and Dont’s

Posted on by jlawyer

Contesting a Will in MinnesotaContesting a Will in Minnesota

If you have written a will or are thinking about doing so, you likely want to be sure that it’s done well. After all, the goal of a will is to ensure that your wishes are honored when you’re no longer around.

If a will is found to be invalid, it could mean that your wishes are altered or ignored entirely, throwing your carefully crafted plans into doubt. To avoid having your will invalidated, keep the following issues in mind.

Coercion

Wills can be invalidated if it is found that the person who created the will (known as the testator) was coerced or created the will under duress. This coercion can take many forms, but if the end result is that the testator felt forced into creating the will or drafting it in a certain way, it is likely to be found invalid.

Fraud

Fraud is a pretty clear reason for a will to be found invalid. If a will has been tampered with or altered in some way, then a court will likely rule that it has been invalidated. It’s for this reason that it is important to ensure that any changes made to the will are executed properly.

Lack of capacity

A common reason why wills are challenged has to do with the testator’s mental capacity. If the person creating the will is not of a sound mind, then any document he or she drafts or signs will not be found valid. Judges will scrutinize claims concerning lack of capacity as they want to ensure that those with diminished capacity are not preyed upon by greedy relatives.

Improper Execution

A final reason why a will may be found invalid is if it was improperly executed. In Minnesota, a will must be in writing, it must be signed by the testator or by someone else in the testator’s presence and at the testator’s direction, and it must be signed by at least two witnesses within a reasonable time of witnessing the testator’s signing. If the will was executed any other way, you run the risk of a legal challenge.

What if you want to prevent a challenge before it starts?

If you’re in the process of drafting a will and want to do everything possible to avoid loved ones contesting the will down the road, what should you do? First things first, do everything you can to avoid invalidating the will. Assuming you’ve checked those boxes, another thing to consider is including a no-contest clause in the will. What does this do? Though it does not guarantee that no one will challenge the will, it does work to seriously disencourage heirs from doing so. The clause works such that anyone who has challenged a will is automatically disinherited. It means that fighting to get more may instead lead to getting nothing at all.

Minnesota Will Contest 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.