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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.

Personal Representative Liability | MN Probate Law

Posted on by jlawyer

Personal Representative Liability

Personal representative liability in a Minnesota Probate

“Liability” is a very serious concern. Black’s Law dictionary defines “liability” as:

The state of being bound or obliged in law or justice to do, pay, or make good something; legal responsibility. Wood v. Currey, 57 Cal. 209; McElfresh v. Kirkendall, 36 Iowa, 225 …

It is important to understand that a personal representative or an executor of an estate could be held “liable” or “obligated in law or justice” to pay for certain debts if he/she is doing things improperly. What does improperly mean? It is complicated, but improper personal representative conduct can include things like:

  • Breach of Fiduciary Duty
  • Negligence
  • Failure to pay creditor claims
  • Failure to make distributions properly
  • Excessive cost and fees for the administration of the estate

All of the above are only a few examples of improper behavior of a personal representative which could cause liability. Minnesota probate law if very clear that personal representatives needs to serve the estate – not themselves.

Failing to serve the estate can result in a claim for breach of fiduciary duty. When someone signs a petition to probate the estate in a Minnesota court, they also must sign a document called an “Acceptance of Appointment and Oath.” This oath is taken very seriously by the courts. The personal representative is swearing, under oath, that they fill follow the law.

Breach of Fiduciary Duty

The most common example of personal representative liability in a Minnesota probate is a claim for breach of fiduciary duty. What does this mean?

Basically, a “fiduciary” is alike a bank: they are required to hold money, in trust, for others. They most be honest and diligent and invest in a prudent manner.

They must pay bills and act in a lawful fashion. Unfortunately, a number of personal representatives often view estates as a “free lunch” and act less than honestly. Doing so can create claims for breach of fiduciary duty.  The big example is not handling estate cash properly.

Some common examples of breach of fiduciary duty are:

  • Self-dealing
  • Improperly using estate money
  • Combining estate funds with personal funds
  • Failing to invest properly
  • The failure to act in the interested parties’ (heirs) best interests
  • Lying about estate assets
  • Not locating estate assets
  • Favoring one beneficiary over others

Above are only some of the examples we have seen as Minnesota probate attorneys.

Minnesota Probate Lawyers

Of course, it is always a good idea to talk with an experienced probate attorney if you have any questions about personal representative liability.

Joseph M. Flanders and Flanders Law Firm LLC have helped both personal representatives and heirs deal with this thorny legal issue. A lot of money can be at stake in estate and people need to deal with it properly.

Contact the probate law firm today for your free initial legal consultation. 612-424-0398.

MN Probate Law | What Can Slow Down the Probate Process

Posted on by jlawyer

What Can Slow Down the Probate ProcessWhat Can Slow Down the Probate Process

Expect the Unexpected

You’ve probably heard that you should expect the unexpected in some way, shape, or form before. This is also true when it comes to the probate process. When you work with a probate attorney, they might be able to predict what will slow down the process.

However, that doesn’t mean that you should expect that everything will go fast as possible. Roadblocks can come up on a whim. For best results, consider starting or at least preparing for the probate process early on, before stuff has time to come up. An attorney might even end up helping the process to go faster, saving you valuable time.

The Will to Problem

Just because a will exists doesn’t mean that everything will go easily. Issues can normally be avoided preemptively by getting the will professionally written. Nonetheless, there are still cases in which the will is not properly prepared, leaving for issues to potentially arise. If you’re still just preparing for the probate process and the owner of the will is still alive, there’s always the chance that you could help them rewrite the will.

However, if the owner of the will is no longer able to rewrite the will, you might end up getting stuck with the will in its current state. One of the best things that you can do is have a professional look at the will to assess it. When in doubt, assume that issues surrounding the will shall come about.

Lots of Benefactors

Being liked by many people and having lots of family are not themselves bad things. But as far as speeding through the probate process, having multiple beneficiaries isn’t going to make things go any faster. If anything, having lots of beneficiaries is going to cause things to take more time.

Realize that every beneficiary needs to be notified. Miss one or if you run into trouble finding one, then things will most likely take longer than you originally planned. You might even run into having to get the beneficiaries sign documents and if anyone decides to take their time and be lazy, you’re going to need to push them to move forward.

Wills Galore

Even if the will is legitimate, there’s also the chance that there could be several wills to shift through. Here’s the catch: the court has to sort through each will. In the case that the court is unsure which will is the latest will, they need to figure out which one is the most current. At the same time, there’s another small catch. The court will also need to verify whether or not the will accurately represents deceased’s desires. There can be updates to previous wills, causing updates to be incomplete apart from the will itself. So, even if you have a part of the will, you might not have all the pieces to the puzzle. Don’t assume that there’s only one document.

Strange Assets

The child inside of all of us probably has wanted to be a treasure hunter at some point in time. You’d probably give up trying to win the lottery if you found out a relative was going to pass down a valuable heirloom. At the same time, comprehend that dealing with abnormal or valuable items can slow down the probate process significantly. You’re not talking in terms of mere cash. Items need to be valued. And as each rare asset comes to the forefront, each object has the potential of slowing things down.

You might find that the assets can’t be assessed all at the same time. Don’t focus about having to fight your family over rare items. Prepare yourself for having to deal with assets that aren’t easy to acquire or liquidate.

Speed Up the Process

You probably want as much time as you can get. You don’t need to wait forever to complete the probate process. Simply call a lawyer about probate law, schedule your free consultation, and see if they can speed up the process.

The law firm of Flanders Law Firm LLC might be the best place to help you move forward. Dial 612-424-0398 to get the ball rolling. That way, you can hopefully speed up the probate process without wasting your valuable time. If you have the time now, consider using it to save time later on.

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.

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.

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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