Minnesota Probate Cases: Why It’s Rarely Wise to Represent Yourself

Posted on June 22, 2015 by jlawyer

Nearly every day, American TV shows feature people fighting in court over various matters, including Minnesota probate cases.

As the judge questions each party, it mays it look like it’s fairly easy to represent yourself in court. However, these shows rarely tell you that they’ve provided these litigants with a highly simplified process for presenting their cases.

In real life, it’s often quite difficult to responsibly handle a complex probate matter on your own without obtaining legal advice from an attorney. Few lay people have enough legal training and experience to successfully undertake this type of complicated legal process. Far too often, serious problems develop when a person representing herself fails to promptly respond to new court requests for additional information or motions filed by other parties. Furthermore, probate cases can be especially difficult since they often stir up longstanding family disagreements.

Minnesota Courts: Factors That Help People Decide if They Can Handle Their Own Cases

The Minnesota Judicial Branch provides the public with a Self Help Center website page. It describes factors that can help you decide whether you’re truly capable of handling any type of difficult case (including probate) on your own. Here are some of the key issues that prevent many litigants from choosing to appear “pro se” or “self-represented” in court.

Many probate cases are quite complicated. If you’re trying to probate a loved one’s Will and numerous, bickering family members are involved, you may have to endure some very painful and compromising arguments that could split your family apart for decades. Fortunately, most experienced Minnesota probate attorneys have experience working with difficult or demanding family members and they can help shield you from most of the stressful interactions with your family members and others;

Court paperwork can be difficult to understand. Although most courts try to explain matters clearly, it can be difficult to understand unfamiliar terms. Once you hire an attorney, he will know how to respond in a timely fashion to all paperwork received and all claims filed by various parties or creditors interested in the case;

You must have strong organizational skills and not feel shy when speaking in front of others in public. While probating a case mainly involves handling a significant amount of paperwork outside of the courtroom, there will be times when you’ll be required to appear and answer questions put to you by the court if you try and represent yourself. This can require time-consuming research and preparation, especially if you haven’t consulted with a probate attorney about any of the most complicated matters involved;

Some legal research and analytical skills may be required. If you’re intimidated by the papers (or packet of materials) the court gives you to help with representing yourself – and you’re unable to read statutes or court cases with clear understanding, you may need to seriously consider hiring a lawyer;

It can be very difficult to hold down a full-time job while your probate case is pending. If your child gets sick at the last minute or you can’t get time off work one day, you’ll quickly learn how hard it can be to get a court to reset an important hearing or meeting;

You’re uncertain if a court interpreter can meet all of your needs. While these court employees (or outside contractors) work very hard to help those who can’t easily speak English or write clearly – they aren’t authorized to provide any type of legal advice;

Parties handling probate matters often need strong negotiating skills.

If one or more of these issues greatly trouble you, it’s nearly always best to hire an experienced Minnesota probate lawyer to represent you.

Minnesota Probate Attorneys

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

Why Married Couples Should Discuss All of Their Estate Planning Goals

Posted on May 18, 2015 by jlawyer

Most Minnesota estate planning attorneys encourage couples to create separate Wills since many of them enter marriage with separate property and others inherit it later on.

In addition, a number of today’s newlyweds often have children from prior marriages that they’d like to provide for in the future — and creating separate Wills makes this much easier.

Regardless of your age upon marrying, you and your spouse can more easily achieve your various estate planning and financial goals by discussing them prior to obtaining separate Wills. This often proves crucial since both spouses often work for many years and need to make early decisions about setting up employer-sponsored 401(k) and other benefits.

Your early discussions can facilitate saving up for discretionary travels and even a possible second, vacation home. Your Minnesota estate planning attorney can help you get started by explaining the different types of estate planning tools that are currently available.

Critical Topics Couples Should Discuss Regarding Their Estate-Planning Goals

Decisions involving any children you may have. Apart from discussing how many children, if any, you may want, it’s important to realize that you’ll need to agree on the best ways to provide for your children’s education – preferably in a manner that won’t interfere with your retirement savings plans. You should even specifically discuss what percentage of your children’s college or graduate school expenses you’ll be willing to shoulder, based upon your current and future income;
Where do you hope to live once you reach your 70s or later years – and how do you want to try and finance that lifestyle? Growing older always happens much faster than we expect. This is why you and your spouse should give thought early on to where you hope to live day once health and mobility issues make changes necessary;
Discuss your willingness to purchasing long-term care insurance policies now. These are often quite expensive and can usually only be purchased before you enter your “golden years.” If you don’t buy these, the surviving spouse may one day have to spend a considerable amount of your combined wealth to pay the inevitable “last medical” expenses so many health insurance policies always try to avoid covering. Of course, you should both also plan on buying the most comprehensive (yet cost effective) basic healthcare insurance policies you can afford;
What extended family obligations do you both need to address? Often at least one spouse will have an elderly parent needing some financial assistance. If that spouse doesn’t have any separate property or wealth, you’ll need to decide what the two of you can start doing now to try and provide for this person’s needs. Likewise, if either of you have a child who is disabled in any way, you must also discuss how to make future provisions for that person;
Travel and vacation goals. Do you have long-term travel goals you both wish to start financing now?
Future schooling for either spouse. Is there a chance either one of you will return to school one day — either to complete a degree or obtain training in an entirely new field? Be sure to discuss how you might create a highly flexible education savings plan that could accommodate this future possibility;
Investment decision making. Which one of you should possibly take the lead with making investments for the two of you?

Minnesota Estate Planning for Married Couples

Although this list isn’t intended to be fully comprehensive, it should help newly married couples start setting priorities early on – while also obtaining their Minnesota estate-planning attorney’s advice on which tools can best help meet most or all of these goals. It may also be wise to hire a financial planner who can provide additional insights while you’re obtaining a full portfolio of estate planning documents from your lawyer.

To talk more with a Minnesota attorney on this topic, call the law firm at 612-424-0398.

Minnesota Probate | Nomination of Personal Representative

Posted on May 12, 2015 by jlawyer

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

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

Nomination of a Minnesota Probate Personal Representative

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

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

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

(3) other devisees of the decedent;

(4) the surviving spouse of the decedent;

(5) other heirs of the decedent;

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

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

The persons who are “qualified to nominate” include:

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

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

Priority to Serve as Personal Representative

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

Formal Probate Administration

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

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

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

Minnesota Probate Attorneys

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

Personal Representative Liability for Failure to Pay Probate Estate Taxes

Posted on January 26, 2015 by jlawyer

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

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

Facts of the Case

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

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

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

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

The IRS can Charge Interest on Late Payments

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

The law on failing to pay estate taxes

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

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

Personal Representative Liability Law

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

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

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

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

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

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

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

Seek out competent legal counsel

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

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

Minnesota Probate | Domicile, Residency, and Ancillary Administrations

Posted on November 18, 2014 by jlawyer

In this article, I wanted to discuss the legal doctrines of jurisdiction and where a probate should be submitted to court in Minnesota. There was recently an article about Minnesota tax law as it applies to this issue.

Residency and Domicile in a Minnesota Probate

In Minnesota, when a person passes away, their estate needs to be probated in the county where they resided.

The justification for probating in the county where the person resided is that they will have likely paid taxes on their home, on vehicles, and participated in the day-to-day operations of life in the county.

The legal word “domicile” is complicated but it can be boiled down to where a person intended to stay and live. As stated above, this can become complicated when a person may have a home in Minnesota but that person may spend a significant amount of time in Florida, Arizona, Texas, or some other state with much warmer weather the Minnesota in the winter. This creates complications associated with tax liability as Minnesota has a high personal income tax as a state.

Furthermore, at times, the deceased person may have had a cabin or other property in Minnesota.

Although the person may have had a cabin or other property, the laws of domicile and residency still provide that the person this day should be probated in the county in which they resided permanently. Again, this can create confusion people tend to move around a fair amount when they retire. If you have questions about the meaning of domicile and residency, a Minnesota probate attorney should be consulted.

As stated above, once a proper county court is chosen, the executor or personal representative of the estate needs to properly petition the court for a probate administration. I have previously written articles on what needs to be contained in a petition for a new probate.

Ancillary Administrations and Minnesota Probate Law

In addition to the discussion above about domicile and residency, the questions of ancillary probate administration comes into play. This is because a deceased Minnesota resident may have a home in a different state – for instance, Florida.

If the deceased person owned a home in Florida, then the title to the property will need to be transferred from Florida to the person’s estate in Minnesota. Again, this is because Minnesota law wants to control a person’s estate.

In this instance, an attorney in who is licensed to practice law in Florida should be consulted because a separate, “ancilllary” probate will need to be conducted. This is an extra expense but it is a necessary expense.

Further information about ancillary probate and residency

Contact the Flanders Law Firm LLC or attorney Joseph M. Flanders, a Dakota County Minnesota probate law firm, for more information about ancillary probates, domicile, and the meaning of residency as it applies to Minnesota law. Telephone: 612-424-0398.

Minnesota Probate Law | Do you need a lawyer for a Minnesota Probate?

Posted on October 23, 2014 by jlawyer

Do you need a lawyer to help you for your estate administration of “probate” case?

The answer: it depends. Also, as an aside, click on the link for more information on what “probate” means.

The question on whether or not to hire an attorney is always a difficult one. I am asked this question frequently by both current and potential clients. My answer is usually the same: it always helps to have an attorney and you’re going to do way better with one that without one. That being said my statement can be viewed as self-serving.

What are some of the benefits of hiring a probate attorney?

Experience in the field of probate law is the number one reason to hire an attorney. The probate or “estate administration” process is extremely complex. That cannot be overstated. When I first began practicing law as a new law school graduate, the ins-and-outs of what I was supposed to know and understand to competently administer an estate was completely foreign to me – and I had a background training in the law. The point here is that lawyers learn on the job, just like everyone else, and it took me, personally, a number of years to be good at that job. Is it reasonable to think that someone without a law degree and experience can do it? I think the answer is clear.

Below are some examples of the different types of probate proceedings in Minnesota. Lawyers are not even aware of these proceedings – it is necessary to refer this kind of a work to an attorney who understands what he is doing.

Some of the different kinds of probate proceedings in Minnesota include:

informal estates
formal estates
small estates
supervised estate
unsupervised estates.

Furthermore, the estate may be modified from an informal, unsupervised probate to our formal, supervise probate depending on the complexity of the case as it proceeds over many months.

What are some of the other questions to ask a probate attorney?

Essentially, as I described in earlier post on this topic, Minnesota probate attorneys are earnestly looking for personal identifying information of the heirs, personal representative, the deceased person. Next, the probate attorney will look for the assets and debts of the estate.

The attorney needs to know many different questions to include in a probate petition which notifies the court and the judge of how you proceed. The attorney will be making a determination as mind as to what he would recommend for obvious date would proceed which is something completely foreign to almost every client or person I’ve ever met with. After all, why would this person real to make a rational decision based on experience when they have done.

Are there times when a probate attorney may not be necessary?

The only time that attorney should not be consulted in state is when it may be transferred bye affidavit. In Minnesota, if your estate is worth under $50,000 in assets, the estate will likely not need to be probated but, instead, be transferred by a small estate affidavit. I have also discussed this and numerous articles in the past which can be located at the link provided above. The attorney like we should still be consulted on how to draft the small estate affidavit and move forward with that affidavit.

In all other instances, with assets over $50,000 in the state of Minnesota, a probate attorney should be consulted and hired. This is a difficult pill to swallow for many people that have never been involved with the process but it is certainly the correct advice – self-serving or not.

Free Initial Consultations

Contact the Flanders Law Firm today. The firm employs Dakota County Minnesota probate attorneys. The firm offers free consultations to all potential clients. Call (612) 424-0398.

7 Initial Duties of a First-Time Minnesota Personal Representative

Posted on October 22, 2014 by jlawyer

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

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

7 Initial Steps of the Personal Representative:

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

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

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

What to expect from a consultation with a probate attorney

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

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

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

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

Free Initial Consultations

Contact the Flanders Law Firm today. The firm employs Dakota County Minnesota probate attorneys. The firm offers free consultations to all potential clients. Call (612) 424-0398.