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.

What are the fiduciary duties of a Minnesota personal representative?

Posted on October 10, 2014 by jlawyer

In any Minnesota probate, a personal representative will be appointed to run the estate.

If there are over $75,000 in probate assets, the estate will need to be probated by the personal representative. The assets of the estate will be distributed to the heirs of the deceased person. Distribution can be effectuated by the deceased person’s Will or via an intestate administration. An intestate administration means someone died without a Will. Typically, a person will work with an attorney to follow the law and understand what they must do according to the law.

We often discuss the legal concept of “fiduciary duties” with out clients. The personal representative must serve as a “fiduciary” for all heirs, creditors, and other interested parties.

Fiduciary duties of a Minnesota personal representative?

In a typical probate, the personal representative will have a fiduciary duty obligation to the heirs.

A typical situation my office sees is where the children of the deceased person are the only heirs. In this scenario, the eldest child is often “nominated” by the deceased person to be the personal representative.

The personal representative must pay expenses of the estate and then distribute assets and money to their siblings. While working on the estate, the personal representative owes fiduciary duties to their siblings – whether they like them or not. Sibling rivalry can often get in the way of a proper administration.

It is also important to remember that the personal representative has a difficult job and that the money in the estate does not belong to them.

The personal representative is serving the estate. There are many instances of probate litigation (lawsuits) where the personal representative may not be doing what they are supposed to be doing. When thinking about the term fiduciary duty, please try to remember that it means to be honest and fair with the deceased person’s money.

Duties owed to creditors in a Minnesota probate estate

The personal representative will also owe a fiduciary duty to creditors of the estate. If there is over $75,000 in probate assets, the personal representative is required to distribute assets and pay creditors.

Commonly, the debts of the estate include a mortgage on home, credit-card bills, utilities, and other contractual debts of the deceased person. Sometimes, the estate has very little debt because, as people age, they often pay off the home and other debs.

There are also certain probate asset exemptions which we discussed in previous articles. Exemptions include: the homestead of the decedent, $10,000 of personal property, and one automobile. Life insurance is also an exemption. This means that assets will not be collectible, in most instances, by creditors.

Paying creditors claims is relatively simple. If the personal representative has knowledge of money owed to any person or business, those debts should be paid out of the estate. However, there are also instances when a personal representative does not have knowledge of debts owed by the deceased person. In these instances, the notice of publication – which is published in the newspaper – will be published so that unknown creditors have four months in Minnesota to file a claim against the estate.

It is very important for the personal representative to work hard to discover debts that need to be paid. After payment of debts (minus exemptions), the remaining money will then be distributed to heirs.

As a warning to people who may be considering serving as a personal representative – not paying estate debts is where liability of the personal representative most often arises. This is because, at times, the personal representative may not be diligent in discovering otherwise known creditors. Obviously, this can be a very large problem. The court may hold the personal representative liable for not doing their job correctly.

An personal representative may want to speak with a probate attorney

For further information about the meaning of personal representative duties, and fiduciary duties, contact Joseph M. Flanders, a Minnesota probate lawyer, at 612-424-0398.

The firm offers free initial consultations in all cases.

Everything You (Never) Wanted To Know About Disinheritance

Posted on September 8, 2014 by jlawyer

No one wants to think about ever having to disinherit a loved one, after all, doing so can create serious friction in the family and lead to irreparably hurt feelings.

However, there are some cases where disinheritance may be in order, in which case, it helps to be armed with information. To find out more about how it works in Minnesota, keep reading.

Minnesota Probate Law | Can you disinherit a spouse?

Though we’d hope it never gets to the point that you want to, it is possible you might be interested in disinheriting a spouse. Is such a thing possible in Minnesota? Fortunately (or unfortunately, as the case may be), spouses can never be disinherited in Minnesota. This is because your spouse has a legal right to his or her spousal share of your estate. This means even if you specifically leave assets to others and change your beneficiary designations, your spouse will still be able to claim a certain share of the value of the estate.

The rule in Minnesota says that a spouse has the right to a percentage of the augmented estate, meaning the value of your assets plus the value of his or her stuff. The percentage is based on a sliding scale and starts at three percent of the augmented estate for those married for only a year. At year 15 the percentage caps out at 50 percent of the augmented estate.

This percentage is guaranteed regardless of what is written in your will and, assuming the spouse has little of his or her own, will guarantee he or she walks away with half of your estate. If that’s a problem, you might want to consider meeting with a Minnesota family law attorney rather than an estate planning lawyer.

Minnesota Probate Law | What about children?

Though it’s hard to imagine why anyone would want to disinherit a child, the reality is that there are sometimes legitimate reasons for such a decision. One example is if there is simply no relationship between the parent and child and including the child in the will would run contrary to the person’s wishes.

A second, and much less depressing situation, is if one child is especially well off financially and does not need the same level of support as other children. By excluding the wealthy child from your inheritance you can leave more to the children who may really need it.

Unlike spouses, children can be disinherited. Doing so may obviously lead to hostility, especially if the disinheritance comes as a surprise. To ease the pain, it may be best to sit down with the family and explain your rationale for the decision early on, giving everyone time to process and, eventually, accept your choice.

How do you go about disinheriting someone?

If you’re looking to disinherit someone, likely a child, there are several ways to go about it. One way is to simply exclude their name from your will and all other documents regarding your estate. Don’t name them as beneficiaries on your life insurance or retirement accounts. Though this approach can work, it can also lead to confusion and unnecessary fighting. If someone is merely left out of a will, it’s possible that they would think it was the result of a simple oversight and could thus lead to a lengthy fight among the heirs.

Rather than allow for so much potential confusion, the better way to go about disinheriting someone is to specifically name him or her in your will and other estate planning documents. By including them by name and then stating that you wish to leave them with nothing, you are eliminating the possibility that this could be contested later on as vague. Your wishes, though harsh, will have been made unequivocally clear.

An experienced Minnesota probate lawyer can help walk you through the complicated process of establishing a workable estate plan. 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.
Source: “Disinheriting someone is not easy,” by Geoff Williams, published at Reuters.com.

See Our Related Blog Posts:

Minnesota Probate Law | When is Probate Necessary?

What’s a living trust and how does it work in Minnesota?