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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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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.

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.

Posting a Bond in a Minnesota Probate

Posted on by jlawyer

Bonds and MN ProbatePosting a Bond in a Minnesota Probate

In some estate the law firm has worked on, the personal representative has been required to post a bond.  This post explains (1) what a probate bond is and (2) why one might be required.

A Probate Bond

In some cases, the court may require the the personal representative (executor) of the estate post a bond equal to the amount of the estate assets.  Therefore, if the estate is worth $500,000.00, then the court could require a $500,000.00 bond.  Why?  Because the court wants to ensure that the personal representative does the right thing, follows the law, and doesn’t lose or worse, steal the money from the estate.

A bond is surety posted by the personal representative against the estate assets.  The personal representative will literally have to post collateral against the bond in case they make a mistake in the estate.  This is a bid deal and something people should take very seriously.

Why Might a Probate Bond be Required?

In formal, supervised administration in Minnesota, a bond is almost always required.  However, most estate are not formal and supervised by the court.  In fact, I would guess that only around 10% of estates proceed in this fashion.

Therefore, the question becomes:  why is a bond required in this minority of estates?  One reason for a bond is that there may be family members or other parties that are “fighting” and the personal representative must post a bond to preserve assets.  Many times, when heirs and other parties are fighting a professional personal representative will be appointed by the court.  A professional must always be bonded and the estate will always be a formal, supervised estate.

Another instance when the law firm has seen bonds required is when the estate is insolvent.  For instance, the estate may have a home, but there are debts worth more than the home.  In essence, the court may require a bond so that the creditors of the estate are protected.  It is easy to see why a party might not want to sell a home or other assets just to be the deceased person’s bills.  After all, what fun is that?  Yet, the court might require a bond in this case.

Finally, the last common instance when a bond is required is when the deceased person gave money to people under the age of 18.  In this case, the court will likely want to ensure that the children receive the money they are owed.  Courts treat children very carefully because they are not legally able to represent themselves.

Minnesota Bond Lawyers

The law firm has attorneys with years of experience dealing with probates of all kinds.  If you have questions about the requirements of a bond or other probate issues, contact the law firm today at 612-424-0398.