Decree of Descent | Minnesota Probate

Posted on August 18, 2016 by jlawyer

Decree of Descent Minnesota Probate Law Many people are unaware that there are different types of probates in Minnesota. Not every probate is the same. For this post, I will be discussing Decree of Descent and Summary Administration proceedings as they relate to Minnesota probate law.

What is a Minnesota probate?

The first question that people should ask is what is probate?

The probate proceeding is a construction of Minnesota law which outlines the steps and procedures which need to be taken to administer a deceased person’s estate. All probate , money, belonging to a deceased person, needs to be probated in some fashion. Generally, people with estates worth under $50,000 can proceed with a small estate and no probate administration is required.

What if the deceased person’s assets are worth more than $50,000? Once the threshold level of $50,000 is reached, the probate attorney will begin to think about how to properly administer persons estate in a court of law. The first thing that I go through, as an attorney is whether a formal or informal probate is necessary, whether Decree of Descent proceeding is available, or whether a Summary Administration maybe available.

Decree of Descent

Again, remember that a probate proceeding is the legal proceeding to deal with the deceased person’s assets and that upon their death.

Minnesota law tells us that a separate proceeding may be commenced if the deceased died over three years ago but they’re still probate assets. In my experience, it is common that people do not know what they’re supposed to do legally after a person’s death. Often, people do not want to do anything and do not understand that the lawyer may need to get involved. Because of this, probate assets can lie dormant for many years but they still need to be probated.

A Decree of Descent proceeding is a legal vehicle whereby a personal representative or interested party of a deceased person’s estate can petition the court for an order instructing the heris and other interested parties how to convey the deceased person’s assets. This is normally a quicker proceeding because the creditor claims period is different. The law takes viewpoint that creditors should have tried to collect against a person’s estate within three years. If they did not, too bad.

If a creditor has not made an attempt to collect a debt, the law considers that that, in most instances,the probate court will not require the creditor claim period. That is the main purpose of a Decree of Descent proceeding. As I stated previously, it is a quicker and less expensive.

Minnesota probate and summary administration’s

Much like a Decree of Descent proceeding, a Summary Administration maybe be available if the deceased person’s assets, and home, are exempt from creditor claims.

There are certain exempt assets in every Minnesota estate. The deceased person may have had probate assets belonging to him or her; however, much like a tax return, the deceased person’s estate has exemptions which are not subject to creditor claims. For example, a the homestead of the deceased is exempt from all creditor claims in most instances. Therefore, the home will not need to be sold to pay creditor claims, medical bills, and other debts.

Like a Decree of Descent proceeding, this process is generally quicker and less expensive for the deceased because it takes less time and attorney work.

Minnesota Decree of Descent and Summary Administration lawyers

Please contact Joseph M Flanders at Flanders Law Firm LLC to discuss whether your loved ones the state may qualify for a Decree of Descent or Summary Administration proceeding. There are specific facts which apply to every case and an experienced probate attorney should be consulted. Please call the firm today at 612-424-0398 for your free initial consultation.

MN Probate Law | Starting a Probate in Minnesota

Posted on August 11, 2016 by jlawyer

Many of the people who contact the law firm have questions about starting a probate in Minnesota. The simple answer is that an attorney must be hired and that certain intake questions must be filled out by the proposed personal representative.

The Personal Representative

The personal representative, often referred to as an “executor” or “executrix”, is the person nominated in the will to serve the estate and the other heirs. If there is no will the law in Minnesota tells us that children have equal priority to serve as personal representatives. This means that the deceased person’s children may each serve or that the children may come to an agreement on who serves as the personal representative

Starting a Probate in Minnesota

As stated above, the personal representative should contact a experienced and qualified probate attorney. The attorney will typically have an intake form asking personal information about the deceased, their heirs, and the creditors of the estate. It is very important to have accurate information gathered because this information will be the building-block for the entire case. The law firm has had many instances in which an heir had the wrong address listed and it was difficult to communicate with them due to this. The personal representative’s job is often difficult, tedious, and not something most people are used to.

The Probate Petition

Once the personal representative and the attorney work together to gather all necessary information, the attorney will begin drafting the necessary paperwork to get into court and have the court issue “letters testamentary” or “letters of general administration” to the personal representative.

The personal representative has to meet certain qualifications and follow certain laws prior to being appointed by the court. The personal representative will not receive the letters testamentary or letters of general administration until the proper legal steps are followed.

The most important provisions of the petition are to identify the deceased, the heirs, and creditors. Next, the personal representative must submit the petition to the proper County District Court. Finally, the personal representative must publish notice in the newspaper and give written notice to all interest interested parties.

What are interested parties? Minnesota law defines interested parties as any person who may have a claim to assets of the estate or debts of the estate. The persons having claims to assets of the estate are often thought of as the “heirs”. The people having claims against the debts of the estate are often referred to as “creditors”. Each of these categories have specific laws and rules that apply and a probate attorney should be consulted to interpret the law.

The initial probate court hearing

Once the proper probate information is gathered, an attorney is hired, and the proper steps are taken in the probate petition, the personal representative will have to attend a court hearing in the County District Court. The County District Court rules pertaining to what happens at a court hearing are different for each county. This can be very frustrating for most people – and many attorneys. The law firm has experience working with the different court rules in each county in the different judges in each county. This experience can be invaluable to quickly and efficiently start and finish a probate estate.

Questions about Starting a Probate in Minnesota?

Contact Flanders law firm LLC for a free initial consultation about starting a probate in Minnesota. The law firm has experienced attorneys who know the ins-and-outs of the probate law and how to commence in the probate and get it done. Call the firm today at 612-424-0398.

MN Probate Law | Distributions to a Minor

Posted on June 15, 2016 by jlawyer

Minnesota law has specific laws about how a personal representative (executor) is to handle distributions to a minor from an estate.

Specifically, if the personal representative is required to transfer money to a minor pursuant to the terms of a deceased’s Will or intestate succession, the distribution can be made by transferring not more than $5,000 per year to:

(1) A person who has the care and custody of the minor and with whom the minor lives;

(2) a guardian of the minor

(3) a custodian under the Minnesota Uniform Transfers to Minors Act;

(4) a financial institution as a deposit in an interest-bearing account in the sole name of the minor and giving notice of this deposit to the minor.

However, the personal representative should keep in mind that the option listed above are not available if a Conservator has been appointed for the minor. In this case, the Conservator must receive the funds.

Personal Property Distribution to a Minor

When a minor child receives or is entitled to personal property, the court may order the personal representative to deposit such property in a savings account or deposit at a bank. The court can also order that the personal representative can give up to $2,000 to the minor’s parents as custodians for the funds.

Uniform Transfers to Minors Act

Minnesota has a specific law on transfers to minors – the Uniform Transfers to Minors Act. If a Will or Trust or intestate succession authorizes a transfer to a minor, the personal representative may transfer the money/assets to a custodian pursuant to Minnesota Statutes 527.29. This transfer must be for the benefit of the minor. The transfer will be made if the personal representative believes it will be in the “best interest” of the minor and if it is not specifically prohibited by the language of the Will or Trust.

Finally, if the transfer is $10,000 or less, it does not have to be approved by the probate court.

Appointment of a Guardian or Conservator

Attorneys will often advise families to petition the court for a person or persons to be appointed conservator and/or guardian of a minor in cases where the minor will receive a large amount of funds.

The venue for a conservatorship is where the minor resides. However, if the minor does not reside in Minnesota, the court can have venue in the county where the property of the deceased resides. This is often the same county as the probate court and the probate lawyers can work with the family to handle both the estate and the guardianship in the same court.

Free Initial Consultations

Questions about first time personal representative duties? Contact the Flanders Law Firm today. The firm offers free consultations to all potential clients and Dakota County probates. Call (612) 424-0398.

Minnesota Estate Tax | IRS and Consistent Basis Reporting

Posted on June 10, 2016 by jlawyer

As reported by attorney Richard Hawke of the Minnesota State Bar Association (MSBA), the Internal Revenue Service (IRS) released “temporary” and possible future regulations regarding basis consistency and reporting regulations. Click on this link for the article. The proposed legislation would be codified under Internal Revenue Code (IRC), sections 1014 and 6035. These regulations were to take effect on March 2, 2016 with a possible update coming on May 31, 2016.

As reported by attorney Hawke:

“In an ongoing effort to ensure that estate executors and beneficiaries who receive property from an estate report a consistent basis to the IRS, Congress enacted tax code Section 6035. Section 6035 requires the executor of an estate, who is required to file an estate tax return, to provide statements to the IRS and to each beneficiary on the values of any estate property.”

In response to Minnesota probate attorney concerns about this regulation, attorney Hawke reported that:

“On March 2, 2016, the IRS released proposed REG-127923-15, which provides guidance to practitioners on the reporting requirements. The IRS did exclude certain assets based on the comments it received, specifically, the IRS stated that cash, income in respect of a decedent, tangible personal property not requiring an appraisal, and property sold or disposed of by the estate in a transaction where capital gain or loss is recognized—and not distributed to the beneficiary—does not have to be reported. Additionally, tax returns filed solely to claim portability are exempt from the basis consistency requirements”

This issue is ongoing and fluid. We will update this post with more information when we have it.

Free Initial Consultations

Contact the Flanders Law Firm today. The firm offers free consultations to all potential clients. Call the firm at 612-424-0398.

How to Probate a Will in Minnesota

Posted on June 1, 2016 by jlawyer

Probating a will in Minnesota is, unfortunately, a complicated process.

Most people we speak with are handling an estate for the first time. Many have no idea where to start and do not understand what they are supposed to do. Often, a loved one has named them as the personal representative but they don’t even know what that means. Read on for some answers to these common problems.

How to probate a will in Minnesota

The first thing that a executor or personal representative should do is review the deceased person’s estate plan or their Will. The deceased person may also have a trust or other “testamentary” document. Next, the person should read the Will to see one who the chosen executor or personal representative is and who the heirs of the estate will be. Locating names and addresses for all individuals is very important as they will be sent all information about the estate.

From there, the person in charge of the estate should determine whether or not there are surf sufficient assets to require the probate of the estate.

When it is a probate required?

A probate is required when their assets in excess of $50,000. Assets may include such things as bank accounts, retirement accounts, real estate, the home in which the deceased person lived, and all other monetary assets -including personal pride property.

If, after totaling up all of the assets, the estate is worth over $50,000, the probate will be necessary. If, the assets are worth less than $50,000 for probate will not be necessary. However, a personal representative should still speak with an attorney about a small estate administration as there are legalities that need to be taken care of upon a person’s death even if their estate is worth less than $50,000.

If the probate is necessary what should you do next?

After determining that that the assets of the estate are in excess of $50,000, the person in charge of the estate should contact the probate attorney. Do not try to handle an estate alone. The probate process is difficult to understand even for seasoned lawyers.

A petition for a probate must be filed in the county in which the deceased lived. Once filed with the county court, notice of the estate will need to be published a newspaper of general circulation in the county in which the deceased person had property. Notice of the estate and the petition will need to be sent to all heirs, creditors, and other interested parties of the estate.

The law office has discussed the requirements of a probate petition in previous posts, please read those files for further information on the requirements of what needs to be contained in a probate petition.

The probate inventory and final accounting

The executor or personal representative will need to keep track of all assets and debts of the deceased, pay debts, gather assets, and inventory those assets in a document which will be provided to the court. This document will also be sent to all heirs and interested parties of the estate. Again, this document is called an Inventory.

After the estate assets have been inventoried, the personal representative will work with the probate attorney to fall the law, pay all debts, work with the court system, and, eventually, make distributions to all heirs of the estate.

No distributions from the estate should be made to errors or any other parties until the probate process has been completed. This process can take months if not years and the right steps need to be followed. If the right steps are not followed, the personal representative or executor could be held personally liable to the heirs, the federal government, the state of Minnesota, and the court system at large for failure to properly administer the estate. Generic lawyer shit

How to Probate a Will in Minnesota

Contact the Flanders Law Firm today. The firm offers free consultations to all potential clients. Call (612) 424-0398.

Minnesota Probate | Applying for Life Insurance: Declaring Health Conditions

Posted on May 19, 2016 by jlawyer

Applying for Life Insurance: Declaring Health Conditions

While the insurance industry provides an important service to society, they’re still in business to make a profit just like the rest of us. For that reason, whether applying for term life or whole life insurance, you must honestly answer questions about all current and past medical conditions and diagnoses. The same holds true for certain addictive behaviors. If you fail to do so, there’s a strong chance that your beneficiaries won’t be able to collect any benefits.

There Are Many Reasons Why Insurers Demand Certified Copies of Death Certificates

Insurance companies demand these documents to do more than just verify that someone has passed away. They also want to review the stated causes of death. Therefore, if you’ve told your doctor that you smoke — be sure to declare that reality when requesting a life insurance policy. Otherwise, problems can arise later if you die of lung disease – and failed to disclose that fact.

The same holds true regarding many other conditions. Here’s a look at some of the numerous ailments often listed on forms that insurance policy applicants must fill out when applying for coverage. Once you see all of the diseases and conditions – you’ll begin to see how profits can be made — since far too many people are tempted to withhold key information.

Medical Conditions and Health-Related Practices Insurance Companies Often Ask About

Diagnostic testing during the past 12 months for an “unidentified condition.” Fortunately, if you just went for a routine (versus a diagnostic) mammogram – or any other basic test as part of your annual physical, you probably won’t have to declare something here. However, if your doctor suspects some type of growth or cancer, you better think twice about what you disclose – and discuss your proposed answer with your doctor – and your Minnesota attorney. Even a “white lie” could prevent later recovery of benefits;
Carefully review your past use (for the past five years) of alcohol and illegal drugs. Many life insurance companies now specifically ask about these issues. They even inquire if you’ve ever been “convicted of a felony, DUI, reckless driving” – or treated for any substance abuse. Take these questions seriously since an absolutely staggering number of Americans have addictions (and related convictions) and must disclose them;
Recent mental health diagnosis or treatment, including care for dementia. Life insurance applications often ask about the past five years of your life – if you’ve ever missed “more than one week of work” due to anxiety, depression, or bipolar disorder. Considering the fact that a large percentage of people suffer from one or more of these ailments, complete candor can be challenging. Always ask your Minnesota attorney about what you need to disclose about your specific medical history;
Inquiries are also often made regarding a diagnosis of AIDS (Acquired Immune Deficiency Syndrome), HIV infection, cirrhosis, Hepatitis C, stroke, brain tumor, leukemia, or cancer. As you can see, these applications are likely to require disclosures by many applicants. While a company may still offer you a policy, they might insert specific provisions to minimize their potential losses – in keeping with your state’s governing statutes;
Diabetes. Sadly, the questions about this illness can reach back for about 15 years or more. Ask your lawyer what must be disclosed;
Central nervous disorders, ALS, lupus, chronic kidney disease, lung or respiratory disorders – or heart or circulatory disorders. Interestingly enough, they’ll often give you “a pass” when you disclose an asthma or high blood pressure diagnosis.

As this information indicates, it’s usually wisest to first apply for a life insurance policy when you’re very young. It doesn’t take long for various “health liabilities” to develop. Of course, some people do succeed in first applying for life insurance past age fifty. However, you can be sure they’re either very healthy – or they’ve probably had to release certain medical records for further scrutiny before being offered a policy.

Minnesota and North Dakota Probate Attorneys

Joseph M. Flanders is licensed to practice law in Minnesota, North Dakota, and Indiana. Flanders Law Firm LLC is a Minnesota probate law firm. Contact the law firm today at: 612-424-0398

How to Appoint a Special Administrator under Minnesota Probate Law

Posted on April 28, 2016 by jlawyer

Minnesota Probate Special Administration

There are times where it may be necessary to appoint a Minnesota probate special administrator instead a more traditional “personal representative” of a Minnesota probate.

The circumstances with this becomes an issue are limited. This article will discuss the instances in which a special administrator can be appointed over a deceased person’s estate and, also, what the person’s duties are.

Minnesota statute section 524.3-614, states that a special administrator can be appointed as follows:

524.3-614 SPECIAL ADMINISTRATOR; APPOINTMENT.

A special administrator may be appointed:

(1) informally by the registrar on the application of any interested person when necessary to protect the estate of a decedent prior to the appointment of a general personal representative, when necessary to protect the estate of a decedent due to circumstances described in section 524.2-803, or if a prior appointment has been terminated as provided in section 524.3-609;

(2) in a formal proceeding by order of the court on the petition of any interested person and finding, after notice and hearing, that appointment is necessary to preserve the estate or to secure its proper administration including its administration in circumstances where a general personal representative cannot or should not act. If it appears to the court that an emergency exists or that section 524.2-803 may apply, appointment may be ordered without notice.

The instances in which my office has asked for the appointment of a special administrator are in the “emergency” situations. Typically, a more traditional personal representative would be appointed. However, things like problems with a Will, or lack thereof, can lead to the appointment of a special administrator. In one particular circumstance, our office helped a client who needed to remove a loved-one from the city morgue and they were unable to do so without being appointed as a special administrator by a Minnesota court. This was an extreme example, but it illustrates why this area of the law may arise.

The next logical question is who can be appointed as a special administrator?

524.3-615 SPECIAL ADMINISTRATOR; WHO MAY BE APPOINTED.

(a) Except as provided in paragraph (b), if a special administrator is to be appointed pending the probate of a will which is the subject of a pending application or petition for probate, the person named executor in the will shall be appointed if available, and qualified.

(b) In cases where the court determines a personal representative named in a will may not be entitled to benefits pursuant to section 524.2-803, the court may appoint a qualified neutral, professional fiduciary, or an interested person to serve as special administrator.

(c) In other cases, any proper person may be appointed special administrator.

As you can see, Minnesota probate law provides very specific terms in which a special administrator can be appointed. The special administrator law does limit that person’s power over the estate. Our law firm has had experience asking that a special administrator be appointed, and then modifying the estate so that a new personal representative be appointed.

Finally, the special administrator has specifically delineated duties that he or she will be obligated to perform on behalf o the deceased person’s estate.

524.3-617 SPECIAL ADMINISTRATOR; FORMAL PROCEEDINGS; POWER AND DUTIES.

A special administrator appointed by order of the court in any formal proceeding has the power of a general personal representative except as limited in the appointment and duties as prescribed in the order. The appointment may be for a specified time, to perform particular acts or on other terms as the court may direct.

As you can see, a special administration may be appointed in an informal or formal probate administration depending on the situation. For further questions on this issue, a Minnesota probate attorney should be contacted.

Minnesota Probate Lawyers

Contact Flanders law firm LLC today to discuss your particular situation and possible appointment as a special administrator. Contact the firm at 612-424-0398.