Minnesota Guardianship | What is a legal guardian?

Posted on January 16, 2017 by jlawyer

Guardianship in Minnesota

In certain situations, a court may appoint a person to make personal decisions for a person incapable of making their own personal decisions. These people are known as guardians and their position is naturally, referred to as a Minnesota guardianship. They provide a valuable service. This article intends to define a guardian, their duties, what they can do on behalf of a person, and what the limitations are.

Guardians Roles in Minnesota

There are different types of guardian roles within Minnesota, depending on what service the guardian is providing. The definition of guardian in Minnesota is “a person who has qualified as a guardian of a minor or incapacitated person pursuant to appointment by a parent or spouse, or by the court . . . .”Minn. Stat. § 524.5-102 subd. 5. A guardian makes personal decision on behalf a ward – generally thought to be the incapacitated person. Minn. Stat. § 524.102 subd. 17. Another type of guardian is a conservator. A conservator relates more to estate planning. Minnesota statutes defines conservator as a person who manages a protected person’s estate. Minn. Stat. § 524.5-102 subd. 3.

The court imposes certain procedural requirements upon a guardian. For example, the guardian must submit what is known as a Personal Well Being Report to the Court on the ward’s health, mood, recovery, or other matters. Minn. Stat. § 524.5-316 (a). Similarly, although the guardian may generally make decisions regarding the ward’s assets, he or she must provide at least ten days notice to the ward before doing so. Min Stat. § 524.5.313(c)(3).

Law on Guardians in Minnesota

In re Guardianship of Jeffrey DeYoung, 801 N.W.2d 211 (Minn. Ct. App. 2011) provides an overview of the guardian’s duties. The mother appealed the district court’s refusal to remove the guardian in charge of her adult son, who was severely disabled. Id. at 212. The ward’s father and the guardian opposed the proposed removal. Id. at 213. In addition, the mother sought to assume the guardian role upon removal of the ward’s current guardian. Id.

Evidence indicated the guardian restricted the mother’s visitation time after observing possible abuse of the ward. Id. The mother’s primary contention was that the guardian, in placing the ward in a supervised home designed for disabled people, improperly delegated her duty as a guardian third parties. Id. at 217–18.

The Court of Appeals agreed. First, the Court of Appeals noted Minnesota prevents “any individual of agency which provides residence, custodial care . . .or other care or service for which they receive a fee.” Id. at 217 (citing Minn. Stat. § 524.5-309 (2010)). Because a guardian enjoys duties and power given it to it by the judicial branch, a guardian cannot delegate powers to a third person. Id. Although the guardian may adopt recommendations from health care professionals or other experts, the guardian cannot completely delegate their authority. Id. at 218.

In re DeYoung provides a nice distinction on the guardian’s duties to a disabled in healthcare, financial, or other matters. They may obtain information from third parties regarding appropriate courses of action, but they may not wholly delegate the duties of a guardianship to another person.

Minnesota Guardianship Lawyers

Contact Flanders Law Firm LLC today for your free initial consultation on legal guardianship in Minnesota. We are happy to answer any questions you may have. Call the attorneys at 612-424-0398.

What happens when someone dies without a Will in Minnesota?

Posted on January 5, 2017 by jlawyer

Intestate Estates

When someone dies without a Will in Minnesota, it means they died “intestate”. (This is as opposed to someone dying with a Will. In such a case, that person died “testate”).

Who receives and inheritance if a person dies without a Will?

They law on intestate “succession” is somewhat complicated. This is mainly due to the conflict between what a “surviving spouse” must legally receive versus what surviving children may receive.

In essence, the surviving spouse, if there was one, has first-priority to many probate assets which belonged the deceased person (decedent). We have written other posts about the rights of surviving spouses. If you have specific questions about surviving spouse rights, read those posts or call the law office.

Intestate Succession for Deceased Person’s without a surviving spouse

The purpose of this article is to outline what happens if a person dies without a Will and did not have a surviving spouse. In this case, the children of the deceased receive the entire probate estate. End of story.

However, in many cases, the law office receives telephone calls from heirs who are not children or surviving spouses. Essentially, mainly people want to know who gets what if there were not children or surviving spouse.

The deceased person had no children

This is where things get interesting. Basically, Minnesota Statute 524.102 tells us that:

The deceased person’s remaining assets will be distributed:

to the decedent’s descendant’s by representation;
if there is no surviving descendant, to the decedent’s parents equally if both survive, or to the surviving parent;
if there is not surviving descendant or parent, to the descendants of the decedent’s parents or either of them by representation;
if there is no surviving descendant, parent, or descendant of a parent, bu the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent’s paternal grandparents and half to the maternal grandparents, by representation.

These are the four main categories of possible heirs. Basically, here is the rundown of who receives and inheritance under Minnesota law if a person died intestate:

the surviving spouse
the surviving children
the deceased’s parents
the deceased’s siblings
the deceased’s nieces and nephews
the deceased grandparents or, more likely, one-half to each side of the grandparents family, by representation.

Please be cautioned that the above-explanation is not perfect. There are slight differences in the statute. If you have any questions about this, a Minnesota probate lawyers should be consulted.

Free Initial Consultations

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

Minnesota Probate Law | Testate v. Intestate?

Posted on December 12, 2016 by jlawyer

Testate v. Intestate

Did the person die testate or intestate? What will the decedent’s share of the intestate amount to? Were there any named beneficiaries? If these terms seem unfamiliar, that is natural.

They are terms commonly used in relation to wills, trusts and probate proceedings. Although the arcane language can seem intimidating, it is very manageable. The purpose of this article is to explain what intestate means, discuss case law in Minnesota, and propose how to avoid intestate succession in your own family.

In plain English, intestate succession refers to a person who dies and does not leave a will. Where the individual has neglected to leave a will, Minnesota provides for a statutory remedy for disposition of assets in the event of intestate succession. Under Minnesota law, an intestate estate is “any part of the decedent’s estate not allowed to the decedent’s spouse or descendants and not disposed of by will.” Minn. Stat. § 524.2-101(a). Therefore, the intestate estate will pass to the decedent’s heirs. As always, there is a statutory provision in Minnesota defining heirs as those entitled to intestate succession. Minn. Stat. 524.1-201(28).

Although it can vary, heirs are generally thought of as relatives to the decedent. Minnesota statutes provide for intestate succession as well. Of course, there are more arcane legal words. For example, after a spouse, Minnesota intestate succession next devises to issue. “Issue” is a legal term for a decedent’s lineal decedents.

Minnesota Probate Case Law

An intestate will may spring up issues to unsuspecting heirs. In re Beachside I Homeowners Assn’s, 802 N.W.2d 771 (2011) is an example of this. The decedent passed away intestate, thus triggering Minnesota’ intestate succession process. Id. at 772.

Therefore, under the succession statute, one half of the condominium passed to the decedent’ brother, and the other half went to the decedent’s nephews. Id. This may have been more than the decedent’s nephew bargain for, as the nephew fell behind on the payment, causing a tax lien to be placed on the property. Id. Even though this result may not have been beneficial to the heir, the Court of Appeals walked through the logic for why the heir maintained a valid interest in the property. The Court of Appeals explained, “in the absence of [probate] the heirs and devises are entitled to intestate succession . . . intestacy may establish title thereto by proof of decedent’s ownership and death, and their relationship to the decedent.” Id. at 774.

In re Beachside exemplifies why leaving a testate will if preferable for those considering these issues. The nephew inherited a property that he could not maintain and pay for, likely causing a huge headache for those involved. Generally, leaving a testate will is preferable.

For those considering such matters, contact a knowledgeable Minnesota probate attorney for assistance.

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.

What is a Personal Representative | Minnesota Probate Law

Posted on October 14, 2016 by jlawyer

What is a Personal Representative?

Pursuant to Minnesota probate law, the personal representative is the person who is chosen by the deceased and/or appointed by the court to run the estate. The term “personal representative” is also how Minnesota law refers to this person. The terms “executor” or “executrix” are not used in Minnesota.

This personal representative is also referred to as “the executor, administrator, successor personal representative, [or] special administrator” of a deceased person’s estate.

Duties and Powers of the Personal Representative

The duties and powers of the personal representative are defined in Minnesota Statutes Sections 524.3-701 to 524.3-721. It is the personal representative’s job to settle and distribute the deceased person’s estate. The personal representative must follow the instructions of the Will and/or the Minnesota intestacy laws if the deceased person did not have a Will. The term “intestacy” means that the person died without a Will. Different laws are applied in “intestacy” estates versus estates where the deceased had a Will.

The personal representative is also required to perform his or her duties “expeditiously and efficiently as possible while at all times acting in the best interest of the estate.” It can be a big problem when the personal representative does not properly do his or her job. Except as is differently stated in a Will, every personal representative has the right to take control of the deceased person’s possessions, property, and debts. This will enable the personal representative to administer the deceased’s estate.

Foremost, the personal representative has a serious duty to look out for the best interest of the estate while simultaneously realizing that the estate there for the benefit of the heirs, devisees and any creditors. The estate is not there for the benefit of the personal representative. In fact, in the opinion of the Minnesota probate attorneys at the law firm, the job of the personal representative is often thankless and not much fun at all.

Powers of the Personal Representative

The personal representative must pay taxes on and take all steps necessary for the management, protection, and preservation of the estate. Failure to do so may result in personal liability for the personal representative.

Until the estate is closed and the court allows the estate to terminate, the personal representative has the same power over the title to property belonging to the estate as the deceased would have had. However, it is extremely important to remember that the personal representative is a “fiduciary” for the other heirs, devisees, and creditors of the estate. Please keep reading different articles on this website if you have questions about what those terms mean. Or, please contact the law firm to discuss your case.

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.

General Power of Appointment | Minnesota Probate

Posted on October 10, 2016 by jlawyer

General Power of Appointment in Minnesota Probates

When a person passes away, and they held what is called a “testamentary power of appointment” over property that could, conceivably, be used in favor of the deceased, a creditor can make a claim against that person or the deceased person’s Minnesota probate estate.

Why does this matter?

A power of appointment is a construction of law. Basically, when a person owns and interest in property, and they pass away, the law has to determine a way to “deal with” that property interest. Furthermore, creditors (people or companies that the deceased owed money to) should have a right to make a “claim” against that interest.

It is important to remember that the deceased person’s creditors can filed a claim against all property belonging the the deceased. Obviously, a power of appointment is a property interest.

What about property which the deceased “gave to ” someone else?

It is important to remember that if the deceased “gave” their power of appointment to someone else, the creditor can still make a claim against that property interest against the person who the deceased gave property to.

Our firm often sees this problem in cases where a deceased may have transferred, sold, or gave away an interest in a home or farm in Minnesota to else. This person is usually a family member. The family often wants to save money for the family. Sometimes, in an effort to save money and property, the family does not work with a lawyer and simply deeds or transfers the property to someone in the family. Needless to say, failing to work with a Minnesota probate lawyer can be a bad idea. It helps to know what you are doing.

Recovery Against Distributees

Sometimes estate assets and improper uses of power of appointment take place. This causes legal problems for the family and the estate. After estate assets have been distributed, a creditor whose claim has not been discharged or barred may seek recovery from a person or person’s who received the deceased’s assets.

Allegations of “fraud and misrepresentation” often come up in this instance. It is important that the personal representative not make distributions until the estate is “finalized”. If you have questions about what the means, you should speak with the probate attorney. If you don’t have an attorney, you should get one. Failing to follow the law can lead to significant personal liability for an heir, distributee, and personal representative.

Minnesota Probate Lawyers, Free Initial Consultations

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

Distributions to a Minor Child | Minnesota Probate

Posted on September 23, 2016 by jlawyer

Distributions to a Minor Child

Many people who contact the law firm have very specific questions about distributions to a minor child in a Minnesota probate. We are drafting this article to provide information that you can use in our particular situation.

The most common occurrence of when distributions need to be made to a minor child is when the child’s parent suddenly dies. This tragic circumstance often creates confusion around what the deceased person’s minor child will receive from the deceased person’s estate. This article will discuss probate law and how the law deals with inheritances of a minor through the probate process. There are other instances (or simultaneous instances) when a guardianship and/or conservatorship for the minor child may also need to be discussed.

Minnesota Probate Law

If a personal representative is required to give money or personal property to a minor child pursuant to deceased person’s will or the law of intestacy (without a Will) the distribution can be accomplished by transferring an amount not exceeding $5,000 per year to:

the conservator for the minor child
a person who has the care or custody of the minor and with whom the minor child lives with
a guardian of the minor

There are other instances in which the personal representative can distribute money to a financial institution or custodian under the Uniform Transfers to Minor Act. That act will not be discussed in this article.

Appointment of a Guardian and/or Conservator

Minnesota law makes a distinction between (1) the guardian of the “person” of a minor and (2) the conservator of the “estate” of the minor. The “person” is the health and welfare of the minor. The “estate” is the personal property and/or money belonging to the minor.

For purposes of distribution of assets from a probate estate, the personal representative may need only accomplish the appointment of a conservator. Specifically, Minnesota statutes 524.5-402 through 524.5-409 provide the information on how to set up a conservatorship for a minor. Additionally, the “venue” for a conservatorship for a minor is the county where the minor resides, or, if the minor does not reside in the state, any county where the property is located.

Minnesota statute 524.5-401 sets for the information which is required to be in a Petition for the appointment of a conservator. The petitioner is the proposed Conservator. This person may also be the same person who is the personal representative of the estate. The petition should contain the following information:

the minor’s name, age, and place of residence
the name and address of the minor’s parents and adult brothers and sisters
the name and address of any legal representative of the minor
a general statement of the minor’s property and an estimate of value
the reason that the conservatorship is in the best interest of the minor
the name and address of any proposed conservator and the reason why that person should be selected
the type of conservatorship which is requested – a limited or an “unlimited” conservatorship

The above information is simply what the statute requires. Other information may be required depending on the specific facts of the case. An experienced probate attorney should be consulted for specific questions.

Free Initial Consultations

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

Selling a Home in a Minnesota Probate

Posted on August 30, 2016 by jlawyer

Questions about the selling a home in a Minnesota probate?

The law firm has experienced attorneys who know how to guide clients through selling a a home in a Minnesota probate. Click on the link if you have questions about How to Probate a Will in Minnesota.

Unlike the typical home sale process, probate law has its own rules and regulations which must be followed. There are certain preliminary considerations in every probate involving the sale of a home or other real estate.

Preliminary Considerations

The sale of real estate in a Minnesota probate may present a number of issues. The first issue is whether the deceased person (decedent) had a Will or died intestate (without a Will). If there was a Will, the personal representative of the estate should review what the decedent wants to happen. If the decedent specifically “gave” the home or other real estate to a specific person, those wishes must be followed. If the decedent did “give” the home to a specific person then it belongs to the heirs of the estate, in equal shares.

Next, the personal representative must figure out whether his or her authority to sell the property is in some way restricted by the law. For instance, if the home is classified as a “homestead” under Minnesota law, it is exempt from most creditor claims (other than property taxes, other judgments or liens, and a medical assistance lien).

Consent of the Heirs

If a parcel of real property is classified as a homestead, the personal representative may not sell the property to pay administration expenses without the written consent of interested parties. Most Wills specifically grant the personal representative to power to sell property. Also if the decedent died intestate, then Minnesota law does give the personal representative authority to sell the home. However, the money from the sale needs to be placed into an estate bank account. However, again, in the case of a homestead property, the personal representative cannot sell, mortgage or lease the property without the written consent of the surviving spouse, if any.

Order of the Probate Court

If there is a problem with the sale of a home or other real estate, it may be necessary for the personal Representative to obtain the permission of the court to sell the real estate. What does this mean? It means that the person in charge of the estate must petition the court for an order approving the sale. This means going to court, sending notice to all interested parties, and having a court hearing on the issue. The probate attorneys at the law firm have experience doing this.

Personal Representative Conflict of Interest

Finally, the personal representative should be careful about selling the home to themselves or his or her spouse, agent, attorney, or any corporation or trust in which the personal representative has a substantial beneficial interest. Any such sale is voidable, unless: (1) the Will or contract signed by the decedent expressly authorizes the transaction, or (2) the transaction is approved by the court after notice to all interested parties and a hearing, or (3) all interested parties consent to the sale after full disclosure.

Minnesota Real Estate Lawyers

Contact the Flanders Law Firm LLC today for a free initial consultation about selling homes or other real estate in Minnesota probates. The firm has years of experience dealing with all issues related to probate and selling real estate. Call today at 612-424-0398.