Minnesota probate

Minnesota Probate | How do I get letters testamentary?

Posted on by jlawyer

how do i get letters testamentaryMany clients call my office with similar questions.  One of the main questions I get is:  how do I get letters testamentary in Minnesota?  I will try my best to answer that question in this post.

How do I get letters testamentary in a Minnesota Probate?

There are many issues that should be analyzed prior to starting a Minnesota probate.  I have recently written several posts on the topic of starting a Minnesota probate.  Please read them and then continue on with this post.

In this instance, I will assume that either a meeting with the probate registrar has happened or a hearing with a district court has happened.  In order to receive letters testamentary from the court, certain court pleadings (documents) must be filed with the court.

Notice

Notice is one of the hallmarks of the law.  Notice is often referred to as “due process”.  If you don’t know what that means, contact a probate lawyer.  Basically, each personal representative and their lawyer must give notice to “interested parties”.  Interested parties include heirs of the estate and creditors of the estate.

In an informal probate, a Notice for Informal Probate of Will (assuming there was a Will) and a Notice to Creditors needs to be approved by the court.  From there, two things should happen:  (1) a copy of that court-approved notice should be filed in a newspaper of general circulation in the county where the deceased person resided, and (2) the personal representative must mail a copy of the notice or a clipping from the newspaper to all interested persons.

Who should the notice be provided to?

The probate notice, in addition to being published in the newspaper, should be mailed to the following individuals:

  • Surviving Spouse
  • Adult Children of the Decedent
  • Minor and Adult Children of the Decedent
  • Heirs, Devisees, and Anyone Named in a Separate Writing
  • Creditors
  • Foreign Consul
  • Attorney General
  • Commissioner of Human Services

What should I do after I have provided notice?

The court always wants proof.  Proof comes in the form of documents.  Thus, the personal representative needs to provide the court with an Affidavit that they provided the proper notice to the above parties.  Failure to tell the court that this was done will certainly result in a failure to receive letters testamentary.

Furthermore, an “Affidavit of Notice to the Commissioner of Human Services” must be filed.  Just like the Affidavit of Service, this Affidavit shows the court that the personal representative gave the proper notice to the state of Minnesota.  Why is this done?  Because the Commissioner of Human Services keeps track of all medical assistance claims paid by Minnesota for expenses of last illness and care.  This is often referred to as “medical assistance”.  I have also written posts on probate and medical assistance issues.  Feel free to read those posts for more information.

Finally, an Affidavit of Publication must be filed with the court.  The Affidavit is often sent to the court by the newspaper where the initial notice was published.  The newspapers don’t always do this, so the personal representative and their attorney need to check on this.

Receiving Letters Testamentary

Assuming all of the above was completed by the personal representative and the probate attorney, the court will issue Letters Testamentary (or, in the case of a person who died without a Will, Letters of General Administration).  Finally, this is also assuming that the estate was started properly.  The probate begin with the filing of a Petition or Application with the court – which is something I did not cover in this post.  Please read the links above for question on that issue.

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.

Selling a Home or Real Estate in a Minnesota Probate

Posted on by jlawyer

Selling a house or real estate in a Minnesota probateDo you have questions about selling a home or real estate in a Minnesota Probate?  Read on for answers.

Selling a Home or Real Estate in a Minnesota Probate

This post will examine a number of issues and problems which may arise from the sale of real estate by a personal representative and their attorney.  There are special circumstances surrounding the management, sale, and distribution of real estate in a Minnesota probate.  At times, the sale or real estate in a probate can be tricky.

Powers of a Personal Representative to Sell Real Property

To begin, it is important to keep in mind that Minnesota law provides detailed guidance on the sale of a home or other real property in a probate.  Specifically, Minnesota statutes provide the personal representative of an estate broad powers over real estate.  The applicable statutes are in section 524.3-715.  Some of the most important powers include:

  • the power to gather and invest the real estate
  • the power to make any necessary repairs to the real estate
  • the power to subdivide and develop real estate
  • the power to sells, mortgage, or lease the real estate
  • the power to execute deeds and other documents of conveyance

Finally, a personal representative can enter a lease which may exceed the anticipated length of the probate estate.  Clearly, Minnesota law grants a personal representative extensive powers over Minnesota real estate in a probate estate.

Management of the Real Estate

If a deceased person had an interest in a home or other real estate – be it in Minnesota or elsewhere – a personal representative must think about many issues when the probate begins.

A personal representative, and their attorney, should be concerned about proper liability and/or casualty insurance on the property.  Obviously, it is extremely important that a home or other real estate is insured.  Often the insurance on a home may lapse at death.  Or, there may be contractual obligations which must be taken care of quickly upon death.  One simple example is the failure to make premium payments which often results in a lapse of insurance coverage.

Another concern of the estate will be the mortgage on the home or other security agreement.  Obviously, if the real estate has a mortgage on it, the personal representative needs to be concerned about how it will be paid so that it does not go into foreclosure.    Furthermore, many companies are concerned about vacant properties and what to do about them.  Much like a mortgage on a parcel of real property, the personal representative should be concerned about property taxes and other costs like leases .

If you or someone you know has questions about selling a home or real estate in a Minnesota probate, please contact Joseph M. Flanders at Flanders Law Firm LLC.

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.

Starting an Informal Probate in Minnesota

Posted on by jlawyer

starting an informal probate in minnesotaDo you have questions about starting an informal probate in Minnesota?  Read on.

An informal probate proceeding starts when an “application” is filed with the appropriate probate registrar in the county of venue.  What does that mean?

In essence, the proper venue is a the place where the deceased person (decedent) lived permanently at the time of his or her death.  There is a question of interpretation of the term “permanent”.  If you have questions, a MN probate lawyer should be consulted.

Starting an Informal Probate in Minnesota

The application must contain certain information.  The required information is set forth in Minnesota Statutes, section 524.3-+301, the MN probate court rules, and the local county level rules.

The probate application must be accurate in its details.  This is because the information in the application is the basis for all subsequent finding made by the registrar.  Once the application is signed by the personal representative of the estate, the attorney and the personal representative can set up a meeting with the county registrar.  Whether a meeting is required is up to the county and registrar.  Check your local rules to see what is required in your county.  Sometimes the hearing may only be a telephone call with the registrar.

Items which need to be in the Probate Application

Some of the major items that must be in the probate application include:

  • The decedent’s full legal name, any prior names
  • The decedent’s date of birth and date of death
  • The personal information of the personal representative
  • An explanation of why venue is proper in that particular county
  • An explanation of whether a Will existed or whether the decedent died intestate
  • A list of the “interested parties” or the heirs and creditors of the estate
  • Whether the will requires a bond
  • Whether the will requires a formal or informal personal representative
  • Whether there are any complications with the heirs
  • Whether there are any complications with the Will
  • An identification of the property and debts of the estate
  • Other information

There is no right or wrong answer to exactly what has to be in a probate application in Minnesota.  However, a probate attorney should be consulted to make sure all the requirements are met. Every case is different and different laws apply to different facts.

Appearances of Counsel

Appearance requirements also vary from county to county for informal probates.  In many counties, the application may be filed by mail and no appearance is necessary.  In other counties, a formal attorney appearance may be required.  Sometimes a mail filing is sufficient; however, many counties are now requiring e-filing.

If you have questions about your county, contacting the probate registrar’s office is a good idea.  The probate registrar’s office may be able to provide the local probate rules to you.

Meeting with the Probate Registrar

After the application is filed and accepted, a meeting with the probate registrar should be scheduled.  The attorney and personal representative should bring the application and the will, as well as any other supporting documentation.  The attorney should also be sure to bring the personal representative’s acceptance of appointment and oath.  This is an important document because it provides the basis for the personal representative’s fiduciary duty to the rest of the heirs.

Once the meeting with the probate registrar is over, the registrar will either approve the application or ask the estate to re-file as a formal administration.  Whether a formal administration is required is a subject of another post.  As always, for questions on starting an informal probate in Minnesota, an attorney should be consulted.

Free Initial Consultations

Questions about starting am informal probate in Minnesota?  Contact the Flanders Law Firm today.  The firm offers free consultations to all potential clients.  Call (612) 424-0398.

Starting a Minnesota Probate Estate | MN Probate Law

Posted on by jlawyer

Starting a Minnesota ProbateStarting a Minnesota probate estate usually means filing a “Petition” or “Application” with the district court located in the county of the deceased person’s (decedent’s) last known address.  Attorneys call this “venue”.

Whether a Probate Petition or Application should be used depends on the nature of the estate.  For question on this issue, a probate lawyer should be consulted.

Minnesota Probate | Choosing Informal or Formal

Basically, if problems or issues may arise from the estate administration, a formal probate is usually the best option.  This means that the personal representative’s actions will always be approved by the court.  This protects the heirs because the court is supervising the personal representative.  This protects the personal representative because the court will approve their decisions without fighting or back-biting from angry heirs or siblings.

Below are common issues which the law firm has seen created by heirs in starting a Minnesota probate estate:

  • Distributions will be made to a minor heir or devisee (person who receives money from the estate)
  • There may be confusion about the identity of heirs
  • The whereabouts of heirs is unknown
  • There is a possible issue with the state due to lack of heirs
  • There may be an inaccurate description of the heirs.
  • There may be illegitimate children of the decedent
  • The requirements of the Will cannot be satisfied and the personal representative needs court approval
  • There are existing disputes among the heirs and the personal representative
  • An heir or devisee caused the decedent’s death

Starting a Minnesota Probate Estate | Problems with the Will

Furthermore, common issues that arise which create the need for a starting a formal estate include:

  • A problem with the Will
  • The original Will is lost
  • There are handwritten changes to the Will
  • A separate writing is listed in the Will but cannot be found
  • The court cannot understand the Will
  • There is a need for a will construction due to an confusion or mistake in the Will
  • The Will does not contain a residue clause
  • The Will fails to nominate a personal representative

Real Estate in the Initial Probate

If the probate proceeding includes real estate, the real estate (home or otherwise) will need to be included.  This means finding the legal description and deed containing the last known ownership interest on the real property.  This can be found at the county recorders office in the county where the decedent lived or where the real estate is located.

Also, keep in mind that if the real estate will not be sold during the probate, a personal representative will likely want to proceed in a formal administration.  This is because many county recorders offices will not recognize a probate registrar’s determination of the heirs, which may cause the title to be unmarketable when it is later transferred to another party.  If, however, the intent is to sell the property during the administration, or if the will includes a specific person who will get the home or real estate, in most cases, a personal representative can proceed in an informal probate.

In all cases, if you have questions about how to deal with real estate in a probate, a lawyer must be consulted.  Failure to properly title and transfer real estate is one of the most common reasons for personal representative liability for negligence in handling the estate.

Insolvent Estates in a MN Probate

An insolvent estate is one which has more debt than assets.  In other words, the deceased person owed more money to people than they actually have in their estate.

Having an insolvent estate is one prime reason to start a formal proceeding.  This means that the personal representative and the lawyer will be responsible for, essentially, cleaning up the estate, paying bills, and then filing a closing statement with the court.  It is easy to understand how people or companies might be made when they do not get paid what they feel they are owed.  However, this is often the job of the probate estate.  The personal representative and the attorney should be very careful in this situation.  Finally, again, court supervision of the probate estate is ideal.

Free Initial Consultations

Questions about starting a Minnesota Probate?  Contact the Flanders Law Firm today.  The firm offers free consultations to all potential clients.  Call (612) 424-0398.

Adult Child’s Probate | Answers from Minnesota Law

Posted on by jlawyer

Do you have questions about handling an adult child’s probate?  Few things hurt more than having to bury a child of any age.Adult Child's Probate

Yet over time, you can move on with your life with the help of family and friends – and even new acquaintances. While your pain may never fully go away – you can find ways to live with it and enjoy this world again. After all, your beloved and departed child would want you to move on.

Yet apart from addressing your grief — how should you move forward with handling your adult child’s probate? Your path forward will largely be determined by whether or not your adult child was married or living with a “significant other” at the time of his/her death – and the identity of your child’s designated personal representative or executor.

Here are some general estate-related topics you’ll want to address with your Minnesota probate attorney at this difficult time in your life.

Issues Surviving Parents May Need to Face in an Adult Child’s Probate

  • Did your son or daughter leave behind a spouse or significant other? If so, you should make every attempt to move forward with probating your adult child’s estate on as friendly of terms as possible – especially if you were named as the personal representative or executor of your adult child’s probate. If you were not named as the personal representative of your adult child’s estate, you must move forward even more sensitively, especially if there are major possessions (or property) and keepsakes you hope to reclaim at some point;

Were there any grandchildren born to the couple – regardless of their marital status?

Be aware that this will require extreme sensitivity on your part so you can preserve or create meaningful visitation rights with the child or children. Should the surviving parent have serious addiction or other personal problems that must be addressed right away, you may need to consider adopting the children – or making other arrangements that are in their best interests;

  • Address your own grief sooner rather than later. If you do not have a spouse or close friends you can lean on for emotional support, ask others in your community where you can obtain sliding-scale or discounted therapy sessions if your funds are low.
  • You can also visit psychologytoday.com to locate a counselor. Should you be a member of any faith community, reach out for help in that setting.
  • Finally, be aware that some Internet websites can put you in touch with others who are grieving. Of course, you should never give out your full name or actual location to any strangers online – as some people may try to take advantage of you. (Some online resources are set forth below);
  • Did your son or daughter own considerable property in his/her name? Your attorney can help you look into this so you can make sure no one is able to try and sell or otherwise dispose of this property before the estate is probated – or passed on under your adult child’s estate plan;
  • Did your deceased child have any siblings? Do what you can to discuss major decisions (such as where to bury your son or daughter) with your other surviving children. Try to see that each surviving sibling receives something of either financial or sentimental value from the deceased child. Since your surviving children will be watching how you handle your own grief — try to set an example by reaching out for some counseling;
  • How will you handle burial, cremation and other related issues? Of course, you should first try to honor any instructions your child may have left behind in any legal documents. If no such documents exist, then you (and/or your spouse) will ideally need to coordinate this decision with a surviving spouse or significant other of your deceased child;
  • Do you know what to expect under Minnesota laws if your adult child died intestate – or without a Will or any type of estate plan? Your attorney can explain how the state will handle this situation – based upon the identity and legal relationships all survivors had with your adult child.

Be Sure to Visit Your Lawyer and Consider Looking at These Online Resources

After scheduling an appointment with your Minnesota probate attorney regarding the estate of your son or daughter, you may want to visit some of the following online resources.  An adult child’s probate is a serious issue which requires legal counsel.  While our firm cannot directly endorse any of these sites – a number of them were consulted during the drafting of this article. Each one provides useful information for those who are grieving or still acting in a caregiving capacity on behalf of a sick family member.

Compassionate friends.org; Griefhealing.com; Mastersincounseling.org (This one says it offers links to 115 useful grief websites); Helpguide.org; and psychologytoday.com. Of course, you’ll need to add a “www” and a “dot” before each of these website names. Should you still be caring for a very ill adult child now and need added support — or simply need a way to keep many others updated on his/her condition, you may want to create a profile on the often highly praised website: Caringbridge.org.

Our office is here to help you as you move forward during this difficult time.

Adult Child’s Probate Lawyers

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 | Second marriages, Surviving spouse, and Children

Posted on by jlawyer

Minnesota Probate LawIn many Minnesota probate consultations that my office handles, there are often instances when a person who has died leaves behind many different people who may have a legal interest in that person’s estate.

People Who Have an Interest in the Deceased Person’s Probate Estate?

Common persons you may have an interesting deceased person’s estate, whether they had a Will or died without a will, are:  a surviving spouse, children, heirs, distributees, grantors, grantees, and other interested parties (creditors).

Furthermore, a common situation is when the person who died had children from a prior marriage but was remarried. Other times, the person may have been estranged from her spouse for multiple years but never divorced the person. These situations can create complicated issues with the deceased person’s probate administration. Often times, the result can be unfair to the surviving beneficiaries.

The major problem with surviving spouses and second marriages is that, if the person did not have a Will, and sometimes even if they did have a Will, the surviving spouse and second marriages is that the surviving spouse is entitled to benefits above and beyond what anyone else may receive. These estate benefits can include right to a portion of the deceased person’s homestead and what is called elective share of the probate estate.

Elective share of the probate estate

An elective share of the surviving spouse in addition to other benefits that the surviving spouse may receive, is based largely on the number of years in which the couple was married. Minnesota law is cited below for reference:

524.2-202 ELECTIVE SHARE.

(a) Elective share amount. The surviving spouse of a decedent who dies domiciled in this state has a right of election, under the limitations and conditions stated in this part, 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

(b) Supplemental elective-share amount. If the sum of the amounts described in sections 524.2-207,524.2-209, paragraph (a), clause (1), and that part of the elective-share amount payable from the decedent’s probate estate and nonprobate transfers to others under section 524.2-209, paragraphs (b) and (c), is less than $50,000, the surviving spouse is entitled to a supplemental elective-share amount equal to $50,000, minus the sum of the amounts described in those sections. The supplemental elective-share amount is payable from the decedent’s probate estate and from recipients of the decedent’s nonprobate transfers to others in the order of priority set forth in section 524.2-209, paragraphs (b) and (c).

(c) Effect of election on statutory benefits. If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse’s homestead rights and other allowances under sections 524.2-402,524.2-403 and 524.2-404, if any, are not charged against but are in addition to the elective-share and supplemental elective-share amounts.

(d) Nondomiciliary. The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective share in property in this state is governed by the law of the decedent’s domicile at death.

Children and Heirs of the deceased person

The heirs of a deceased person are often upset to find out that a second spouse, who is the surviving spouse, will receive significant benefits from the estate. This is true even if the surviving spouse may have been estranged from the deceased person and the deceased person may have even contemplated divorce.

There are some exceptions to this rule, as there always is, and a qualified probate attorney should be consulted if you have questions.

Surviving Spouses, Probate in Minnesota

If you have specific questions about a deceased person’s estate, whether yours a surviving spouse or a child of a deceased person, please contact the probate attorneys and lawyers at Flanders Law Firm LLC to discuss your specific situation.  Another good resource is the Minnesota attorney general.

There may be a remedy that you are unaware of or had not considered. The firm offers free consultations to all potential clients. Call the law firm at 612-424-0398.

Minnesota Certificate of Death Application

Posted on by jlawyer

Please review the form below which is provided by the Minnesota Department of Health.  The Minnesota Certificate of Death Application is used by the state, pursuant to Minnesota Statutes 144.225, subdivision 7 and Minnesota Rules, part 4601.2600.

The form is very useful for applying for a certificate of death of a loved one in Minnesota.  This certificate is used for many different purposes, including probates in Minnesota.

MN Certificate of Death Application

Download the PDF form:  Minnesota Certificate of Death Application

Minnesota Certifiacte of Death Application 1

Minnesota Certifiacte of Death Application

If a person has questions about this application or what is required in a Minnesota probate, an attorney should be consulted.

Minnesota Probate Attorneys & Lawyers

If you have questions about the the Minnesota Certificate of Death Application and/or Minnesota probates, contact Flanders Law Firm LLC at 612-424-0398.