Minnesota probate

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.

Minnesota Probate | What to bring to initial meeting with a lawyer?

Posted on by jlawyer

Minnesota Probate Medical AssistanceClient are often concerned about what exactly they need to bring to an initial meeting with a Minnesota probate attorney.

This post will hopefully provide some answers to the above question.  While the information in this post is for information purposes only, it should give you a good idea of what a probate lawyer would be looking for.

DOCUMENTS FOR THE CLIENT TO BRING TO THE MEETING

  • Original copies of the will and all codicils
  • A list of names and addresses of heirs and will beneficiaries
  • The death certificate (if available)
  • Real estate tax statements and title papers for real estate (registered or abstract?)
  • All available information about assets and their values
  • The last income tax return of decedent
  • A list of questions the client may have

Items to Bring to Initial Meeting with the Probate Lawyer

Questions for heirs:

  • Did the decedent leave a will?
  • If so, where is the original? If the original is not available, is a copy available?
  • Who is nominated in the will as personal representative?
  • Is the nominated person willing and able to serve?
  • If there is no will, determine the same facts as in the determination of heirs (below):
  • Was the decedent survived by a spouse?
  • If not, did the decedent have any children who survived the decedent?
  • Is there a surviving spouse?
  • Did the decedent ever have, or adopt, any children?
  • If so, what are the names, ages, and addresses of the children, and issue of a deceased child, who survived
  • the decedent by 120 hours?
  • If there are no living issue or spouse of the decedent, the heirs are determined in the order set forth in
  • Minnesota Statutes section 524.2-103 – parents, their descendants, grandparents and their descendants,
  • and then next of kin.

Minnesota Probate Assets & Jurisdiction:

  • In what state was the decedent domiciled?
  • In what state(s) did the decedent own property that was not disposed of by a will substitute (such as joint tenancy or a living trust)?
  • Is the total value of the estate, including life insurance and retirement plans, likely to exceed $1,000,000?
  • Did the decedent own any real estate in Minnesota, or elsewhere?
  • What was the decedent’s occupation?
  • What property is registered in the name of the decedent? (If the decedent was survived by a spouse, was
  • the title in both names?)
  • Bank accounts
  • Automobiles
  • Securities
  • Life insurance
  • Retirement plans (including IRAs and annuities)
  • Businesses
  • Other valuable items

Free Initial Consultations

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

Minnesota Probate | Domicile, Residency, and Ancillary Administrations

Posted on by jlawyer

Minnesota Living TrustIn this article, I wanted to discuss the legal doctrines of jurisdiction and where a probate should be submitted to court in Minnesota.  There was recently an article about Minnesota tax law as it applies to this issue.

Residency and Domicile in a Minnesota Probate

In Minnesota, when a person passes away, their estate needs to be probated in the county where they resided.

The justification for probating in the county where the person resided is that they will have likely paid taxes on their home, on vehicles, and participated in the day-to-day operations of life in the county.

The legal word “domicile” is complicated but it can be boiled down to where a person intended to stay and live.  As stated above, this can become complicated when a person may have a home in Minnesota but that person may spend a significant amount of time in Florida, Arizona, Texas, or some other state with much warmer weather the Minnesota in the winter. This creates complications associated with tax liability as Minnesota has a high personal income tax as a state.

Furthermore, at times, the deceased person may have had a cabin or other property in Minnesota.

Although the person may have had a cabin or other property, the laws of domicile and residency still provide that the person this day should be probated in the county in which they resided permanently. Again, this can create confusion people tend to move around a fair amount when they retire. If you have questions about the meaning of domicile and residency, a Minnesota probate attorney should be consulted.

As stated above, once a proper county court is chosen, the executor or personal representative of the estate needs to properly petition the court for a probate administration. I have previously written articles on what needs to be contained in a petition for a new probate.

Ancillary Administrations and Minnesota Probate Law

In addition to the discussion above about domicile and residency, the questions of ancillary probate administration comes into play.  This is because a deceased Minnesota resident may have a home in a different state – for instance, Florida.

If the deceased person owned a home in Florida, then the title to the property will need to be transferred from Florida to the person’s estate in Minnesota.  Again, this is because Minnesota law wants to control a person’s estate.

In this instance, an attorney in who is licensed to practice law in Florida should be consulted because a separate, “ancilllary”  probate will need to be conducted.  This is an extra expense but it is a necessary expense.

Further information about ancillary probate and residency

Contact the Flanders Law Firm LLC or attorney Joseph M. Flanders, a Dakota County Minnesota probate law firm, for more information about ancillary probates, domicile, and the meaning of residency as it applies to Minnesota law.  Telephone: 612-424-0398.

Minnesota Probate Law | Publishing notice in the newspaper

Posted on by jlawyer

Minnesota Probate Law Publishing Notice in the NewspaperIn every Minnesota probate estate administration, the personal representative is required to publish a notice to creditors and a newspaper of general circulation in the county in which the estate is probated.

We have discussed in previous articles that the county in which the estate should be probated is the county of the deceased person’s residency or “domicile”. Basically, this means the county where the decedent lived, had bank accounts, had vehicles titled, and where he/she paid bills from.

Why is publishing notice in the newspaper necessary?

Under Minnesota law, every personal representative must publish a notice to creditors in a newspaper of general circulation in the county where the decedent established residency. This is necessary because the personal representative is required to make extra efforts to identify potential creditors of the estate. Often times, a personal representative may not be aware of all the potential debts of the deceased person.

Common debts include credit cards, mortgages, utilities and other home payments, taxes, and other miscellaneous outstanding debts which one accrues during life.

A personal representative is taxed with the responsibility of being a fiduciary for not only the heirs but also the creditors. This can be a difficult and demanding job and it is one where the law needs to be followed very closely; otherwise, the personal representative could be held personally responsible for their failure to follow the law.

The publication process is rather antiquated and, in my opinion as a practicing attorney, a remedy that creditors are not likely to read. However, I was contacted by an heir who found out about a deceased person’s estate through an Internet search.  The notice to creditors was published in a newspaper which showed up on the Internet. I was surprised that the heir found out about the estate and I was pleased that the newspaper publication worked.

The above anecdote outlines the reasons why notice is necessary. In a previous article, we discussed the meaning of due process when it comes to a probate administration. Essentially, all heirs and creditors are entitled to notice of the existence of a probate estate while it is winding its way to the court system. The heirs and/or creditors will not necessarily have their claims paid, but they are entitled to notice.

What should be published in the Notice?

The notice to creditors must outline the existence of the estate, the name and address the personal representative, the attorney representing the estate, any notice of upcoming court hearings to appoint the personal representative.

As we discussed above, this notice gives creditors and heirs due process to be able to know what is going on in the estate. This is a extremely important function of the court systems. After all, the court systems are a supervisor of court cases and people, and attorneys, so that everyone is following the law.

Notice published in the newspaper does not mean that the creditor claims will all be paid. There are many exemptions and different arguments to creditor claims in any probated administration.

For further questions about notice to creditors, publication in the newspaper, exemptions, and probate administration a Minnesota probate lawyer should be consulted.

Minnesota Probate Lawyer

Flanders Law Firm LLC and Joseph M. Flanders are experienced Dakota County Minnesota probate attorneys. From also represents clients throughout the state of Minnesota on probate and estate administrations. For further information, contact the law firm at 612-424-0398.

What are the fiduciary duties of a Minnesota personal representative?

Posted on by jlawyer

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

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

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

Fiduciary duties of a Minnesota personal representative?

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

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

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

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

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

Duties owed to creditors in a Minnesota probate estate

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

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

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

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

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

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

An personal representative may want to speak with a probate attorney

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

The firm offers free initial consultations in all cases.