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

Posted on June 24, 2015 by jlawyer

Client 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 November 18, 2014 by jlawyer

In 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 November 13, 2014 by jlawyer

In 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 October 10, 2014 by jlawyer

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.