Rosemount

Minnesota Probate Law | How Ethical Personal Representatives Avoid Lawsuits

Posted on by jlawyer

Minnesota Probate LawWhen most people have their Wills drafted, they choose highly responsible and wise family members or friends to serve as their personal representatives. Likewise, when someone dies without a Will (intestate), probate courts appoint well-qualified individuals to serve in this role.

While acting as a fiduciary, your personal representative has legal permission to manage your assets so that if your estate is large enough, all of your outstanding debts can be paid and all gifts can be distributed to your named beneficiaries.

Yet as straightforward as this process sounds, problems can easily arise. Here’s a look at the main duties your personal representative must handle, along with tips for addressing these tasks in a timely and fully transparent or honest fashion. When any unique challenges develop, many personal representatives request the help of a Minnesota probate attorney.

Key Duties Required of a Minnesota Personal Representative

  1. Must locate and protect all estate assets. After properly notifying all of the testator’s creditors and beneficiaries that the probate process has begun, the personal representative must carefully locate and appraise all of the estate assets. S/he must then make sure they’re kept in a secure location throughout the probate process. When necessary and affordable, outside appraisers can help the personal representative make sure accurate values are assigned to all assets;
  1. All legitimate, outstanding creditor debts presented must be paid, along with all probate expenses. Minnesota creditors have up to four months to present their valid claims against the estate if they want them to be paid. Common probate expenses can include all funeral/burial expenses, final medical bills, all legitimate debts owed to creditors, attorney fees, and all taxes due;
  1. A formal inventory must be prepared and presented to the court, indicating all of the testator’s assets. This list should also include the fair market value of each asset at the time of the testator’s death. Should there be any outstanding liens against any property, the specific dollar amount owed and all related information should also be included. All debts should also be noted in the inventory, including specific information regarding each creditor/party that must be repaid. A wise personal representative will share this information with the beneficiaries as s/he deems appropriate. It can also help to meet with the beneficiaries and answer  their questions about the probate process;
  2. A final accounting of the estate must be presented to the court. Every transaction conducted by the personal representative on behalf of the estate must be properly recorded and documented in writing for the court. This allows the judge to make sure that all funds expended have been legitimately spent. Receipts must be kept for all services rendered to the personal representative in the course of his/her duties. Should it appear at this stage that the estate will not be able to give each beneficiary all that was originally promised, the personal representative might want to ask for the court’s advice on how to address this issue with them;
  1. A final distribution of all gifts should be made to the beneficiaries. Since some estates may not be large enough  to transfer all promised gifts to the beneficiaries, it’s often wise for a personal representative who has been promised a set payment for his/her services to fist meet with the beneficiaries before accepting any personal payment. These individuals must realize that Minnesota personal representatives are often paid between $25 — $50 an hour for their services, unless higher fees were guaranteed based upon the representative’s professional status and experience. A proper fee can usually be agreed upon, once the beneficiaries can see that they are being awarded the maximum percentage possible of the original gifts or funds promised to them.

As implied above, personal representatives can often avoid lawsuits if they’ll meet with all interested beneficiaries throughout the probate process.  If a Minnesota probate attorney has been hired by the personal representative, s/he may want this lawyer to create a document for all of the beneficiaries to sign — indicating that they understand why they’re receiving less than was originally set aside for them — and that they’re in agreement with the final accounting.

Minnesota attorneys and lawyers

If you have questions about the home, transfer of title to real property, or other Minnesota probate questions, contact Flanders Law Firm LLC at 612-424-0398.

The Probate Homestead in Minnesota | Transfer of Title to Real Property

Posted on by jlawyer

Minnesota Transfer on Death DeedIn many initial consultations with the heirs, children, and surviving spouses of a deceased person, people often have questions about whether probate is necessary and or how to transfer title to real property or the “homestead” from a deceased person’s name to that of the interested party.

Small estates in Minnesota probate

As I have discussed in previous posts on this topic, in many cases a probate estate will not be necessary. When an estate is valued at less than $50,000, Minnesota law provides that a probate will not be necessary.

Assets and other information may be transferred by a small estate affidavit. You have questions about this process you should contact Minnesota probate attorney.

The probate homestead in Minnesota

Even if the deceased person had assets which are valued at less than $50,000, they may still have had a home or other parcel of real property in their name.  The law considers this an asset.

In most instances, the home will be worth more than $50,000. Furthermore, it is necessary to have a court approve the probate administration in order to transfer title properly from a deceased person to the name of the person’s heirs or the individual or individuals who were named in a person’s Will.

The Minnesota title standards and what are called the “white pages” provide an explanation as to why court approval is necessary when transferring title from a deceased person’s name to their heirs.  It is very important that there are no “clouds on the title” of the real property going forward. As you might imagine, when a person passes away and the real property or home is in their name, the law does not want a county recorders office having deeds that are poorly drafted or do not transfer title properly to the person or persons who are entitled to the property.

Without court approval, the transfer of title process can become very messy in a hurry. This is because laypersons, who are not trained in the law, often make mistakes on how real property is transferred from one person to another. Furthermore, it is been my experience, as an estate planning and probate lawyer, that people are unclear as to what an estate means in terms of ownership. In essence, the estate still owns property even though a person may have passed-away.  Title to real property does not automatically pass to children, surviving spouses, or heirs.

Minnesota attorneys and lawyers

If you have questions about the home, transfer of title to real property, or other Minnesota probate questions, contact Flanders Law Firm LLC at 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 Cases:  Why It’s Rarely Wise to Represent Yourself

Posted on by jlawyer

Minnesota Probate LawNearly every day, American TV shows feature people fighting in court over various matters, including Minnesota probate cases.

As the judge questions each party, it mays it look like it’s fairly easy to represent yourself in court.  However, these shows rarely tell you that they’ve provided these litigants with a highly simplified process for presenting their cases.

In real life, it’s often quite difficult to responsibly handle a complex probate matter on your own without obtaining legal advice from an attorney.  Few lay people have enough legal training and experience to successfully undertake this type of complicated legal process. Far too often, serious problems develop when a person representing herself fails to promptly respond to new court requests for additional information or motions filed by other parties. Furthermore, probate cases can be especially difficult since they often stir up longstanding family disagreements.

Minnesota Courts:  Factors That Help People Decide if They Can Handle Their Own Cases

The Minnesota Judicial Branch provides the public with a Self Help Center website page. It describes factors that can help you decide whether you’re truly capable of handling any type of difficult case (including probate) on your own.  Here are some of the key issues that prevent many litigants from choosing to appear “pro se” or “self-represented” in court.

  • Many probate cases are quite complicated. If you’re trying to probate a loved one’s Will and numerous, bickering family members are involved, you may have to endure some very painful and compromising arguments that could split your family apart for decades. Fortunately, most experienced Minnesota probate attorneys have experience working with difficult or demanding family members and they can help shield you from most of the stressful interactions with your family members and others;
  • Court paperwork can be difficult to understand. Although most courts try to explain matters clearly, it can be difficult to understand unfamiliar terms. Once you hire an attorney, he will know how to respond in a timely fashion to all paperwork received and all claims filed by various parties or creditors interested in the case;
  • You must have strong organizational skills and not feel shy when speaking in front of others in public. While probating a case mainly involves handling a significant amount of paperwork outside of the courtroom, there will be times when you’ll be required to appear and answer questions put to you by the court if you try and represent yourself. This can require time-consuming research and preparation, especially if you haven’t consulted with a probate attorney about any of the most complicated matters involved;
  • Some legal research and analytical skills may be required. If you’re intimidated by the papers (or packet of materials) the court gives you to help with representing yourself – and you’re unable to read statutes or court cases with clear understanding, you may need to seriously consider hiring a lawyer;
  • It can be very difficult to hold down a full-time job while your probate case is pending. If your child gets sick at the last minute or you can’t get time off work one day, you’ll quickly learn how hard it can be to get a court to reset an important hearing or meeting;
  • You’re uncertain if a court interpreter can meet all of your needs. While these court employees (or outside contractors) work very hard to help those who can’t easily speak English or write clearly – they aren’t authorized to provide any type of legal advice;
  • Parties handling probate matters often need strong negotiating skills.

If one or more of these issues greatly trouble you, it’s nearly always best to hire an experienced Minnesota probate lawyer to represent you.

Minnesota Probate Attorneys

If you have questions about the the nomination of personal representative process and/or Minnesota probates, contact Flanders Law Firm LLC at 612-424-0398.

Why Married Couples Should Discuss All of Their Estate Planning Goals

Posted on by jlawyer

Minnesota Probate Law Payment of DebtsMost Minnesota estate planning attorneys encourage couples to create separate Wills since many of them enter marriage with separate property and others inherit it later on.

In addition, a number of today’s newlyweds often have children from prior marriages that they’d like to provide for in the future — and creating separate Wills makes this much easier.

Regardless of your age upon marrying, you and your spouse can more easily achieve your various estate planning and financial goals by discussing them prior to obtaining separate Wills. This often proves crucial since both spouses often work for many years and need to make early decisions about setting up employer-sponsored 401(k) and other benefits.

Your early discussions can facilitate saving up for discretionary travels and even a possible second, vacation home. Your Minnesota estate planning attorney can help you get started by explaining the different types of estate planning tools that are currently available.

Critical Topics Couples Should Discuss Regarding Their Estate-Planning Goals

  • Decisions involving any children you may have. Apart from discussing how many children, if any, you may want, it’s important to realize that you’ll need to agree on the best ways to provide for your children’s education – preferably in a manner that won’t interfere with your retirement savings plans. You should even specifically discuss what percentage of your children’s college or graduate school expenses you’ll be willing to shoulder, based upon your current and future income;
  • Where do you hope to live once you reach your 70s or later years – and how do you want to try and finance that lifestyle? Growing older always happens much faster than we expect. This is why you and your spouse should give thought early on to where you hope to live day once health and mobility issues make changes necessary;
  • Discuss your willingness to purchasing long-term care insurance policies now. These are often quite expensive and can usually only be purchased before you enter your “golden years.” If you don’t buy these, the surviving spouse may one day have to spend a considerable amount of your combined wealth to pay the inevitable “last medical” expenses so many health insurance policies always try to avoid covering. Of course, you should both also plan on buying the most comprehensive (yet cost effective) basic healthcare insurance policies you can afford;
  • What extended family obligations do you both need to address? Often at least one spouse will have an elderly parent needing some financial assistance. If that spouse doesn’t have any separate property or wealth, you’ll need to decide what the two of you can start doing now to try and provide for this person’s needs. Likewise, if either of you have a child who is disabled in any way, you must also discuss how to make future provisions for that person;
  • Travel and vacation goals. Do you have long-term travel goals you both wish to start financing now?
  • Future schooling for either spouse. Is there a chance either one of you will return to school one day — either to complete a degree or obtain training in an entirely new field? Be sure to discuss how you might create a highly flexible education savings plan that could accommodate this future possibility;
  • Investment decision making. Which one of you should possibly take the lead with making investments for the two of you?

Minnesota Estate Planning for Married Couples

Although this list isn’t intended to be fully comprehensive, it should help newly married couples start setting priorities early on – while also obtaining their Minnesota estate-planning attorney’s advice on which tools can best help meet most or all of these goals. It may also be wise to hire a financial planner who can provide additional insights while you’re obtaining a full portfolio of estate planning documents from your lawyer.

To talk more with a Minnesota attorney on this topic, call the law firm at 612-424-0398.