Joint tenancy designations fail to take into consideration the risk of incapacity (like illness or a coma), along with the death of each spouse.

These types of questions and concerns are common during the estate planning process. And, it can be quite surprising to address the pros and cons of designing better strategies for a family home.

Many married couples who purchase a home ask for joint tenancy. Others make even a bigger mistake by selecting tenancy in common.

That aside, many couples forget what they designated, until it is far too late. In general though, joint tenancy means that two or more individuals or entities have shared ownership of the real property.

One of the many reasons two people might do this, is to protect one another in case of death. For example, when a person dies as a joint tenant, their ownership is automatically transferred to the other tenants. Even as we grieve, the surviving owner will automatically be the sole owner of the property.

Unfortunately, for families who have not transferred their home into a trust or were unable to complete a transfer on death deed, joint tenancy is still a flawed strategy.

Joint tenancies fail when a surviving spouse dies, gets sick, and or becomes incapacitated. This risk can be lessened by designating an attorney in fact, using a revocable trust, and a host of other supporting documents.

Having multiple trustees named in a trust document can offer several advantages. However, it also comes with its own set of challenges. Here, I will explore the pros and cons of having more than one trustee acting simultaneously.

Pros:

1. Diverse Expertise: Having more than one trustee can bring a variety of skills and expertise to the management of the trust. This can be especially beneficial if the trust involves complex financial or legal matters, as each fiduciary may have a unique perspective and knowledge base.
2. Checks and Balances: Having more than one trustee provides a system of checks and balances. This helps prevent the abuse of power or decision-making by a single individual, reducing the risk of fraud or unethical behavior.
3. Continuity: In the event that one trustee becomes incapacitated, resigns, or passes away, having multiple trustees ensures continuity in trust management. This is particularly important for long-term trusts that span several generations.
4. Reduced Burden: Mandated duties can be demanding and time-consuming. Distributing responsibilities among multiple trustees can lighten the workload for each individual, making it more manageable and reducing the risk of burnout.
5. Consensus Decision-Making: Having more than one trustee encourages a collaborative approach to decision-making. This can lead to more thoughtful and well-rounded choices as trustees must come to a consensus, taking into account various perspectives.

Cons:

1. Communication Challenges: Coordinating decisions among multiple trustees can be challenging. Differences in opinions, communication styles, or conflicting schedules may lead to delays in decision-making, potentially impacting the efficiency of the trust management. Take into consideration the challenges of adding an Attorney in Fact, and communication challenges can really get out of hand.
2. Conflict of Interest: With more than one person or corporation making decisions, there is a higher likelihood of conflicts of interest arising. Each party may have their own personal or financial interests, leading to disagreements over trust management decisions.
3. Complex Administration: The administration of a trust can become more complex with multiple trustees, especially if they are located in different geographic areas. Coordinating meetings, managing paperwork, and ensuring compliance may become more intricate.
4. Costs: Having more than one trustee may lead to higher administrative costs. Each fiduciar may be entitled to compensation for their services, increasing the overall expenses associated with trust management.
5. Decision Deadlocks: Disagreements among trustees can lead to decision deadlocks, where the inability to reach a consensus hinders the progress of important trust matters. This can create frustration and may require legal intervention to resolve.

While having more than one trustee can offer benefits such as diverse expertise and checks and balances, it also introduces challenges like communication issues and conflicts of interest. Careful consideration of the specific circumstances and goals of the trust is essential when deciding whether to appoint multiple trustees.

Accessing Facebook for deceased family members can be critical for the estate planning process. Of course, after a family member dies, we want to connect with everyone who was their friend or family. For this, Facebook can be very important.

That said, consider everything else, like photos, birthdates, and important dates. When our family members die, their digital assets need unlocking.

In the digital age, our online presence has become an integral part of our identity. Social media platforms, such as Facebook, play a significant role in connecting people, sharing memories, and preserving a digital legacy. However, when a loved one passes away, accessing their Facebook account to manage or memorialize it can present unique challenges.

In this article, I will explore the steps and considerations for accessing Facebook on behalf of a deceased family member.

Facebook’s Memorialization Feature

Every social platform comes with a set of challenges. Facebook claims they recognizes the delicate nature of dealing with a deceased user’s account and has introduced a memorialization feature. Their memorial tool allows family members and friends to request the memorialization of a deceased person’s account. Once memorialized, the account serves as a place for friends to share memories, but no one can log in or make changes to the account.

Accessing Facebook for deceased family members is frustrating. Without taking into consideration specific digital asset laws, a personal representative or trustee can also ask for help during the probate process. When time is of the essence, probate isn’t always the best first step.

Requesting Memorialization

To initiate the memorialization process on Facebook, consider these steps:

1. Verification of Relationship:
   • Facebook requires verification of the requester’s relationship to the deceased. This can be done by providing the deceased person’s obituary, a link to an online memorial, or other documentation.
   • Do not go crazy with your verification. Sending a copy of an entire trust document is never recommended. More so, dates of birth and social security numbers must be protected.
2. Submit a Request:
   • Use Facebook’s online form to submit a request for memorialization. The form includes details such as the deceased person’s name, account URL, and the relationship to the requester.
3. Provide Proof of Death:
   • Facebook requires proof of the person’s passing, usually in the form of an obituary.
   • Likely, the idea of accessing Facebook for deceased family members is in preparation of a funeral. Facebook is not your friend and you should never freely send off an official document like a Death Certificate.
4. Await Confirmation:
   • Facebook reviews the submitted information and, upon approval, memorializes the account. The requester will receive a confirmation email once this process is complete.

Legacy Contacts

In addition to memorialization, Facebook says they grant users an opportunity to appoint a “legacy contact” before their passing. A legacy contact is someone designated to manage the memorialized account, post information, and respond to friend requests.

Unfortunately, this usually goes bad when the legacy contact doesn’t align with certain estate planning documents.

Conclusion

Accessing Facebook for deceased family members requires a delicate balance of law, respect, adherence to platform policies, and a careful approach to preserving a digital legacy.

By following the memorialization process and considering the legacy contact option, you can navigate this challenging task with sensitivity and honor the memory of your loved one in the digital realm. If you cannot, perhaps that is a signal for additional support.

Famous estate planning cases are known for their money. However, the real reason famous cases go bad, is due to their poor planning. Here is a brief list of some very notable estates gone wrong:

1. Estate of Duke v. Commissioner: This case involved the estate of Doris Duke, one of the wealthiest women in the world at the time of her death. The case centered around the valuation of her estate for tax purposes.
2. Estate of Michael Jackson v. Commissioner: This case involved the estate of the late pop star Michael Jackson and focused on the value of his name and likeness for estate tax purposes.
3. Estate of Ted Turner v. Commissioner: This case was interesting because Ted Turner is presently, still alive. Nonetheless, it involved the estate of a media mogul that centered around the valuation of his ranches for estate tax purposes.
4. Estate of Elvis Presley v. Commissioner: This famous estate involved the legendary singer and actor Elvis Presley and focused on the valuation of his image and likeness. Something any social influencer may want to consider for themselves too.
5. Estate of J. Paul Getty v. Commissioner: This case involved the estate of oil tycoon J. Paul Getty and centered around the valuation of his art collection for estate tax purposes.
6. Estate of Ray Charles Robinson v. Commissioner: This case involved the estate of the late musician Ray Charles and focused on the value of his copyrights for estate tax purposes.
7. Estate of Richard Mellon Scaife v. Commissioner: This famous estate involved the estate of billionaire Richard Mellon Scaife and centered around the valuation of his personal residence. When ever we start talking about personal residence, we also must consider whether the right state was picked as their primary domicile.
8. Estate of Brooke Astor v. Marshall: This case involved the estate of philanthropist Brooke Astor and focused on allegations of fraud and undue influence in her estate plan.
9. Estate of Anna Nicole Smith v. Marshall: This was an issue about a surviving spouse. Of course, it focused on the late model and actress Anna Nicole Smith and centered around her claim to a portion of her late husband’s estate.
10. Estate of Marilyn Monroe v. Miller: This case involved the estate of the iconic actress Marilyn Monroe and focused on the ownership of her image rights.
11. Prince. Unfortunately, this case was a disaster from the very start. Very poor planning strategies considered by the late great Prince.

Of course, there are many other famous estate planning matters. That said, a short list of cases that shaped the field of estate planning over the years.

A trustee checklist will look different as time moves forward. In other words, the administration of a trust immediately after death and post death looks different. Here are some To-Do’s immediately upon death of a Grantor.

• Say a prayer for the person who died,
• Decide whether organ donation is needed,
• Contact a medical school if an anatomical bequest was made,
• Make arrangements to secure the decedent’s home,
• Decide on funeral or memorial services,
• Lockdown digital assets,
• Contact the Social Security Administration,
• If the decedent was a military veteran, contact the Department of Veterans Affairs to determine, whether disability benefits should cease and if there is an opportunity for burial rights.

A trustee checklist is a must. This is especially im

A trust mistake often occurs with refunds. In the post-mortem administration of property, trustees sometimes work to fast at closing out a revocable trust.

Refunds from prepaid insurance, taxes, rents, etc. are often unanticipated and slow. Prematurely distributing assets can be detrimental to the management of the trust.

For example, consider the event when a trustee mistakenly closes out a checking account. In the following month, a refund check is delivered to the mailbox. If the bank account assigned to a trust had already been closed, it will be very difficult or almost impossible to deposit a refund check without some for of probate administration. Although inadvertent, a trust make has occurred.

An additional trust mistake can occur when there are unpaid bills. Again, trustees who fall for the trap of a “just getting this over with” mentality, unpaid bills can create personal liability. In other words, when the trustee mistakenly pays out funds before all bills have been paid, specifically taxes or utility bills, the financial impact to the bigger picture can be detrimental.

Therefore, trustees must be prudent and diligent versus fast.

The Gregory brothers have an interesting story about family dynamics. As told through Minnesota’s Court of Appeals, the Gregor brothers had a sibling “clash” with their sister over a 4th generation farm.

As the story went, Grandma’s will distributed a 95-acre farm equally between her adult children.

Unfortunately, the sons disagreed with the sale of the farm and aired their animosity publicly.

This sibling clash was described in a recent case called A21-1231. Here, we learn about animosity, family problems, and a few key laws.

Sibling Animosity: Lesson 1

The first lesson was about animosity. Animosity is rarely a reason for a Court to remove a personal representative. However, an emotionally unstable executor might be enough.

Certainly, lots of siblings disagree with one another. Even so, would you consider your own sibling as emotionally unstable?

For those wondering, that was a rhetorical question only . Nonetheless, the above case reminds us that sibling relationships are not always easy.

Protecting an Estate: Lesson 2

The second lesson we get is the idea that protecting an estate by seeking a court approval is an aplaudid practice, especially within a probate proceeding.

On the other hand, had Grandma considered a trust, perhaps the clash between the Gregory brothers and their sister could have been avoided.

Court Petitions: Lesson 3

Third, we are reminded that just about anybody can petition a court and ask for the removal of the executor. When this happens, Minnesota law 524.3-611(a) tells us that the court must fix a time and place for a hearing.

Conflict of Interest: Lesson 4

The fourth lesson we can learn from the Gregory brothers is the idea that problems sometimes arise when a member of a family wears too many hats, otherwise known as a conflict of interest. For example, naming an adult child as a personal representative, while knowing they are also might inherit property as a beneficiary might be construed as a conflict of interest.

This case centers on a clash between siblings”

Scott County District Court, File No. 70-PR-20-9342

Of course, a lot of times, adult children are the best candidates to serve as our personal representative. despite the risk. Really, it depends on the dynamic of the heirs and communication.

When there is a doubt, we turn to laws and rules. In Minnesota, the rule is actions inconsistent with carrying out the terms of the wills or delayed, mismanaged, wasted, or misappropriated estate assets causes a conflict of interest. See Munson, 57 N.W.2d at 29; Matteson, 245 N.W at 382.

Thus, whether a conflict of interest arises during the course of administering a will or trust depends on the circumstances.

Therefore, learn from sibling clash outlined above and consider engaging an estate attorney.

RMD is an acronym for “Required Minimum Distribution”. RMD is a fancy term used to describe rules on time and money impacting retirement plans. In other words, how much money must a person take from their retirement product in any given year?

Absolutely, RMD is important from an estate planning perspective too. But, if this is your first time addressing this, let us start slow.

Rules and laws for RMD requirements come in two flavors:

• Rules during a person’s life, and
• Rules after a person dies.

Where To Start with RMD?

Really, you already started, so there is that. Now, let us add a second piece. What are the rules?

What makes a rule easier to follow are those that are written down. Rules spoken about as if everybody knew them are unfair. Why? Because most people have never read RMD laws.

Luckily, you are different and took it upon yourself to start reading about Required Minimum Distributions because you want to know how it impacts your retirement, spouse, and adult children. Thus, good for you!

RMD Rules and Laws

Like I mentioned earlier, I like rules that are written down.

Here is a short, but not complete list of laws and rules that apply to RMD requirements:

• IRC 401(a)(9),
• 26 CFR 1.403(b),
• 26 CFR 1.408,
• 26 CFR 54, and
• 26 CFR 1.402.

On the other hand, if you are looking for the specific law when everything started, you can begin your search with P.L. 99-514.

Required Minimum Distribution Laws are Important

From an estate planning perspective, RMD rules and laws are important for our trustees, beneficiaries, spouses, and us as owners of accounts.

Certainly, leaning on professionals makes sense because these rules have long term impacts. On the other hand, these rules are important because they impact our money and tax bill.

For this reason, I believe individuals and families willing to spend time to create a personal RMD roadmap are helping their trustees, spouses, and children in the long run.

Did you see the mean obituary floating around on the internet from a Minnesota family?

Until now, I had not seen anything like it.  At first, I found the obit amusing because it was so unusual.  After 24 hours, I have come to my senses.

Writing a Mean Obituary is Bad Judgment

Writing an obituary is hard.  Using an obituary to send an ugly message is bad judgment on many fronts.  Here are a few reasons:

1. The act of dying is a teaching moment.  Likewise, caring for our dead is a teaching moment too.
2. Obituary notices are viewed as a legal notices to the general public.  Future generations need a clean slate.
3. Writing a hurtful obituary breaches the Golden Rule
4. Wishing another person damnation violates simple Christianity teachings
5. Bearing a false statement (even in an obit) breaks the 10 Commandments

Should You Criticise the Drafter?

Of course writing a mean obituary is an easy trap to fall into.  Usually, these types of notices are written a few days after a person’s death.  Death inspires emotion, good and bad.  Unfortunately, an unclear mind led to bigger problems.

To prevent this issue, I like the idea of using this example to inspire others to draft their own obituaries.  I get it, it sounds morbid.  But really, it is an opportunty to reflect and set future goals.  If it helps, call it a Legacy Letter.

Either way, it is a sure way to avoid a mean obituary and reduce stress for our family.

Elements of a Happy Obituary

Writing a happy obituary means shooting for a Grimmy Award.  For those wishing to take on this exercise, here are a few tips:

• Use a youthful picture,
• Include a name, maiden nam, and nick name,
• Identify a birthday and date of death,
• Reference children by their first name,
• Limit grandchildren to a number.
• Embed a catch phrase used by the deceased,
• Express talents and joys,
• Describe what the deceased gave to others,
• Include a reference to their military service, and
• Make reference to a final resting place

There are ten (10) informal probate steps in Minnesota.  Some folks need help from an estate attorney, while others do not.

Nonetheless, lets quickly address a few quick steps to assist with this process.  So you know, everybody asks:  what is the difference between an unsupervised probate versus a supervised informal probate?

If you had no idea there was a difference, no big deal.  Maybe these steps can help you too.  In my opinion, deciding and selecting the right probate process is a critical first step.   The major difference between both types of an informal probate is liability.  Generally, very few people want to be held liable for debts owed to a creditor.

Thus, here is part of what I look at when trying to make this decision:

First 5 informal probate steps

Both an unsupervised and supervised informal probate starts the same.  The first five (5) steps are:

1. Filing an application with the right court or venue,
2. Having an informal meeting with the assigned Registrar (yes, the Registrar will review the application),
3. Sharing the correct notice of appointment with every interested person,
4. Fling an affidavit with the court, and
5. Asking the court to issue letters appointing a personal representative.

Next 5 informal probate steps: Unsupervised

The next five (5) steps for an unsupervised process are:

1. Asset collection,
2. Inventory preparation,
3. Settling claims with creditors,
4. Tax returns, and
5. Estate distribution.

Next 5 informal probate steps: Supervised

The next five (5) steps for an supervised process are:

1. Asset collection,
2. Inventory preparation,
3. Settling claims with creditors,
4. Tax returns, and
5. Seeking a court order.

What is the difference?

Again, the major difference between both types of an informal probate is liability.  Generally, very few people want to be held liable for debts owed to a creditor.

Yes, reducing liability owed to a creditor, taking the right steps to account for the assets of another person and distributing their assets accordingly to the rules of their will or a court is a responsibility imposed by law.

Finally, consider reviewing these rules and laws to help your decision making process.

When I meet with families for the first time, identifying a corporate trustee within a revocable trust is always an unusual conversation.

Before describing why, lets quickly outline what it means to identify a third-party trustee that is unrelated to you and your family.

A corporate trustee is a business or entity (like a bank or wealth management company) that agrees to manage and administer a trust.  As you might suspect, this agreement is based on paying a service fee.  Generally, this is where people back away.

Really though, I like the idea of engaging an entity as a back-up to the back-up for one reason:  just in case we all die.  Here is what I mean.

Corporate Trustee:  Everybody Dies

Like you, I do not like to think about my death.  Taking this nightmare to the next level, I do not like the idea of thinking about dyeing in a car accident with my closest family matters (minus the one grandchild  or child hanging out with a babysitter).   Far fetched, but possible.

Anyways, I love the idea of making sure my trust has the power to implement Minnesota statute 501C.074, versus making a trustee or guardian seek authorization from a court to fill a trustee vacancy.  I like this idea because I want my assets distributed amongst my beneficiaries versus court fees.  Also, I cannot predict the far fetched future (North Korea?).

Even better than adding the Fancy in Trusteeship or Successor Appointment rule is helping out by selecting an entity to act as my corporate trustee.

Thus, updating a revocable trust to account for vacancies makes sense.

Corporate Trustee:  Running from Fees

Of course, the one reason people balk at the idea of selecting a corporate trustee (even as a back-up to the back-up) is the fear of paying corporate fees.  Certainly, I agree.  If ATM fees make you go crazy, corporate trustee fees might make you sick.

On the other hand, family dynamics can be the deciding factor.  Some realize their family is not sophisticated enough to manage a trust, while others are fearful of family members arguing over silly things.

The intentions of the settlor (the person who made the trust and identified a third party to manage it) is what matters most.  In my experience, having a person with specialized knowledge to administer a trust can be a breath of fresh air.

Corporate Trustee:  One of My Favorite Approaches

The value of thinking through the issue of selecting a corporate trustee is sometimes overwhelming.  Although not for everybody, one of my favorite approaches is selecting a personal friend or family member as my trustee and making a corporate trustee their partner.  In other words, both serving as co-trustees.

Personally, I think this accomplishes a handful of goals:

• Reduces fiduciary stress,
• My trustee can lean on an entity I pre-selected,
• And, if my trustee gets sick or is no longer able to help, they have a back-up too.

Final Thoughts

Just to be clear, a person wishing to create a revocable trust is not required to select or identify a corporate trustee.  Instead, I only bring to your attention because it is a nice alternative for people concerned about selecting a trustee or not knowing enough trustworthy people to manage their affairs.

Today’s news of a cyberattack on the banking system in Ukraine is a horrible reminder how vulnerable we really are.

On the other hand, none of my Clients leave my office without understanding whether they should store their estate planning documents in the cloud.

In my opinion, storing some or part of an estate plan in the Cloud can prevent problems down the road.  Provided hardcopies are not compromised by changes or edits, nothing beats a cyberattack like having hardcopies

If you need help or advisement how to store, preserve and keep such things, please contact me for help.

Every once in a while, somebody will tell me “I lost my will”.  The next question I often get is “what should I do”?

Well, I think the answer is obvious.  Look in the last place it was placed.  Unfortunately, when we cannot remember, others might start to question our sound mind.

As a result, I believe time is of the essence and drafting a new will is a necessity (ASAP).

Lost Will and Its Impact on a New Will

Generally, the impact of a lost will on a new will is negligible when testators add a revocation clause to their new will.  In other words, a clause that revokes any and all previously formulated wills.

Assuming the revocation clause is drafted properly, problems can be significantly reduced.

Have you Seen my Lost Will?

With the exception of asking the person who drafted it, asking others about the location of a lost will might create more problems.  First, it puts others on alert for diminished capacity.  Second, the threat of a lost will doesn’t negate or prevent the formation of a new will.

Thus, I hope you find your lost will.  On the other hand, don’t put off the opportunity to enter into a new will, when we still have time!

Take a guess who profits the most when you die without a plan.  Yes, failing to make a plan might actually generate more revenue for attorneys and your family.

So yes, die without a plan makes life better for everybody except  your family.

On the other hand, I believe making choices today can be the saving grace for a happy family.” 

Here are a few ways you help your family:

• Giving them permission to transfer your stuff before entering a nursing home,
• Picking a back-up guardian for your child,
• Helping them determine whether you should be buried or cremated,
• Picking a quarterback to facilitate your estate,
• Picking a back-up quarterback to handle your estate,
• Helping your family identify heirlooms (like wedding rings),
• Identifying a home for your pets, and
• Everything else.

Of course, if your family member didn’t have a plan, Minnesota protects families from unreasonable probate costs.

Die Without a Plan

In case it isn’t obvious, no, I do not want you to die without a plan.  In fact, I think we can offer tremendous value to our families (small and large) when we give them help.

Thus, please share this with others if you agree.

So, your Trustee is dead?  First, I sympathize with you and your family.  Second, lets assume the trust was valid.

Generally, these are the next couple of steps:

• Read and follow the trust document(s),
• Comply with Minnesota’s Duty to Inform and Report, and
• Consider whether general and specific powers of a trustee are applicable.

Trustee is Dead:  Do this while Alive

If at all possible, I believe every trustee should have a backup plan.  In other words, have a conversation with the back-up trustee or successor trustee.

During this conversation, make sure they are willing and able to step into the role when called upon.  If at all possible, keep accurate notes to help the back-up trustee step into your shoes.

Trustee is Dead and I am the Backup

For those stepping up because the trustee before them has since died, I think engaging professional advisement is always prudent.  After all, being a trustee is a lot of work.  And, having advisors like a financial planner, accountant and attorney can reduce problems.

Trustee is Dead and I do Not Know What to Do

Not knowing how to proceed is a common fear.  In my experience, the most surprising part is how much time the position of trustee can require.  Whether this means running mom to the doctor, paying her bills, keeping the house up or making sure her taxes are filed, it is an administrative task like none other.

On the other hand, it is a lot easier than running to and from a probate court.  For this reason, a trustee that is no longer able to render services is a good problem to have.

Am I Liable when my Trustee is Dead

Here is the number one reason to jump on the transition process for a trustee:  liability.  Yes, trustees can become liable for errors and tardiness.

Thus, the transition process should be engaged immediately.

Creditor Probate Claims are likely one of the biggest stresses a family will encounter.  Luckily, our Minnesota laws have tried to sort through the mess by helping us rank or prioritize creditor claims.

Without question, the grieving process is painful on its own.  If part of your stress is trying to sort through Creditor Probate Claims, use the law to your family’s advantage.

Imagine if…

If you put every creditor in a room and asked them who wanted a dollar from your loved one’s estate, who would jump first?  Yes, if you allowed every creditor to line-up and argue why they should get paid, Creditor Probate Claims would turn into fist fights.

Because Minnesota probate law 524.3-805 ranks which creditor will get paid first and which creditor will get paid last, fist fights are less likely.

Creditor Probate Claims – 1st Priority

Whom ever was responsible for writing Minnesota statute 524.3-805, they identified court fees, court costs, accountants, and attorney’s as the group of entities having the first priority over every creditor.  Yes, this is true even if a creditor has a lien.

2nd Priority of Creditor Probate Claims

Would you believe the average cost of a funeral in more than $7,000?  The second group of creditors having more rights than other creditors goes to funeral expenses.

Likely, our legislators made it this way to encourage funeral homes to help lay to rest those who are insolvent or in need.

The IRS wants their cut too

The third ranking creditor is the IRS.  If you are connecting the dots, the government has purposely identified those with a 1st priority of creditor probate claims so there is an incentive to assure our federal income taxes are properly paid.

I am sure those in power would encourage a better solution.  As it stands now, this is our system.

Medical Bills

Generally, medical bills are closely related to a person who has recently passed.  Creditor probate claims for medical bills are 4th and 5th place with a distinction being medical bills for the care of the decedent during the year immediately preceding death.

Minnesota is in 6th Place

Yes, the sixth ranking creditor is Minnesota.  In other words, any tax owed to Minnesota’s Department of Revenue is deemed less important than the expenses listed above.

Creditor Probate Claims for everybody else

Everybody else is left to 7th place.  Of course this is where lien prioritization and secured transactions become relevant.  However, lien prioritization is a topic for a different post.

Again, if you or your family needs help with creditor probate claims, please contact this law office for help.

What does a Personal Representative in Minnesota do?

Well, I am glad you asked.  A Personal Representative in Minnesota has many jobs.  Whether a person seeks their position through the court process or they were selected within a Will, every PR is responsible for the rules.

If you were not selected as the Personal Representative, do not be disappointed.  Maybe just maybe you get appointed down the road.

Regardless of your role, offering support to the deceased person’s family and friends is critical.

Personal Representative in Minnesota:  When?

A Personal Representative in Minnesota can only serve after somebody dies.  A personal rep or executor isn’t technically responsible for anything until the death of their loved one.

On the other hand, a person serving as a trustee or attorney-in-fact might have responsibilities outside the scope of a PR.

Duties of a Personal Representative

Under Minnesota rule 524.3-703, you will find an outline of duties and responsibilities imposed on a Personal Representative in Minnesota.

The first and the most important duty of a Personal Representative is a fiduciary duty.  This means the Personal Representative in Minnesota is observing the standards of care in dealing with the estate assets.

Also, the Personal Representative in Minnesota has the duty to settle and distribute the estate of the loved one in accordance of the terms of a Will submitted for probate.

In other words, actions taken by a Personal Representative is governed by an applicable law, the terms of the Will, and any order granted by a Probate Court.

I Don’t Want to be a Personal Representative

Yes, Minnesota law recognizes a Personal Representative may not want the above referenced duties and responsibilities and or the PR  may feel like they do not have specific knowledge in order to serve in this capacity.

Do not despair.  The goal of an executor or PR is to facilitate an estate.  Likewise, Minnesota law says a Personal Representative shall not be surcharged for acts of administration or distribution if the conduct in question was authorized at the time.

Protection for a Personal Representative

Lets keep this simple.  An executor’s job is to divide up stuff and distribute it accordingly.  Generally, a Personal Representative in Minnesota is protected from any surcharged acts of administration or distribution provided the acts were authorized at the time they occurred.

What should an Executor Do First?

If the PR is slow to the mix, then a creditor might jump in first.  Thus, an executor either has to educate themselves on the probate process and acquire support.

The informal probate Minnesota process is different in every County.  Even though this topic can take a lot of twists and turns, do not despair.

First step to the informal probate Minnesota process

Every informal probate Minnesota process should start by identifying a point person.  The point person, also called a personal representative, is the person in charge of forms, notices, filings, administration, etc.

Yes, as long as the person is 18 years of age or older, the point person can be a spouse, child, parent, friend, sibling, or any person willing to accept the job.

Do you need a Will to complete the informal probate Minnesota process?

No, a will does not exclude you from seeking the informal probate Minnesota process.

On the other hand, if your loved one had a will, the informal probate process in Hennepin County should be much easier because the first step of seeking a point person will likely be satisfied.

What if nobody is willing to volunteer?

Keep this in mind, a creditor or any person claiming to have an interest can ask to be the point person or personal representative.

As a result, do your very best to pick a person to assist in this process. 

Second step in the informal probate Minnesota process

The second step in seeking the informal probate Minnesota process is registering for e-filing.  What?

Yes, the point person (if they handle this process without help from a lawyer) should consider registering for the e-filing process.  Unfortunately, the e-filing process in Hennepin County is mandatory

Where to find forms for the informal probate Minnesota process

If you are looking for forms to help you with the informal probate Minnesota process, consider these three resources:

1.  Minnesota’s law library,
2. Minnesota’s Court Forms website, or
3. You can buy forms from Miller Davis Company.

What information is needed for an informal probate Minnesota proceeding?

Every application seeking approval for the informal probate Minnesota process needs the following information, which is outlined in Minnesota rule 524.3-301:

• An outline why you have an interest,
• Name, birth-date, and records for the person who died,
• If the person who died had a spouse or children, the application will require their contact information,
• A statement on why the County you selected is appropriate,
• Information concerning creditors (if known).

Who approves or denies an application for informal probate in Minnesota?

An application for an informal probate proceeding is accepted or approved by the County’s registrar.

If approved, the personal representative or point person can proceed with other duties and responsibilities associated with an informal probate process.

Final thoughts

Again, if you need help with this process, contact this law office for help.

What if you had to pay back your inheritance?  Sounds crazy, right?  Well, not so fast.

Recently, I came across a personal representative who completed an informal probate process on their own through the probate process in Hennepin County.  The person that died was their parent.

During the this process, no will was found and the probate court divided the estate into three parts:  50% to the personal representative, 25% to a niece and 25% to a nephew.

Unfortunately, a will was found AFTER the estate was closed.  Even worse, the will stated the personal representative (the parent’s child) should receive 100% of the estate, which was different than what had been previously provided.  Now what?

Luckily, there are rules and laws in place to help facilitate this problem.

Laws to pay back your inheritance

In Minnesota, rule 524.3-1006 limits an ability to force or make another person pay back your inheritance if it has been more than one year after the estate was distributed or three years after the decedent’s death, which ever is “later”.

This means Minnesota probate laws support not returning an inheritance if it was incorrectly paid only if the time periods have expired.

Pay back your inheritance – exceptions

On the other hand, a beneficiary might be compelled to pay back your inheritance for the following reasons:

• You are within the three year time limit, or
• A beneficiary engaged in fraud.

Balance the value of your inheritance

Another element I believe is very significant is the balance of relationships.  In other words, should the personal representative re-open the estate to “take” more money?

In the above example, the personal representative was excited about finding their parent’s will because it meant their inheritance should have been $5,000 more.  Is an extra $5,000 worth engaging a lawyer, re-opening a probate case and using procedure to make beneficiaries pay back your inheritance worth it?

Would your answer change if the gift increased to $10,000 or $50,000?

Yes, these are difficult questions to answer and the dynamic of your family is a critical piece to consider.  In my opinion, there are multiple factors to consider, which makes every probate different.

Do you need to pay back your inheritance?

Please contact this law office if you need help with determining if you should pay back your inheritance.

Trust breach happens when your children decide to argue over semantics.  Would you rollover, in your grave, if your children sued one another ten (10) years later?

Well, this actually happened in a case called In re: The Frank John Rodriguez Sr. Trust.  As unfortunate as it is when trustees are sued by beneficiaries, we can learn a lot from this public case.

Really, I believe the punchline for the Rodriguez family comes down to cordial communications and unconditional love between siblings.  Unfortunately, it doesn’t appear either of these attributes existed.

First lesson in preventing a trust breach

In my experience, most if not all trustees are trying to do the right thing.  Sometimes this works out perfectly.  Other times, sibling rivalry kicks in and every decision gets scrutinized.

Money is not the issue.  Instead, family dynamics is the controlling factor.  Not every family is equipped or able to handle a trust for an estate.  I have seen many examples where a parent’s estate should have been divided in equal shares.  Yes, you have a choice.

What I am really trying to say is this:  you know your family better than me and I encourage every person to reflect and predict the behavior of their family members.  For example, ask yourself:

• What might go wrong?
• Do my children or their spouses disagree a lot?
• Are they mentally strong enough to make black and white decisions?
• Is there a good reason why equality of an inheritance is a bad idea?

Second lesson in preventing a trust breach

The second lesson we can learn from the case above is the following rule:  a trustee must manage trust assets as a prudent investor, considering the purposes, terms, distribution requirements, and other circumstances of the trust.

Yes, every person wishing to form a revocable trust should select their trustees wisely.  More importantly, a trust document should help the trustee.  Even from your grave, you can impact your family by helping them:

• Identify trustworthy professionals or entities for assistance,
• Allowing for a corporate trustee, and or
• Leaving room for an error of judgement.

Third lesson in preventing a trust breach

The third lesson we can take from this case is the fact we as people can prevent or reduce the likelihood of a trust breach by engaging in open communications.

Communication needs to extend beyond text messaging and Facebook postings.  I am talking about sitting down for an hour or two and working through details.  Those who need help can:

• Retain an agent like an attorney,
• Use mediators, and or
• Choose a public setting to reduce tension.

Getting back to the case above, Brother is upset with Sister.  If you have a sibling, perhaps you have experienced this too.  What makes this case unique is the issues being argued.  Here, Brother believed he received an offer from another person wishing to buy their dad’s property at twice the value.

In my experience, an offer to purchase property works through a real estate agent and or the usage of a purchase agreement.  This case doesn’t appear to have either.

Also, the Court does not explain why a firm offer failed to exist.  Even more significantly, my gut says Brother wanted conflict more than the sale of his dad’s house.  Additionally, contract law fails miserably and works against Brother.

Fourth lesson in preventing a trust breach

Certainly, we could find more, but the final lesson I believe goes without saying when working through a Minnesota trust breach is:  attend scheduled court hearings.

Yes, Brother missed a court hearing.  When a person misses a court hearing, their goals sometimes turns into asking a court to start over.  Yes, a trust breach can start over under rule 60.02  upon asking a court to review:

1. A mistake,
2. Inadvertence,
3. Surprise,
4. Excusable neglect, or
5. Any other reason justifying relief.

Prevent trust breach in Minnesota

I believe the best step is having a formal discussion to address issues and prevent trust breach.

Please contact me if you want additional information.

What if your trustee dies?  Between you and me, I would much rather be in the position of worrying about a trustee dying versus your death.  Thus, perhaps working through the situation where the trustee dies is not as bad as it might first appear.

If a trustee died and you need help, please contact this law office.

If a trustee dies, who is the trustee?

The first issue is determining who is the active trustee.  A trustee is similar to a personal representative discussed in previous postings.

Generally, a person who is still alive and owner of a revocable trust is their own trustee.  In this situation, if a trustee dies, it is typically worrisome only if the trustee was your primary backup trustee.

On the other hand, if the primary trustee dies, a properly drafted trust document will contain a list of backup trustees.

Who can serve as a backup trustee?

The backup trustee will typically be identified in the trust document.

A backup trustee can be:

• Spouse
• A child 18 years of age or older
• A family member,
• Friend
• Certified Public Accountant
• Attorney
• Investment Advisor
• Private Trust Company
• Bank with trust powers
• Or, a combination of the persons identified above.

What if your backup trustee dies?

If the backup trustee dies, then hopefully the trust document provides a list of successor trustees.  This means the trust document outlines a backup to the backup.

Yes, an option for people to assure security in their trustee selection is to attach conditions or resources to the assigned person.  For example, making it a requirement or duty that your trustee seek affirmation from a CPA or investment adviser.

Another option is granting or assigning your bank or a trust company to manage your trust on your behalf.

If my trustee dies, how many backups can you have?

In Minnesota and to protect against a situation where a trustee dies, Clients at this law office are encouraged to identify as strong list of backup trustees.

For Clients who do not have any living family members or do not like or trust their family members, one can choose a third party for support.  For example, it is very common for people to seek and identify a trustee like their CPA or a private company.

On the other hand, if your trust document does not identify a backup or everybody on your list is no longer living, your beneficiaries are stuck seeking a Court for help.

Help when a trustee dies

If you need help amending a revocable trust to account for the death of a trustee or any related estate planning document, please contact this law office for help.

Buried wedding rings can be problematic when your decision is left with loved ones.

I believe every person can use their will or estate plan to prevent family stress and anxiety.

Below is a brief process outlining how to find a resolution to the buried wedding rings dilemma.

Estate Planning for your buried wedding rings

If a person wants their wedding ring buried in their casket or placed inside a tomb, these wishes should be specifically described.  Generally, I prefer a funeral directive along with a Will or Trust.

In my experience, a funeral directive, which is a document outlining specifics for your funeral, can be easily shared with funeral directors, spouses and adult children.  Having this decision prearranged reduces guessing.

In my experience, using your will to outline your decision is not necessarily a practical document during the funeral planning process because:

• You shouldn’t share your will with everybody around you unless required, and
• Reading your will this soon and openly may cause family conflict.

Additionally, I think a prudent person shares their desires specific to a wedding ring inside their revocable trust and or will.  Yes, to reduce stress and risk, assuring neither document contradicts one another is a significant goal.

Estate Planning to prevent having buried wedding rings

Likewise, people wishing to gift their wedding rings versus the alternative described above can utilize the “specific gift” process within their estate plan.

Yes, this process can be as simple as affirming where, who and how your wedding ring should be gifted at the time of your death.

On the other hand, I have heard many adult children claim their mom told them specifically that they would receive the wedding ring.  As might suspect, it can be surprising to many people when it is discovered neither the will or revocable trust shared or expressed this intent.

I am telling you now – this issue can be solved fairly easily with concrete planning methods expressing your wishes.  Otherwise, risking having buried wedding rings or leaving everything up to chance under Minnesota’s intestacy laws is uncomfortable at best.

Buried wedding rings and your Medical Assistance

Another common question arising from including your wedding ring in an estate plan is whether gifting it now or later will impact medical assistance.

Every situation is different.  In general, medical assistance programs support excluding “personal effects” as an asset.  Sometimes, people seeking this benefit are able to define wedding rings as a personal effect and excluded from a MA calculation.  

On the other hand, jewelry (like a wedding ring) retained because it has value or an investment will likely fail the the “personal effects” exclusion.

Help with buried wedding rings

Buried wedding rings or not, every person has a choice.  Yes, an estate plan is a wonderful way to reduce stress and anxiety for your family.

Please contact me if you need help.

Reasons for formal probate in Minnesota are different for each family.  In my opinion, there are four (4) main reasons a family may want to seek a formal probate process:

1. Children,
2. Problems with a will,
3. Real estate, and
4. No money.

I recognize these issues are complicated and stressful.  If you need help weighing these reasons, please contact me for help.

Reasons for formal probate – children

Putting a child’s best interest first is always number one.  Period.  Luckily, our court system believes this too.

Yes, the number one reason a family should seek the formal probate process is because the person who died had children under the age of 18.  In my opinion, this is true regardless whether a person had a will.

Because probate courts in Minnesota frown on giving children assets outright and our Department of Human Services sometimes get involved, heirs or guardians of minors are appointed responsibilities that will have great significance on a child’s well being going forward.  Thus, children are the number one reason for a family to seek the formal probate process.

Reasons for formal probate – will problems

A second reason a family likely should petition a court for a formal probate in Minnesota is because the will has problems like:

• Unsigned,
• No date,
• Original will was destroyed,
• Handwritten changes to the will,
• The will did not nominate a personal representative, and
• Other will construction issues.

Reasons for formal probate – real estate

More reasons for formal probate include real estate problems like a home needing to be sold.  Generally, this issue does not come up with couples where one spouse is still alive.

Other times, the necessity to seek a process to maintain a home (heating, general maintenance, etc.) to assure our cold weather does have a negative impact on the home or residence is a good reason to utilize the formal probate process.

Reasons for formal probate – no money

Yes, an estate that has no money or is insolvent is a reason for a personal representative to petition a court or venue in Minnesota for a formal probate.

But wait, the person who died has no money?  Even a person who has no money – generally has money of some amount.  For this reason, Minnesota ranks or prioritizes  creditors.

The first type of creditor with an interest in an estate with no money is a funeral home.  The second priority are those rendering professional services.  The third most important creditor is the IRS.

Help weighing reasons for formal probate

I recognize these issues are complicated and stressful.  If you need help weighing these reasons, please contact me for help.

There are nine (9) formal probate steps in Minnesota.  Because everybody asks:  yes, there is a difference between an unsupervised versus a supervised formal process in MN.

Also, selecting the right probate process is even more important if the person who died had no money.

If you are a personal representative and you need help creating forms or complying with the steps outlined below, please contact this law office for help.

First 4 formal probate steps

Both an unsupervised and supervised formal probate starts the same.  The first five (5) steps are:

1. Filing a petition with the right court or venue,
2. Notice for a hearing given to every interested person and entity,
3. An actual formal hearing takes place, and
4. The probate court or venue issues an order.

Next 5 formal probate steps: Unsupervised

The next five (5) steps for an unsupervised process are:

1. Asset collection,
2. Inventory preparation,
3. Settling claims with creditors,
4. Tax returns, and
5. Estate distribution.

Next 5 formal probate steps: Supervised

The next five (5) steps for an supervised process are:

1. Asset collection,
2. Inventory preparation,
3. Settling claims with creditors,
4. Tax returns, and
5. Seeking a court order.

What is the difference?

One of the biggest difference between a formal and an informal probate process is being forced to seek and ask for a Court’s approval.  In other words, acquiring a court order.

Yes, reducing liability owed to a creditor, taking the right steps to account for the assets of another person and distributing their assets accordingly to the rules of their will or a court is a responsibility imposed by law.

If you have time, consider reviewing these rules and laws to help your decision making process.

Need more help?

Whether you are a beneficiary or want to be a personal representative of an estate, please contact this law office for help.

Your spouse died in Minnesota and you need help.  Including me, nobody enjoys talking about death.

During the grieving process and thereafter, consider the following checklist to help you make important decisions.

Step 1: calculate 9 months from your spouse’s death

I agree, focusing on a funeral and making major life changes is stressful.  For a moment, lets assume your family has this under control.

The most significant deadline the living spouse needs to know about is 9 months after your spouses death.  Starting on the date your spouse died in Minnesota, IRS Form 706 has a 9 month deadline.  Wait, what?  What does this have to do about anything?

IRS Form 706 is a special form used by the IRS.  This form allows your now deceased spouse to pass their unused tax exemptions onto you.

If the wealth you and your spouse shared is modest or minimal, perhaps you care less about this 9 month deadline than me.  On the other hand, you would be amazed how quickly life insurance and retirement benefits can turn your modest estate into “I wish I knew about the 9 month deadline”.

Thus, if your spouse died in Minnesota, the first step is knowing there is a 9 month deadline.

Step 2 if your spouse died in Minnesota

If your spouse died in Minnesota, start contacting every insurance company and pension company you and your spouse did business with.  If you do not know how to contact an insurance company, start by seeking information from Minnesota’s Department of Commerce.

If your spouse was working during the time they died, contact your spouses’ employer and ask for information on employee benefits your spouse might have signed up for.

 Step 3 if your spouse died in Minnesota

If your spouse was receiving social security benefits, I recommend contacting the Social Security Administration.  If you have minor children, consider reviewing whether you and your family are eligible for survivor benefits offered through the Social Security Administration.

 Step 4 if your spouse died in Minnesota

The next step is to make sure you and your family have continued health coverage.  If you and your family are in economic need of benefits, public benefits are available here.  If you are a mature adult, you are likely eligible for Medicare benefits, which can be found here.

Otherwise, if your spouse died in Minnesota and you do not know what to do about health insurance, consider this resource as an outline for your options.

Final step if your spouse died in Minnesota

The final step is gathering important documents and financial papers.  For this step, consider using or buying folders having the capabilities of storing thick packets of information.

In your first folder, place important documents before your spouse died.  For example, birth certificates, marriage license, and estate planning documents like a will, health care directive, military records, etc.

In a second folder, place important documents you receive after your spouse died in Minnesota.  For example, a death certificate, bills that you receive in the mail, and any information specific to organ donations.

Need more help?

If your spouse died in Minnesota and you need help, please contact this law office.

Looking for help to Probate e-Filing in Hennepin County?  Figuring out all of the forms necessary to submit a case to Probate Court is not a stress you and your family need right now.

If you need help with a matter concerning probate, you found the right place.

Help with the Probate in Hennepin County

Contact Now

Probate e-Filing in Hennepin County

Unfortunately, e-filing is mandatory for everyone in Hennepin County, regardless whether you are doing this by yourself or as a lawyer.

Hennepin County updated their registration process a short while ago, which leads me to the next question everybody asks.

What is the e-filing and the process?

E-filing is an electronic process used to file documents.  The e-filing court system is mostly implemented in Hennepin County and Ramsey County for civil filings.  Before 2013, e-filing was never required in Probate Court in any Minnesota County.

First problem people face when seeking Probate e-Filing in Hennepin County

One of the first problems a person will face when seeking Probate e-Filing in Hennepin County is a lack of computer experience.

This is especially true for older people who are required to acquire an e-mail address to facilitate the e-filing process.

Is the Probate e-Filing in Hennepin County public?

Generally, anything submitted through the Probate e-Filing in Hennepin County process will become public knowledge.

Unfortunately, this is true given Minnesota General Rule of Practice 11.

Second problem people face when seeking Probate e-Filing in Hennepin County

The second problem people sometimes face when working through the Probate e-Filing in Hennepin County process is the fact every document needs to be filed separately.

In other words, the system does not support combining multiple forms into one document or pdf file.

How do you sign documents when seeking Probate e-Filing in Hennepin County

Yes, documents filed electronically can be signed by using /S/.  In the opinion of this law office, this is a huge area for potential fraud.  Thus, approach each form with care.

Where to find Minnesota probate forms

If you are looking for probate forms to help you with the Probate e-Filing in Hennepin County process, this law office highly recommends these resources:

1.  Minnesota’s law library,
2. Minnesota’s Court Forms website, or
3. You can buy forms from Miller Davis Company.

Probate in Minnesota can be a tangled mess, similar to the picture displayed at the right.  None the less, it doesn’t have to be.  If you are reviewing the probate in Minnesota, use the following as a brief introduction.  If you need help with probate in Minnesota, please contact this law office for help.

What is the process for Probate in Minnesota?

Probate in Minnesota is the legal process of settling your estate in court after you die. Your property is gathered and inventoried, your debts are paid, and everything left over is divided among your heirs. Your personal representative is responsible for “probating” your will. If you have no will or did not name a personal representative, the court will appoint one for you.

Probate in Minnesota when there is a will begins by filing an application with the probate court. Probate in Minnesota ends when all debts and taxes are paid and all assets are distributed. If there is disagreement over your will, a probate judge assigned to the case will resolve the differences.

When is Probate in Minnesota necessary?

The laws specific to probate in Minnesota apply to the estates of people who were residents of Minnesota at the time of their death. Probate in Minnesota also applies to other states’ residents who own real property in Minnesota.

Having a will does not avoid probate in Minnesota. The need for probate depends on what property you own and whether you own it alone or with others. Real estate. Unless real estate is owned in joint tenancy with right of survivor ship or placed into a trust, it must be probated. Joint tenancy means that the property is owned by two or more people who have an undivided interest in the property, and that interest continues in the survivor after other owners die. If you are a resident of Minnesota and own real estate in another state at the time of your death, the probate laws of that state will apply to that real estate. In other words, real estate is probated in the state where it is located.

If your estate is worth less than $50,000, your heirs may be able to collect the property without going to court by using an Affidavit for Collection of Personal Property. Your personal representative should notify all of the heirs of the property that they can collect. Heirs may not take your personal property until 30 days after your death. If your personal property exceeds $50,000 or you own real estate in your name alone, your estate must be probated.

What is not subject to Probate in Minnesota?

Some kinds of property and assets do not need to be probated. These include property owned as joint tenants, jointly held bank accounts, payable-on-death accounts, life insurance proceeds to a specific beneficiary, and pension benefits with a designated beneficiary in the event you die.

As discussed previously, holding title to property in joint tenancy means that you and another person each have an undivided interest in the property and a right to own it after the other person dies. In the case of real property, this fact would be stated in your title documents. When a co-owner dies, the surviving property owner must file a certified copy of the death certificate of the deceased property owner and an affidavit of survivorship with the county recorder or registrar.

As in joint tenancy of real property, you and one or more people may be listed as account holders of the same financial account. If one of the joint account holders dies, the other joint account holders own the money in the shared bank account.

A payable-on-death account is an individually owned account in which you choose someone else to receive the funds in your account upon your death. The beneficiary, or person getting the money upon your death, has no right to these funds until your death. You may set up a POD by contacting your financial institution. You may change the beneficiary by completing a new signature card at any time.

Life insurance proceeds. Your life insurance policy can indicate a specific person, called a “beneficiary,” who will receive your insurance proceeds when you die. Call your insurance agent or company if you are interested in naming a specific person or persons to receive your life insurance money.

How do I Probate in Minnesota?

Your personal representative starts a probate proceeding by filing an application or petition with the probate court in the county where you lived at the time of your death. Probate proceedings in Minnesota may be either formal or informal, and generally must be initiated within three years after the decedent’s death. The services of an attorney may be needed in order to correctly probate an estate.

An informal probate in Minnesota includes filing an application with the probate court. In some counties, you must file the application in person. If the probate registrar determines the application is complete, the registrar will issue a statement of probate and appoint a personal representative. In the informal process, the personal representative may pay debts and inheritances and may otherwise administer the estate without the court’s supervision.

Applications for informal probate in Minnesota should include the following:

• The applicant’s interest in the proceeding (i.e. spouse, child, attorney, personal representative, etc.);
• The decedent’s name, dates of birth and death, and the county and state of residence at the time of death;
• The names and addresses of the decedent’s spouse, children, heirs, and any others named in the will if there is one, and if a person is a minor, listing that person’s age;
• Statement showing venue if decedent was not domiciled in Minnesota at time of death;
• The name and address of the person who is, or should be, named personal representative; and
• Statement of applicant’s knowledge of probate or appointment proceeding concerning decedent filed in Minnesota or elsewhere.

If there is a will, the following also must be included in the application:

• A statement that the original will is in the court’s possession, accompanies the application, or an authenticated copy of a will probated in another jurisdiction is attached to the application;
• A statement that the will has been validly executed;
• A statement that the applicant is not, upon investigation, aware that the will has been revoked; and
• A statement that the time for beginning informal probate proceedings has not expired, which is generally three years after the decedent’s death.

The probate registrar has discretion to either accept or reject the application. It is not a final determination if the registrar rejects the application and does not prevent the will from undergoing formal probate proceedings.

Formal. Filing a petition with the court, starts formal proceedings. The petitioner then must appear before a court at a hearing. Because most people lack experience in formal probate proceedings, it is best to consult an attorney if an informal probate proceeding cannot resolve the estate. If the court finds that the petition is complete, the court will issue an order for probate and appointment of the personal representative.

How will the estate be distributed to heirs for Probate in Minnesota?

If there is a will, the personal representative should distribute the estate property according to the will. If there is no will, the estate property will be distributed according to state intestate succession laws.

The law generally provides that, without a will, your estate will pass to your spouse, if still alive, but in situations where either spouse has children from other marriages, the share of the spouse may be less than the entire estate. If your spouse is not alive, your estate will pass to your children in equal shares. You should consult an attorney to determine exactly how your estate will be divided if you do not have a will.

Sometimes, relatives cannot be located or traced. In this case, assets of the estate that cannot be distributed are deposited with the county treasurer until claimed.

What taxes must be paid for Probate in Minnesota?

Federal law provides that an individual can transfer up to $3,500,000 to someone other than a spouse before incurring estate tax. If you are married, you can transfer any amount of property to a spouse during your lifetime or after your death without incurring federal estate tax. Individual tax law may vary, however, and you should review the tax laws of the states where you have property. For example, Minnesota tax maybe due on some estates over $1,000,000.

In Minnesota, opening an estate means filing a petition in a Minnesota Probate Court such that assets of the person who died can be distributed.  When a petition is filed to open an estate, the petition requests either an informal proceeding or a formal proceeding.

When an estate is opened, there are many pitfalls that can cause trouble.  For example, the process of opening an estate can differ depending on whether the person who died had a will, was married, had children, had creditors, or was insolvent.

When an estate is opened in Minnesota, a petition will request the designation of a “personal representative.”  Once formally designated, a  personal representative has the duty to administer assets of the estate.  Without opening an estate a personal representative cannot be assigned.  As a result, the most significant element of a petition asking a Minnesota Court to open an estate is the designation of a personal representative.

Also, opening an estate in Minnesota is a significant process when trying to distribute assets of a loved one because both creditors and “interested persons” can serve as a personal representative despite a Will stating otherwise.

Additionally, opening an estate is a public process.  Once opened, notice to creditors is required and the contents or value of a person’s estate becomes public knowledge.  Once an estate is opened, the remaining elements of the process include administering estate assets and closing an estate.  Between opening an estate and closing an estate, this process can take many consecutive months.

If you are considering opening an estate or need representation with this process, please consider contacting an estate lawyer for help and advisement.