Minnesota Probate Attorney

(Probate Issues 2 of 5) Isn’t the Probate Attorney The Lawyer For The Whole Family?

Bill — Wed, 01 Feb 2012 22:43:03 +0000

A Very Common Misconception

A common misconception that many Minnesota families have during a probate proceeding is to assume that the lawyer hired by the executor is there to represent all family members. This is not so.

The Executor Hires The Attorney For Just Themselves

The executor (also known as a personal representative) hires the attorney to represent him or her in the probate proceeding. The attorney’s job is to look out for the best interests of the executor.

The best interests of the executor are sometimes not the same as the best interests of the other heirs.

A Story To Illustrate The Way It Works

Let me tell you a story about a family in Eagan. A woman we will call “Joyce” was the executor of her mother’s estate. During Mom’s last year of life, she put Joyce’s name on her bank accounts. When Mom died, there was about $40,000 in the account. Joyce retained a lawyer who we will call “Attorney Smith” to help her with the probate.

Then a question came up: does the $40,000 belong only to Joyce, or is it to be split up four ways to all the children?

Joyce thinks it belongs just to her. Her brother George thinks it should be divided between all the children.

The Brother Talks To His Sister’s Attorney

George calls Attorney Smith for his advice. George thinks the lawyer is there to decide probate issues for the entire family. As Joyce’s lawyer, Attorney Smith takes her side and says the money belongs only to Joyce.

If George thinks Attorney Smith is there to represent the entire family, he may just assume that the attorney is giving him an impartial interpretation.

You can see where the confusion can begin.

While Attorney Smith is not allowed to lie to George, or do anything unethical, the lawyer’s primary loyalty is to Joyce. Joyce is his client and Attorney Smith is obliged to protect her within legal bounds.

It Is A Good Idea To Talk To Another Attorney

When a debatable question such as ownership of a bank account comes up, George would be well advised to contact his own probate attorney for advice on questions that may affect his interest as an heir.

The best practice for Attorney Smith is to advise George when he calls that the attorney represents Joyce and not the entire family. The attorney does not have a legal obligation to tell this to George. However, it is a good idea, so as to avoid misunderstandings later on.

Attorney Needs His Client’s Permission To Share Information

Another misunderstanding can arise if George calls Attorney Smith to get copies of documents or other records. George may become upset if the Attorney Smith refuses, or says that he must first get Joyce’s approval. Once again, it is important for the family to understand that the attorney is there to assist Joyce. He cannot provide help or information to the family members unless Joyce approves.

When all the family members understand the role of the attorney for the executor, it can help avoid bruised feelings and misunderstandings. When family members disagree on how the estate should be administered, the other family members should get their own attorney.

The contents of this article are for information only and are not to be interpreted as legal advice. For personal legal advice you should consult with an attorney who is experienced in probate law or estate planning.

(Probate Issues 1 of 5) Will the Probate Court Investigate Improper Actions of the Executor?

Bill — Wed, 01 Feb 2012 22:23:55 +0000

Will The Court Look Into It?

When the executor of the estate delays on administration or does things which some of the heirs think is wrong, can the heirs call or write the court to have the court look into it? As a general matter, under Minnesota Law the court usually will not intervene in most probate cases.

Probate Court Is Not An Investigative & Enforcement Arm

For the most part the Probate Court is not an investigative and enforcement arm of the government. In other words, when a loved one has died and there is a probate case under way, the other family members should be proactive and not hope that the probate court will automatically look out for their rights for them.

Think of the probate court as a tribunal that will decide the cases that are presented to the court. The judge will hear from the heirs or their attorneys when disputes arise. The judge will then issue his or her ruling and the probate will proceed.

There Are Some Exceptions

There are some exceptions to this general rule. For example, when there are heirs who are under 18 years of age or when there is one or more beneficiaries who are mentally or physically disabled, the court will often exercise more supervision.

Also particularly in formal probate proceedings, the court may order hearings when the executor is delinquent in providing reports to the court within the time limits.

Furthermore, when the deceased person or that person’s spouse has received public assistance during their lifetime, the probate court will often take a more assertive role.

Despite these exceptions, for the most part, the probate court will not provide supervision of the duties of the executor unless the family members bring the particular problems to the attention of the court.

In another part of this series, I talked about the fact that the attorney for the executor is not the lawyer for the family and the estate.

The Take-Away

The take-away that you should get from these articles is that it pays for the family to be proactive. Do not depend on the executor’s attorney nor the probate judge to be actively looking out for your best interests.

You should review the inventory, final accounting and other documents and insist that the executor does his or her duties properly and on time. I hope you trust the executor but you should still be vigilant. It brings to mind an old saying that I am fond of: “I trust my brother but I still cut the cards.” If you have questions or concerns about the probate or how it is being handled, it is often wise to consult with an experienced probate attorney.

My Stepfather Is Stealing My Inheritance!

Bill — Thu, 22 Dec 2011 20:54:24 +0000

A Tale Of A Minnesota Stepfamily

Here is a tale about a Minnesota stepfamily, which can happen all too often in reality. After Dad passed away, Mom lived by herself for a while and eventually met someone new. Six years ago, she remarried; this time to a man who was very different from her first husband. Her two adult children, Jeff and Jenny, did not get along with their new stepfather Seth, Mom’s second husband.

Mom Passes Away

After Mom was diagnosed with lung cancer, it seemed like Seth barely even tried to update Jeff and Jenny on Mom’s health status. Arguments ensued. When Mom passed away, Seth told the adult children after the funeral that he was getting all of Mom’s assets, including her house and savings.

Is Their Stepfather Stealing From Them?

Jeff and Jenny think that their stepfather Seth is stealing their share of the inheritance. Who is entitled to the inheritance under Minnesota law?

As a probate attorney, this is a commonly asked question.

The answer is: It depends.

If Mom had properly drafted a Will, she could have left her assets to Seth or her children or divided them between the two. If Mom had not properly drafted the Will, it may not be valid. A Will can be legally challenged in that situation.

Was There Joint Tenancy?

If Mom and her second husband had decided to keep their assets together in joint tenancy, then Seth may receive all of the assets. In the absence of a Will, the surviving spouse (Seth) can get his statutory share, which could be most or all of Mom’s assets. If the home was titled in Mom’s name, Seth might be entitled to live in the house for the rest of his life, after which the home could go to the children.

Stepfamily probate questions frequently become complex, because each case is different. The issues can become even more difficult to sort out when there are several marriages of the decedent (person who has passed away), and even more so if they have children from a previous marriage.

A History Of Stepfamily Quarrels

In the old fairy tale of “The Gold Bearded Man” a dying king’s wish is for his queen to honor him by taking care of their son. No sooner had the king passed away than the queen re-married a new man. This stepfather was very cruel to the son, who later becomes a king in his own right by demonstrating his kindness to others.

History is full of examples of fighting or bitterness between stepparents and stepchildren.

After a death in the family, clashes between stepparents and stepchildren can be especially heated. When that happens, it is a smart idea for them to consult with an experienced probate attorney. The manner of the estate distribution depends on the particular details of each situation. If the stepfamily members receive sound legal advice, this can often avoid unnecessary fights and illegal actions.

Bill Peterson is a Minnesota Probate Attorney with over 40 years of experience as a lawyer. His firm, Peterson Law Office, is pleased to help sort out the intricacies of Minnesota Probate. For more information, please visit http://www.mnprobate.com or call toll free at 1-888-910-5297.

Am I Running Out of Time in Probate?

Bill — Tue, 20 Dec 2011 21:51:52 +0000

Probate Can Seem Slow

Sometimes the procedures of probate seem to move slowly. Add to this the emotions of dealing with a Loved One’s affairs and it can be difficult to stay on top of the tasks required to complete the affairs. This can make it easy to forget that there are time deadlines in probate. If you miss these, you may lose your rights in Probate.

Minnesota Statute Of Limitations

Under Minnesota Law, a statute of limitations is the legal deadline in which court action needs to be taken in order to assert the legal rights of a person. The laws affecting estates of deceased persons and their families have a large number of time deadlines that must be followed. You must use the proper procedure within those times or you could lose your rights.

The first deadline is that the probate must begin within three years of the death of the family member. It is possible to start legal proceedings to get distribution of the assets after three years, but the processes are more complicated. As you might expect when things get more complex, they also become more expensive.

Written Notice Is Required

When one of the heirs files with the probate court asking to be appointed as executor or personal representative, a written notice is sent to the other heirs. The people who receive that notice then have 30 days in which they can file an objection to the person being named as personal representative. It is possible to later ask the court to remove that person as personal representative but getting that done afterward is more difficult.

If you are the spouse of the deceased person and you do not like the provisions of the will, you must file your objection within nine months of the death or within six months of the filing of the probate.

If the deceased loved one has a claim or potential lawsuit against someone else, the time for a representative on behalf of the decedent to take action on the debt may be running out. There are provisions of law to suspend the running of certain statutes of limitations. However, it is better to be safe with timely action.

An Inventory Must Be Prepared

Once the probate process has begun, the executor or personal representative has six months in which to prepare and provide an Inventory (or list of all the decedent’s assets) of the estate to the heirs and creditors.

When the personal representative asks the court to approve the estate accounting and/or distribution of inheritance, any beneficiary or creditor who does not agree with how these statements needs to file an objection with the court by the time of the hearing or they could lose their right to object. Objections commonly include disagreements with how the estate is being managed, how much is to be paid to beneficiaries, or relating to expenses.

If you have a debt owed to you by the decedent, you have four months in Minnesota after the probate proceeding is begun in which to file a claim. For example, if you had an agreement with the deceased loved one to provide care for that person for a certain amount per month and you have not been paid, you need to file a claim. If you do not file within the time allowed, you may lose your rights altogether. If the personal representative disputes your claim, he or she can disallow it by sending a written notice to the claimant two months after receiving the claim. The claimant has two months in which to file a challenge in court to the disallowance of his or her claim.

The Safe Thing Is To File On Time

The time limits I discuss in this video have a number of exceptions and possible extension to them. However, the safe thing, of course, is to always file within the time deadlines so you do not have to get an exception or extension.

As you can see, the Probate Code has many time deadlines in which rights must be asserted or those rights can be lost. If you have possible rights as a beneficiary or heir or creditor to an estate, you should consult with a probate attorney to be sure your rights are protected. Time may be running out before you know it.

The contents of this video are for information only and are not to be interpreted as legal advice. For personal legal advice you should consult with an attorney who is experienced in probate law or estate planning. The U.S. Treasury Department requires us to advise you that any written tax advice cannot be used and is not intended to be used by any taxpayer for the purpose of avoiding any penalties that may be imposed under the Internal Revenue Code. Written advice from our firm relating to any Federal Tax matters may not, without our express written consent, be used in promoting, marketing or recommending any entity, investment plan or arrangement to any taxpayer.

Will My Sister’s Loan From Dad Be Deducted From Her Inheritance?

Bill — Wed, 12 Oct 2011 16:35:34 +0000

Family Loans Come With A Price

When a child borrows money from a parent, especially a large amount, it is not uncommon for the other siblings to be jealous or at least curious about the family loan. However, if the loan goes unpaid before the death of the parent, this can certainly change the how the siblings feel about the money.

Sister Angie Has A Loan With Dad

Angie always had financial difficulties and had asked Dad to help bail her out. For a while, she ran up credit card bills and six years ago Dad gave her $20,000 to clear up her debts.

Later, Angie married “Mr. Wrong.” After a year she got a divorce and Dad gave her another $40,000 to get a new house and restart her life.

The four other brothers and sisters were not happy that Angie used Dad like an ATM for her financial needs. However, Dad obviously wanted to help her so the other children didn’t say anything to Dad.

Dad Passes Away

Two months ago Dad died. Angie showed up after the funeral and began asking to get more money because she wanted to buy a new car.

That started a huge argument among the siblings.

Among other things one brother said the $60,000 she had gotten from Dad should be deducted from her share of the inheritance. Sister Marjorie who was appointed personal representative of Dad’s estate was unsure how to proceed.

Minnesota Probate Law

Under probate law in Minnesota, it is possible for the personal representative to exercise the “Right of Retainer.” What this means is that if the money Angie got was a loan or an advance payment of her inheritance, the amount could be deducted from the share Angie would get in the probate proceeding.

It is always best if Dad had wanted the money to be considered a loan or advancement that he should have gotten a promissory note from Angie or that Dad would change his Will to mention that any amount that had not been repaid during his lifetime would reduce her inheritance.

That, however, is perhaps what perfect families do in a perfect world.

An Unspoken Understanding For The Loan

It is more common that Dad or Angie or the rest of the family has an “unspoken understanding” that it was a loan and Angie should pay it back to Dad or to Dad’s Estate after he dies.

However, family members can have a different perception of it after Dad’s death.

The issue of whether Dad intended it as a loan or a gift can be decided in litigation before the probate court when it comes time to distribute the assets of the estate.

If Angie claims the $60,000 was a gift, under Minnesota law, she would have to prove by “clear and convincing” evidence that Dad intended to give it to her with no strings attached. A better way is for the family to get clarification of how the $60,000 should be treated at the time the money is paid or by Dad spelling it out in his estate plan.

Whether it comes down to spelling it out in Dad’s estate plans or sorting it out in probate litigation, the family will need a probate and estate planning attorney.

The Need For An Estate Plan

It probably will not surprise anyone that it is much less expensive for the family to spell it out in the estate plan rather than through litigation about what was the intention of the decedent.

Can I Get Child Support in Probate Court?

Bill — Mon, 10 Oct 2011 16:11:02 +0000

Obligations For Child Support

All too often when a parent dies who has minor children, the custodial parent loses out on child support. This is unfortunate but it can be handled in the probate proceeding. However, time is of the essence. The parent who takes care of the child or children should be vigilant to be sure that child support is paid even though the obligated parent is deceased.

Minnesota Law On Child Support

First of all, under Minnesota Law the child is entitled to maintenance paid from the probate estate for at least 18 months after the parent’s death.

Secondly, if there is child support which is past due, the custodial parent on behalf of the child may wish to make a claim on the estate for the unpaid child support.

Divorce Decree

Furthermore, the divorce decree may contain contract obligations that the deceased parent’s estate may owe to the child or to the former spouse. This could include property settlements or support obligations that the decedent had agreed to or was ordered to perform as part of the divorce process.

The surviving parent should carefully examine the divorce decree for terms and conditions that may be enforced in the probate proceedings. Possibly even more significant is that point that the child may be entitled to a significant part of the estate of the deceased parent.

There Are Deadlines For Receiving Support

However, the child and his or her custodial parent should not wait around expecting the probate court to search out the child and give the child an inheritance or financial support rights under the Probate Code. Indeed I have seen situations where greedy or vengeful inlaws will ignore or even deny the existence of a child so that they can claim the deceased parent’s estate.

When a parent dies with a minor child who was not living with the deceased, that child’s other parent should contact a probate attorney immediately to protect the child’s rights to support and his or her inheritance.

What Happens When The Personal Representative Dies?

Bill — Mon, 10 Oct 2011 15:53:33 +0000

The Importance Of The Personal Representative

The Personal Representative (also known as the Executor) is responsible for many of the activities in the Minnesota probate process, including collecting the assets, organizing the estate, distributing assets, and communicating with the probate court. While the family and friends are dealing with the loss of a loved one, this person is managing the decedent’s estate. What happens, then, when the Personal Representative dies?

The Death Of The Personal Representative

The death of the personal representative happens more often than many people realize. I have had that happen several times in recent years with some of the probate cases I have handled with my own clients. While each time has been a different situation, there are established ways of taking care of the matter.

Under Minnesota Law, the original probate process must still be completed according to the Probate Code. This means that a substitute Personal Representative must now be selected, to take the place of the one who passed away. There are several ways to go about selection of a new Personal Representative, but it must be done with the approval of the probate court.

Steps To Take When It Happens

First of all, it is helpful to review the Will if there is one. Often the deceased person will name alternative choices to serve as executor in case the first choice is unable to serve. As a side note, naming alternatives is a sound practice in estate planning.

If there is no Will or if it does not nominate a new personal representative, then it is a good idea to ask the heirs or the beneficiaries who they would like to see as the new personal representative. They may not all agree but this can help to avoid needless (and expensive) conflicts in probate. A discussion among the beneficiaries tends to be a good idea, so that everyone involved is aware of the change that needs to be made.

Of course, it is a good idea to nominate a individual who is knowledgeable in financial matters and who is acquainted with the family, and financial affairs of the deceased person.

Selecting A New Personal Representative

It is also important to be sure that any candidate to become personal representative does not have skeletons in their closet, such as personal financial problems, or criminal convictions, or personality conflicts with the other heirs.

If no executor has yet been appointed by the probate court, the petition to the court and the supporting documents can be redrafted to nominate the new candidate.

If the probate proceeding has already begun, then it will be necessary to file a Petition to name a Successor Personal Representative.

If the probate court had required that the deceased executor post a bond in the probate, it may be necessary to discharge that bond and get a new one for the successor personal representative.

When a personal representative has died in addition to the Loved One, this can create an enormous emotional crisis for the family. At this time, more than ever, it is important that an experienced probate lawyer is there to sensitively guide the family through this doubly difficult time.

Co-Executor On A Probate Split Decision

Bill — Mon, 19 Sep 2011 18:55:39 +0000

A Disagreement Over The Estate

In some instances, there can be co-executors on a Minnesota probate (another name for executor is personal representative). This is not uncommon. However, it can also pose a very serious dilemma. What happens when the co-executors disagree on how to handle the estate?

A Tale Of Two Cousins

Let’s look at an example with two cousins, Betty and Kim. Betty lives in Chanhassan, not too far from her uncle Jerry. Jerry was a brother to Betty’s dad and she remained close to her uncle through the years.

Over the past winter, Uncle Jerry struggled with heart disease and eventually passed away in February. Betty was saddened by this event, but took comfort in his passing as Uncle Jerry was in great pain.

Prior to his passing, Uncle Jerry had told Betty that she was going to be a Co-Executor for his estate, along with his only daughter Kim. When they were younger, Betty was like an older sister to her cousin Kim. As they entered adulthood, however, Kim had moved to Nevada and they had grown apart.

Reunited To Handle The Estate

Now with Uncle Jerry’s passing, Betty and Kim are reunited under less-than-perfect circumstances. Jerry had set aside most of his assets (pickup truck and house) to Kim, with a single 10 oz. gold bar going to Betty. Additionally, there are about $10,000 worth of bills that have accumulated, which Betty has collected.

Betty just discovered Kim has placed the pickup truck and house up for sale. With her name also listed as Co-Executor, Betty is concerned that Kim is not addressing the outstanding bills the estate owes. What can she do?

According to Minnesota law, when there are co-executors or co-personal representatives on an estate, it takes both signatures in order to sell or transfer ownership of any asset. Thus Betty has the ability to say no on any sale if she doesn’t think that a particular sale is a good idea.

The bank account that receives the proceeds from the sale of assets should be put into an estate account at a bank that both executors have access to.

Good To Be Cautious

Betty is wise to be cautious in what she does as a co-executor. Betty is serving as an officer of the probate court and she has legal obligations to the creditors, the heirs and to the court. A personal representative can be personally liable if he or she violates any of the duties to others.

Betty is well advised to be careful. If she encounters problems, she should consult with a probate attorney to be sure she is doing everything correctly. Incidentally, the legal fees Betty incurs to get advice are normally payable from the assets of the estate.

The contents of this article are for information only and is not to be interpreted as legal advice. For personal legal advice you should consult with an attorney who is experienced in probate law or estate planning. The U.S. Treasury Department requires us to advise you that any written tax advice cannot be used and is not intended to be used by any taxpayer for the purpose of avoiding any penalties that may be imposed under the Internal Revenue Code. Written advice from our firm relating to any Federal Tax matters may not, without our express written consent, be used in promoting, marketing or recommending any entity, investment plan or arrangement to any taxpayer.

I Need My Inheritance Now

Bill — Tue, 23 Aug 2011 18:22:36 +0000

An Upcoming Inheritance

Your Dad died last month. You know that you are in line to get a sizable inheritance. While you are saddened by his death, the inheritance couldn’t come at a better time because you are behind on your mortgage and need money to catch up before it goes into foreclosure. You talk to the personal representative (also known as the executor) and he tells you that it will be at least six months before all his accounts, bills and other obligations are sorted out and his estate is distributed.

What Can You Do?

You are anguished. Is there anything that can be done legally to get access now to that inheritance that you need so desperately?

Can You Legally Receive Your Money Faster?

Under Minnesota law, there are at least four ways you can get at least part of your inheritance or estate assets before the estate is wrapped up sometime in the future.

First of all, there is the family allowance. If you were financially dependent on your Dad for your livelihood or if your Mother is alive, there may be available up to $1500 per month for living expenses.

Secondly, if it appears that the estate will have sufficient resources to pay all of your Dad’s financial obligations, the personal representative can decide to distribute a cash advance to the heirs of the estate. This is rare, however. A personal representative is often reluctant to dole out advances because unknown bills or future fluctuations in asset value can sometimes turn an ample estate into one with limited assets. And no personal representative wants to go back to heirs and ask them to refund advances on inheritances that the personal representative had previously given out!

A third way to get funds from the estate is by making a claim on the estate. This can happen if you had loaned some money or if you did some work or gave your Dad some items of personal property. In this case, you may be able to make a claim on his estate that the personal representative may have to pay. Claims by family members against a parent’s estate are sometimes viewed with suspicion by personal representatives or the probate court but it is one more way that you may be able to get some cash from the estate before the estate is finally wrapped up.

A fourth way to get cash is to get a loan, usually from an inheritance funding company, and assign the company part or all of your inheritance. Of course the company wants to know that your inheritance is virtually certain and that there will be sufficient funds to pay the assigned inheritance when the estate is finally settled. Another disadvantage is that these companies usually charge significant fees for this service. When an heir needs funds immediately or an estate is not going to be closed soon, the heir can often get access to his or her inheritance although it may be at a high price.

Options In Minnesota

These are four options to get access to an inheritance before final distribution of the estate. Since a good deal of money and sometimes financial risk is involved for the heir before he or she can get access to a share of the estate, it is always wise to consult with an experienced probate attorney before selecting any of these options.

Safeguard The Estate Assets Promptly After Death

Bill — Mon, 14 Mar 2011 21:43:46 +0000

Take Immediate Steps To Protect The Estate

Sadly the death of a person seems to attract predators.

Remember the dream in Charles Dickens’ Christmas Carol when Ebenezer has died and his maid is stealing his bed linens? Unfortunately things like that can occur in real life.

Some Ugly Facts

Some burglars read the obituaries and break into the decedent’s home during the funeral. Sometimes neighbors or relatives help themselves to household items shortly after the death or even when the person is in his or her final illness. Sometimes a family member who has a power of attorney will deplete the decedent’s bank account shortly before or even after the death.

The First Ten Days

In our experience, the Loved One’s family is most vulnerable to these thefts in the ten days after the death while everyone is still in shock and denial. This is why it is so important for the family to take preventive action to secure the decedent’s estate.

Arrangements should be made for a home-watcher at least during the funeral. Banks and creditors should be notified of the death. Often it’s a good idea to change the locks at the home since often many people may have had access to the home while the decedent lived there.

An inventory should be taken soon after the death to avoid disappearance of items. (If not in writing, even a videotape of the interior of the home can document what things were there at the time of death.)

Occasionally some family members may consider these precautionary measures to be insensitive. However, later when the missing items or other assets cannot be accounted for, the family will wish that it took preventative steps at the time of the death of the loved one.

The contents of this video are for information only and is not to be interpreted as legal advice. For personal legal advice you should consult with an attorney who is experienced in probate law or estate planning.