Minneapolis Estate Planning and Probate Lawyer Blog
Sunday, November 08, 2015
Common Question: Do I Transfer My House to My Child?
Minneapolis Estate Planning and Probate Lawyer Cautions Against Transferring Your Home to Kids
Most people are aware that probate should be avoided if at all possible. It is an expensive, time-consuming process that exposes your family’s private matters to the public and allows for easy challenges by others. It sounds simple enough to just give your property to your children while you are still alive. Then it's not subject to probate upon your death.
This strategy may offer some potential benefits, but those benefits are far outweighed by the risks. And with other probate-avoidance tools available, such as living trusts, it makes sense to review the risks and benefits of transferring title to your property with a qualified estate planning attorney.
- Property titled in the names of your heirs, or with your heirs as joint tenants, is not subject to probate upon your death.
- If you do not need nursing home care for the first 60 months after the transfer, but later do need such care, the property in question will not be considered for Medicaid (Medical Assistance in Minnesota) eligibility purposes.
- If you are named on the property’s title at the time of your death, creditors cannot make a claim against the property to satisfy the debt.
- Your heirs may agree to pay a portion, or all, of the property’s expenses, including taxes, insurance and maintenance.
- It may jeopardize your ability to obtain nursing home care. If you need such care within 60 months of transferring the property, you can be penalized for the gift and may not be eligible for Medical Assistance for a period of months or years, or will have to find another source to cover the expenses.
- You lose sole control over your property. Once you are no longer the legal owner, you must get approval from your children in order to sell or refinance the property.
- If your child files for bankruptcy, or gets divorced, your child’s creditors or former spouse can obtain a legal ownership interest in the property.
- If you outlive your child, the property may be transferred to your child’s heirs.
- Potential negative tax consequences: If property is transferred to your child and is later sold, capital gains tax may be due, as your child will not be able to take advantage of the IRS’s primary residence exclusion. You may also lose property tax exemptions. Finally, when the child ultimately sells the property, he or she may pay a higher capital gains tax than if the property was inherited, since inherited property enjoys a stepped-up tax basis as of the date of death.
Transferring ownership of your property to your children while you are still alive may be appropriate for your situation. However, it comes with significant risks. I generally don't recommend this strategy. If your goal is to avoid probate, maximize tax benefits and provide for the seamless transfer of your property upon your death, a living trust is likely a far better option.
Contact the firm now so we can discuss your options
Sunday, November 01, 2015
Help Your Parents Plan Now
Minnesota Estate Planning Attorney Urges You to Help Your Parents Put a Plan in Place
I live the practice of estate planning because I enjoy helping people. All people. I specialize in the “overlooked” because, well, these individuals and families are overlooked by society and need a fierce advocate on their side. Another specialty area that I have incorporated into my practice is that of elderly care and protection. All too often in America the elderly are left to their own devices as they battle illness and/or dementia. In Minnesota, the majority of seniors who need care receive it from a family member. The family needs help knowing what to do for their loved one. This is where I come in…
Currently, close to 5.3 million Americans suffer from Alzheimer’s. In the earliest stages of this illness it is difficult to impose upon your parent(s) the type of measures that will protect them wholly from financial scams or to remove their financial decision-making privileges. The desire to preserve your parent’s dignity and self-respect may make you decide to “stand down” in the beginning. They are your parents, after all. You don't want to take their cards or checkbooks away as though they were children. This desire to be kind and respectful can unfortunately have serious repercussions to their finances. In these earliest of stages there is a middle-ground, legally-speaking, that you can work with so that your parents still have autonomy but you can rest easy knowing that should something happen you will be informed in time to mitigate the damage.
My firm can work with you to provide your family with financial safeguards. Elderly care, especially when it comes to financial management, is a very important part of my practice area. I routinely work with families to create a Power of Attorney so that children can assume care of their elderly parent, or even to provide this decision making tool to a spouse, sibling or adult child who is better able to handle the financial obligations.
Call me today if you are at that point where you need to begin to help make decisions for a parent, or if you are beginning to see a need to plan ahead for your own financial future. I can walk you through all of the options available to you to protect you or your loved one’s finances in the days ahead.
Tuesday, October 06, 2015
6 Events Which May Require You to Revise Your Estate Plan
Creating an Estate Plan is not a one-time event. You should review your will periodically, to ensure it is up to date, and make necessary changes if your personal situation, or that of your executor or beneficiaries, changed. As the weather cools and we head toward the end of 2015, it's a great time to reflect back on the changes in your life. Keep in mind that there are a number of life-changing events that require your Will, and other estate planning documents, to be revised.
Read more . . .
Monday, August 24, 2015
13 Costly Misconceptions About Planning for Your Senior Years
A Minneapolis Estate Planning Lawyer Dispels 13 Myths About Planning for Your Twilight Years
Misconception #1: Most seniors move into nursing homes as a result of minor physical ailments that make it hard for them to get around. Wrong! A large number of admissions to nursing homes are actually due to serious health, behavior, and safety issues caused by Alzheimer’s disease and dementia.
Read more . . .
Monday, August 10, 2015
My Business is Small. Do I Need a Succession Plan?
A Minneapolis Estate Planning Attorney Explains the Value of Drafting a Business Succession Plan for Small Business Owners
Business succession planning is a practice or set of estate planning practices used by business owners to ensure that a small business can run successfully in the event of their death or in the unfortunate circumstance where they are unable to manage or operate the business. I receive a lot of inquiries on this topic. People want to know if they need a business succession plan or if they are somehow covered by wills and living trusts. I usually walk people through a basic set of questions such as:Read more . . .
Sunday, July 26, 2015
I Just Moved to Minnesota. Do I Need a New Will?
A Minneapolis Estate Planning Attorney Discusses How Moving to Minnesota Affects Your Estate Plan
Minnesota’s economy is booming with one of the lowest unemployment rates in the country and this means that people are moving here to take advantage of our great standard of living. As a result, I often receive calls from people asking if they need to update their estate plans due to the move.
In general, wills or living trusts that are valid in one state should be valid in all states. However, if you’ve recently moved to Minnesota, it’s highly recommended that you consult a Minnesota estate planning attorney. This is because states can have very different laws regarding all aspects of estate planning. For example, some allow you to use a handwritten will, but Minnesota does not.
And, as a practical matter, you want to ensure that the proper people are able to get their hands on your legal documents. This may prove difficult if they are all still located in another state.
Another event that can cause problems with moving and estate planning is moving from a community property state to a common law state, such as Minnesota. In community property states, all property earned or acquired during marriage is generally owned in equal halves by each spouse, with some exceptions, such as any property received by only one of them through gift or inheritance. The property that is considered community property includes income, anything acquired with income during the marriage, and any separate property that is transformed into community property. Separate property includes anything owned by either spouse before marriage, property received by only one spouse by gift or inheritance, and any property earned by one spouse after permanent separation. One spouse is not required in community property states to leave his or her half of the community property to another spouse, although many do.
In common law states, property acquired during a marriage is not automatically owned by both spouses. In common law states, the spouse who earns money and acquires property owns it by himself or herself, unless he or she chooses to share it with his or her spouse. Common law states usually have rules to protect a surviving spouse from being disinherited.
You will also want to make sure that your Health Care Directive and Power of Attorney are valid in Minnesota. Minnesota law is very specific about the form of your Power of Attorney so you should have this redone to match. Otherwise, you risk having a bank, or other institution, reject it.
As you can see, the laws of different states vary significantly with respect to incapacity planning, estate planning and inheritance rights. Therefore, it’s important to contact an estate planning attorney in your new area, especially if you are moving from a community property state to a common law state.
New to Minnesota? Contact an experienced estate planning attorney now!
Monday, June 22, 2015
Is There a Way to Disinherit a Child?
A Minnesota Estate Planning Attorney Explains Possible Ways to Disinherit a Child From Your Estate
I have had numerous clients ask about disinheriting a child from their estate. There are many reasons why you may want to disinherit a child, but you need to take careful steps to ensure your wishes are honored.
If your estate plan and related documents are properly and carefully drafted, it is highly unlikely that the court will disregard your wishes and award the excluded child an inheritance. As unlikely as it may be, there are certain situations where this child could end up receiving an inheritance depending upon a variety of factors.
To understand how a disinherited child could benefit, you must understand how assets pass after death. How a particular asset passes at death depends upon the type of asset and how it is titled. For example, a jointly titled asset will pass to the surviving joint owner regardless of what a will or a trust says. So, in the unlikely event that the disinherited child is a joint owner, that child will still inherit the asset because of how it's titled.
Similarly, if the child you want to disinherit is listed as a named beneficiary on a life insurance policy or retirement plan asset, such as an IRA or 401k, that child will still receive those benefits as the named beneficiary even if your will specifically left that child out. Another way such a "disinherited" child might receive a benefit is if all other named beneficiaries died before you.
So, assume you have three children and you wish to disinherit one of them. You draft the will to state that all of your assets should go to the other two, and if they are not alive, then to their descendants. If those other two children die before you and do not have any descendants, there may be a provision that in such a case your "heirs at law" are to take your entire estate and that would include the child you intended to disinherit. In order to disinherit a child, your estate plan must be carefully drafted to ensure he/she is left out of each part of the plan.
If you wish to disinherit a child, or anyone else, all of these issues can be addressed with proper and careful drafting by a qualified estate planning lawyer. You have the right to determine who is entitled to your assets after your death.
Contact an experienced and knowledgeable Minnesota estate planning attorney now to act on your wishes.
Monday, June 08, 2015
A Minneapolis Estate Planning Attorney Explains Why You Should Add Your Spouse to the Deed to Your House
A Minneapolis Estate Planning Attorney Explains the Pros of Adding Your Spouse to the Deed to Your House
Many people erroneously assume that when one spouse dies, the other spouse receives all of the remaining assets; this is often not true and frequently results in unintentional disinheritance of the surviving spouse.
In cases where a couple shares a home but only one spouse’s name is on it, the home will not automatically pass to the surviving pass, if his or her name is not on the title. Take, for example, a case of a husband and wife where the husband purchased a home prior to his marriage, and consequently only his name is on the title (although both parties resided there, and shared expenses, during the marriage). Should the husband pass away before his wife, the home will not automatically pass to her by “right of survivorship”. Instead, it will become part of his probate estate.
This means that there will need to be a court probate case opened and a personal representative (executor) appointed. If the husband had a will, this would be the person he nominated in his will to carry out his instructions regarding disposition of the assets. If he did not have a will, Minnesota probate law states who has priority to serve as personal representative AND inherit the assets.
Take our above example; if the husband died without a will, Minnesota probate law determines who is entitled to the home. Under Minnesota law, if the husband in our example had children, even if they are the children from the current marriage, the surviving spouse is only entitled to a life estate in the home. The “remainder interest” goes to the kids. If this is a second marriage, children from the prior marriage may be entitled to more of the estate. A life estate with a remainder interest means the surviving spouse has strict limitations on what she can do with the home. For instance, she can’t sell the home.
I am currently handling several probate matters where the surviving spouse was not on the house deed.
Laws of inheritance are complex, and without proper planning, surviving loved ones may be subjected to unintended expense, delays and legal hardships. If you share a residence with a significant other or spouse, you should consult with an attorney to determine the best course of action after taking into account your unique personal situation and goals. There may be simple ways to ensure your wishes are carried out and avoid having to probate your spouse’s estate at death.
Contact a Minnesota Estate Planning Lawyer today to assist with adding your spouse to the deed to your home.
Monday, June 01, 2015
What [Not] To Do After a Death: Seven things personal representatives should never do
A Minnesota Probate Lawyer Cautions Against Certain Actions When You Act as a Personal Representative (Executor)
1. NEVER distribute estate assets until there has been a full assessment of potential claims against the estate.
Minnesota statutes require that probates remain open for at least four months. This gives creditors adequate time to notify the personal representative of potential claims. Distributing assets before the expiration of this four-month creditors’ claims period opens the personal representative to liability if there is not enough money to pay the claims.
2. NEVER use the estate’s funds for personal expenses.
The personal representative has a duty to act in the best interests of the estate. “Borrowing” the estate’s funds or misappropriating the funds is the same as stealing someone else’s money. It’s better to start clean and immediately open an estate bank account and run all the estate money through it.
3. NEVER neglect tax issues.
Ordinarily it is the responsibility of the personal representative to file the estate’s tax returns. Failure to do so could cause penalties and expose the personal representative to liability.
4. NEVER ignore a court order.
As a condition to being appointed, the personal representative agrees to submit to the jurisdiction of the court. This means obeying court orders and local rules and following Minnesota probate statutes. Disobeying the court could result in personal liability against the personal representative, or worse, the court ordering the personal representative to appear before it to explain why you disobeyed the court. It is within the court’s power order jail time or a fine for a personal representative who disobeys a court order.
5. NEVER distribute the last of the funds in the estate until a full final accounting has been done and all debts paid. I handled a probate where the only asset was the decedent’s home. The home was sold and a check issued to each beneficiary for the full amount of the sale price. At the end of the probate, the personal representative did not have enough cash on had to reimburse himself the full amount of legal fees paid to handle the probate.
It’s much more difficult (almost impossible) to get money back from someone once it’s been paid out. Far easier,
6. NEVER ignore a claim.
Minnesota probate law requires creditors to submit a claim against the estate in order to get paid. The creditors will notify the personal representative of potential claims. The personal representative should carefully review each claim. If he/she doesn’t think it’s legitimate (or owed) the PR MUST notify the creditor of the disallowance of the claim within 2 months of receipt of the claim.
I had a client who ignored a claim (despite my repeated warnings) and the two months passed without him filing a notice of disallowance. He then asked if he could dispute the claim. Unfortunately, it was too late to dispute the claim even though he had a good case for disallowance. He was then forced to work with the creditor to settle the claim.
I know it’s a difficult time working through a probate after the death of a loved one, but please don’t simply ignore issues. It’s my job to help you tackle these problems, so work with me.
7. NEVER proceed without counsel.
Minnesota’s probate laws are complex even for seasoned attorneys. Making mistakes can be costly to the estate and can even cause the personal representative to become personally liable for the mistakes. Even before a probate proceeding is commenced, there are many issues that need to be dealt with, including how to handle creditor claims, deciding on the right place to open the probate, choosing the appropriate type of probate proceeding, and interpreting the decedent’s Will correctly in light of Minnesota probate law.
Because of the risks involved, probate is not the kind of legal proceeding that should be done “on the cheap.” I have met with numerous personal representatives who originally thought they could handle it on their own then hit a wall and had to seek immediate help to fix something. You should work with an experienced Minnesota probate lawyer to ensure you don’t make a costly mistake.
Hire a knowledgeable and experienced Minnesota probate attorney before you start a probate to be sure it’s handled properly from the very beginning.
Download a copy of this document: Five Things Personal Representatives Should Never Do.
Monday, May 25, 2015
What’s Involved in Serving as a Personal Representative in a Minnesota Probate?
A Minneapolis Probate Lawyer Explains Some of the Tasks Associated With Acting as a Personal Representative for an Estate
The personal representative is the person designated in a Will as the individual who is responsible for performing a number of tasks necessary to wind down the decedent’s affairs. [While a will merely nominates someone to act as personal representative subject to approval by the court, this post uses the term “personal representative” to refer both to the nominated and appointed personal representative.] Generally, the personal representative’s responsibilities involve taking charge of the deceased person’s assets, notifying beneficiaries and creditors, paying the estate’s debts and distributing the property to the beneficiaries. The personal representative may also be a beneficiary of the Will, though he or she must treat all beneficiaries fairly and in accordance with the provisions of the Will.
The first priority for a personal representative is to find out if the deceased had a valid Will. Then the personal representative should locate the original Will. The personal representative should also be sure to order certified copies of the Death Certificate if that hasn’t already been done. The personal representative will be responsible for notifying all persons who have an interest in the estate, including those who are named as beneficiaries in the Will and any known creditors. A list of all assets must be compiled, including value at the date of death.
The personal representative must take steps to secure all assets, whether by taking possession of them, or by obtaining adequate insurance. Assets of the estate include all real and personal property owned by the decedent; overlooked assets sometimes include stocks, bonds, pension funds, bank accounts, safety deposit boxes, annuity payments, holiday pay, and work-related life insurance or survivor benefits. The personal representative must also compile a list of the decedent’s debts, including, credit card accounts, loan payments, mortgages, home utilities, tax arrears, alimony and outstanding leases.
Whether the Will must be probated depends on a variety of factors, including size of the estate and how the decedent’s assets were titled. An experienced probate or estate planning attorney can help determine whether probate is required, and assist with carrying out the personal representative’s duties. If the estate must go through probate, the personal representative must file the appropriate documents with the probate court in order to be appointed legal representative. Upon approval of the appointment, the court will issue a document called Letters Testamentary authorizing the personal representative to act on behalf of the estate to pay all of the decedent’s outstanding debts, provided there are sufficient assets in the estate. After debts have been paid, the personal representative must distribute the remaining real and personal property to the beneficiaries, in accordance with the wishes set forth in the Will. Because the personal representative is accountable to the beneficiaries of the estate, it is extremely important to keep complete, accurate records of all expenditures, correspondence, asset distribution, and filings with the court and government agencies.
The personal representative is also responsible for filing all tax returns for the deceased person including federal and state income tax returns and estate tax filings, if applicable. Please note that Minnesota law entitles a personal representative to reasonable compensation for his or her services. Unfortunately, there is no guidance offered on the appropriate amount of this fee so it’s a good idea to discuss compensation with other family members to avoid later disputes. I find it helpful to spell out the compensation in the will so that others know and understand that the deceased intended to offer payment to the personal representative.
Monday, May 18, 2015
Expenses of the Estate, Part IV: Fees Received as Personal Representative (Executor) are Taxable!
A Minnesota Probate Attorney Explains That Fees Received for Acting as a Personal Representative (Executor) Are Taxable
Serving as a personal representative takes a lot of time. As a result, some personal representatives consider charging the estate for their time as permitted under Minnesota law.
As appealing as that can be, the attorney should help the personal representative consider all the consequences of that decision. One consequence that is often overlooked is that fees paid to the personal representative are taxable and must be included in their gross income. As a result, the estate may be required to generate a 1099.
Contact a Minnesota Probate Lawyer to discuss your rights and obligations as executor.
From within Hennepin County Unique Estate Law represents clients throughout Minnesota, including Minneapolis, Edina, Bloomington, St. Louis Park, Minnetonka, Plymouth, Wayzata, Maple Grove, St. Paul, and Brooklyn Park.