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Minneapolis Estate Planning and Probate Lawyer Blog

Thursday, November 4, 2010

Notice to Persons of Interest

As discussed in prior posts, your estate may be distributed in a court proceeding known as probate. Under Minnesota law the personal representative must send notice of the probate proceeding “interested persons.”

Who is an interested person?

?In Minnesota, interested persons are defined as “heirs, devisees, children, spouses, creditors, beneficiaries and any others having a property right in or claim against the estate of a decedent” and  “persons having priority for appointment as personal representative.”  So, only those entitled to receive anything from the estate, either as a beneficiary or a creditor, or have priority to be appointed as a personal representative, then you are entitled to notice of probate.

Who is missing from that list? Anyone not related to you by blood or marriage unless named, either as a beneficiary or personal representative, in your will. If you don’t have a will, your partner will not receive notice of the probate and may miss the opportunity to make a claim for the right to receive your property.  Don’t make this process more complicated and costly for your loved ones.  Be sure they are protected – get a will now!


Thursday, November 4, 2010

Minnesota Court: Surrogate Legal Mother But Father Gets Custody

The Minnesota Court of Appeals recently ruled that a woman who entered a surrogacy agreement with two gay men is the legal and biological mother of the child.  But the Court granted sole legal and physical custody to the father whose sperm was used for the pregnancy.

In ruling that the surrogate is the child’s mother, the court relied on the language in Minnesota’s Parentage Act, which states that the parent child relationship “may be established by proof of her having given birth to the child.” While the Act does not allow an egg donor to be deemed the biological or legal parent of the child, it defines egg donor as “[a] type of assisted-reproductive therapy in which eggs are removed from one woman and transplanted into the uterus of another woman who carries and delivers the child.” Because it was undisputed that the surrogate’s egg was fertilized and that she carried the baby and gave birth to her, the surrogate was held to be the biological and legal mother of the child.

But the court also held that the father’s male partner was not the child’s father stating:

“While [the partner] is and will continue to be an important person in the child’s life, he is not a legal or biological parent of [the child] under Minnesota law and is not entitled to custody of the child on the facts of this case.”

The surrogate also attempted to argue that the surrogacy agreement was invalid under Minnesota law. The law is unclear on the status of these agreements because our courts have never ruled on whether or not surrogacy contracts should be honored. The court here did nothing to clarify any confusion surrounding the use of surrogacy agreements as it refused to address the issue.  So, unlike in other states where surrogacy contracts have been deemed valid or void as against public policy, Minnesota continues to fail to provide any direction on the use of these agreements.

So was this a good decision?

That’s difficult to answer. While I am pleased that the court didn’t hesitate to grant sole legal and physical custody of the child to her gay father, it wasn’t a fair fight as the surrogate was clearly unfit to have custody. The surrogate’s own expert witness stated that she was a “mistrustful, immature, narcisstic, and self-indulgent individual”  leading the trial court judge to call into question the surrogate’s “capacity and ability to provide positive guidance” to the child.  Further, it would be “detrimental to the child if [the surrogate] had sole authority over [the child's] upbringing.”

How do the men feel about the decision? Should their attorney appeal the decision? The father who was granted sole physical and legal custody may be satisfied with the decision and decide against rolling the dice with our conservative Supreme Court.  But, his partner can’t be as happy with the outcome as he has no legal relationship to the child.  If anything happens to the father, his partner has no current legal right even to visitation with the child.

It’s difficult to determine whether this decision is a victory.  What’s not difficult to see is that it did nothing to provide direction for the future use of surrogacy contracts. If you plan to use a surrogate, please contact an attorney to be sure of your rights.


Monday, November 1, 2010

Creating a Valid Will in Minnesota: Four Simple Steps

So, you have diligently read my blog and my prior posts explaining the consequences of dying without a will in Minnesota have convinced you to get a will.  Now what?

What are the requirements for a valid will in Minnesota?

The following are the legal requirements for creating a valid will.

  1. You must be at least 18 years old;
  2. You must be of  “sound mind.” This generally means that that you know you are making a will and are familiar with your property and your heirs;
  3. Your will must be in writing, signed by the you and two witnesses.  If you cannot physically sign your name then you may direct another party, who is not a witness, to do so; and
  4. Execute a “Self-Proving Affidavit.” Ok, this is not actually a legal requirement but as a nontraditional family, it is crucial to withstand any challenges to the validity your will. This document must be signed by you, two witnesses and a notary all at the same time (this generally means that you must have 3 other people present at signing). Minnesota law states that the probate court will automatically accept as authentic any will with a properly executed Self-Proving Affidavit.  This can be especially important for nontraditional families who may have legal heirs who, unhappy with the distribution of your property, attempt to challenge the validity of the will. The Affidavit protects your witnesses by allowing them to avoid having to appear in court to testify that your will was validly signed.

Please note that each witness must sign the will in the your presence. It is also a good idea to use witnesses that are  “disinterested”, which means that they are not a beneficiary of your will.  However, the signing of a will by an interested witness does not invalidate your will or any of its provisions. You should still try to avoid having your partner-beneficiary sign as a witness to your will.

Now you know that as a member of a nontraditional family, you must have a will.  And you know that it is not difficult to create a valid will in Minnesota.  So, take control and protect your loved ones – get a will now!

Creative Commons License photo credit: Andy on Flickr


Wednesday, October 27, 2010

What If You Die Without a Will?

My prior posts have explained the probate process and why you need a will. This post will address what may happen if you don’t have a will.  If you do not have a will, your possessions will be distributed by the court, in a probate proceeding, according to the Minnesota law governing intestate succession.

Under current Minnesota law, if you die without a will, your property will go to your closest relatives.  For those in “traditional” relationships (legally married with no prior children), their entire estate will go to their spouse.  But, if you have a blended family – children that are not also your spouse’s – your property will be divided between your spouse and those “other” children.  If you do not have a spouse or children, then your stuff will be distributed in the following order: grandchildren; parents; siblings; and then to distant relatives.

What does all this mean for a nontraditional family?

Let’s look at a hypothetical.

You and your unmarried partner have lived together for 5 years in a home that is in your name alone.  Your parents died a few years ago and have one brother with whom you haven’t spoken in 10  years. Your partner gives birth to a son (your first) but you die before the completion of the second parent adoption process. You have no will.??

Here is how intestate succession will work in this case. Because the adoption of your partner’s son was not finalized prior to death, he is not your son in the eyes of the law.  Therefore, the court will look to see if you have parents to take the estate.  You do not have any living parents so the court will look to the nearest generation to your parents and pay the estate to your brother.

What will happen here? ?Your entire estate will go to your brother.  This means that:

  • Your partner has no right to remain in the home owned only in your name
  • Your partner will not inherit anything from you
  • The child you were trying to adopt will not inherit anything from you
  • Your nontraditional family may be put in a position of fighting for the most basic possession in your home (i.e. proving she is entitled to keep your furniture, car and other personal possessions)

But that’s not all.

Your partner may not even know that the property has been given to your brother because your unmarried partner is not entitled to receive notice of the probate proceeding involving your estate.  Please take care of those you love by drafting an estate plan with an attorney who understands the unique legal needs of nontraditional families.


Sunday, October 24, 2010

What Is Probate?

Probate is the legal process of settling your estate – paying your debts and distributing your property – after you die.  If you have a will then you should have appointed a personal representative to be responsible for handling all the matters of your estate.  But, if you did not have a will, or failed to name a personal representative, the court will appoint one for you following the order of priority established by law.

While having a will is crucial for nontraditional families, please don’t make the mistake of thinking that having a will avoids probate.?  Whether your estate will require probate depends on the type of property you own and how it is titled. The following types of property are not probated:

  1. Jointly owned real estate as it will become the sole property of the surviving title holder
  2. Payable on death accounts instruct the bank tol distribute the funds to the beneficiary listed on the account
  3. Transfer on death accounts provide that the asset will automatically transfer ownership to another upon your death
  4. Jointly held bank accounts are then owned solely by the surviving account holder
  5. Life insurance proceeds are paid according to the beneficiary you designated with the insurance company

Property not in any of the above categories, not in a trust, or that is owned solely in your name is subject to probate.

What happens if you have probate property?

Once it is determined that probate is necessary, your “personal representative” (if there is a will) must first decide whether a formal or informal probate process is required.  Then the personal representative files the appropriate application with the probate court in the county where you lived at death.  Upon determining that the application is complete, the probate registrar officially appoints the personal representative. Your personal representative must send notices of appointment to all interested persons, take possession or control your property, pay creditors, distribute assets and close the estate.

I’ve heard many of my colleagues state that probate in Minnesota is not a big deal as it’s not too expensive and doesn’t take too long.  While this may be true for my “traditional” clients, it is not true for my nontraditional clients.  Current probate laws only protect those considered to be in “traditional” relationships.  So, if you would like to have control over who gets your stuff, please be sure that you 1)? review and update your beneficiary designations on a regular basis; and 2) get a valid will.


Wednesday, October 20, 2010

Wills vs. Trusts: What is a Will?

When it comes to estate planning there are two major vehicles for the distribution of property: A will and a trust. Both are very useful tools and can accomplish specific goals—but how do you know which one is best for your family? Contrary to popular belief, the two are not adversarial concepts, and you don’t have to pick just one or the other.  In many cases the two documents work in tandem, with one document supporting the other.

Which document you will need (or whether you’ll want to have both) depends on a number of factors, some of which may seem completely irrelevant at first: the size of your estate, your goals for that estate, the age of your children, your marital status, your retirement savings, and many, many more. Nontraditional families need to be especially aware of how each document can help them achieve their goals—or in some cases hold them back.  In this post and my next I will go over each document, what it does, and why your family may need it.

What Is A Will?

A will is a formal declaration of your wishes. It is a document you create to declare the extent of your privately held property (it does not cover jointly owned property) and what your wishes are for the distribution of that property. You name an executor to carry out your wishes, and you can even include a nomination of guardian for young children in your will. A will does not go into effect until after you die; before then it is simply a piece of paper containing your private wishes (and as such can be amended at any time.) However, once you have passed away your will no longer remains private, it now becomes a matter of public record, available to anybody who would like to view it, and overseen by the court in a sometimes lengthy and expensive process called probate.

Do You Need a Will?

The easy answer to this question is: Yes—everyone needs a will. If you choose not to create a trust a will is the only way to let everyone know your wishes.  Even if you do choose to create a trust for your family, you’ll want to create a “pour-over” will to go along with it. A pour-over will directs that all of your assets be transferred, or “poured-over” to the trust.  The pour-over will adds a safety net to your estate planning, because any assets that were not included in the trust, for one reason or another, will be poured-over to it by virtue of the will.

My next several posts will dig further into what a will can do for a nontraditional family and, more importantly, what may happen if someone in a nontraditional family dies without a will.

Why do you need a will and a trust? In my next posts I’ll discuss more about what a will entails, and why it is crucial for non-traditional families to have them.  In my final post in the series I will cover the subject of trusts: what a trust is, why your family might need one, and why non-traditional families in particular will want to consider a trust as an option for their family. I hope you’ll check back frequently to learn more!


Wednesday, October 13, 2010

Unable To Marry

I read an article today explaining how Jennifer and her boyfriend live together but can’t get married.  Why?  Not for the reasons you may think.  According to the Current Population Survey released in September, Minnesota – and the nation – saw a dramatic increase in unmarried couples who live together.  The data shows an increase nationally from 6.7 million unmarried couples living together in 2009 to 7.5 million couples in 2010.  Why are so many more couples living together but not getting married?

According to today’s article, it’s the economy’s fault as more couples are moving in together to avoid paying for two households despite wanting to remain unmarried.  While this certainly saves money, remaining unmarried may expose the couples to other negative consequences.  These potential consequences vary depending upon whether a couple breaks up or stays together.

The article then quoted? Sheela Kennedy, a University of Minnesota demographer who studies cohabitation?, as saying that most unmarried couples living together will split up or get married within two years and only 14 percent are unmarried and living together five years later.

Living together does not grant you any rights with regard to each other.  So, if you move in with your loved one but decide not to – or can’t – get married, please be sure you protect yourselves by having a cohabitation agreement.  A cohabitation agreement is an understanding between two unmarried persons who live together concerning everything that relates to their individual assets.  These agreements offer protection for each person in the event of a breakup and grant the couple some of the same protections and rights given to married couples.  In Minnesota, a valid cohabitation agreement must be written and signed by both parties and is enforceable regardless of the sex of the parties.

Even if you remain together, you are not out of legal hot water.  Under Minnesota law, your partner does not have the ability to speak on your behalf for medical decisions, act on your behalf for financial matters or assist in making decisions in the event of your incapacity or death.  So, be sure that ?while you are happily living in unmarried bliss you have an up-to-date estate plan.


Tuesday, October 5, 2010

Your Guide to Non-Traditional Estate Planning-One Step at a Time

You’ve read in my recent posts why you need to plan your estate, you’ve talked to your partner, and you’re ready to go… you just aren’t sure how to get started.  This is understandable; estate planning can feel like an overwhelming endeavor when you’re presented with everything at once.  The trick to getting started with your planning is to take it one step at a time.

Write down your goals. You may have a number of different goals for your estate plan (this is especially true for gay, unmarried, or otherwise “unique” families); they can be anything from “name my partner as guardian of our children” to “ensure I have the right person making important decisions for me.” Knowing your goals from the outset will make all subsequent decisions much easier.

Make a list of the people you trust. Throughout your estate plan you’ll be nominating people to take over financial, healthcare, and guardianship responsibilities if something happens to you.  Have a rough list of people you would trust in these roles.  Begin with your initial goal and go from there.  For example, if your initial goal was guardianship of minors, make a list of people you would trust with the care your child, and move from there to financial decision-makers, etc.

Make a list of people you don’t trust. If you’re having trouble coming up with people for the list above, it sometimes helps to consider the people you would NOT want to be responsible for your child, your finances, or your healthcare.  Write down those people and work backward from there.  If your kids must be kept from crazy Uncle Joe at all costs, would your cousin Emily be an acceptable alternative, even if she does have a different parenting style?

Know your assets. Make a list of all your assets, their approximate values, and in whose name they are owned. (Non-traditional families often hold assets in the name of only one partner, and unfortunately you can’t simply add your partner’s name as a joint owner of the asset without incurring gift tax.) Having a clear list of this information will help your estate planner determine what kind of asset protection or inheritance plan you need. Assets include:

  • Your Home
  • Investment/Vacation Property
  • Bank Accounts
  • Savings/Investment Accounts
  • Retirement Accounts
  • Life Insurance
  • Family Owned Business
  • Etc.

Bring In the Professionals. Estate planning is a very technical process—especially when you’re trying to achieve the same goals traditionally married couples receive as a matter of course—and you’ll need professional help to cover all the bases.  The good news is that getting started is half the battle.  Once you have your goals, and you’ve called to make an appointment, I can help you take care of the rest.

It may look overwhelming at first, but even non-traditional estate planning is really just a series of small steps, each of which leads you to the achievement of your ultimate goal: Protecting and providing for your partner and family.  Now that you know it’s so easy… what are you waiting for?

Creative Commons License photo credit: mathplourde


Monday, October 4, 2010

Grow Up, Grow Old and Enter the Closet Together.

In concentrating on the ways in which LGBT families may protect themselves, I generally focus on young growing families.  But a recent article reminded me of the vulnerability of elderly gay people.

The National Gay and Lesbian Task Force reports that there are approximately 1.4 to 3.8 million LGBT Americans over the age of 65.  While it may be true that LGBT persons have a large network of community on which to rely for support, generally this network will be close to the same age so may not offer much assistance.

Elderly LGBT people deserve to live out their twilight safely and openly.  Minnesota’s non-discrimination statute does not go far enough to protect its elderly LGBT population.  The non-discrimination statute should be amended to provide protections for seniors on the bases of sexual orientation and gender identity or expression in insurance, housing and public accommodations.

Be sure you are protected when you are at your most vulnerable by having a power of attorney, health care directive and HIPAA waiver.


Wednesday, September 22, 2010

Non-Traditional Couples Don’t Have the Protections They Need–Planning Can Help

Who do you want at your bedside when you’re terminally ill–Your best friend of 20 years or the brother you haven’t spoken with in 20 years?  And who should inherit your home and the assets contained within it when you die—or your hard-earned retirement savings for that matter—your distant uncle, or your partner who has given up his or her income to stay home to raise the child you have together?

Minnesota does not formally recognize any relationship other than marriage and, as such, does not grant unmarried couples any legal protections.  I have spoken with numerous clients who believe that unmarried couples do have certain rights – hospital visitation or medical decisions – when it comes to their partners; but this is not true. Without the proper legal documents, unmarried couples do not have the right to make decisions for their loved one either during illness (with hospital care) or after death (with disposition of remains).  In fact, unmarried couples are not even entitled to notification of the death of their partner.

Although the law may not automatically recognize your partner as your “spouse”, there are legal steps you can take to ensure that your partner does get the same rights and benefits as a married spouse.

Executing an Advanced Health Care Directive would ensure that medical personnel recognize the authority of your trusted partner to make medical decisions for you. Some hospitals might not want to recognize a non-traditional partnership, but ALL of them recognize the role of a Health Care Agent.

Signing a HIPAA waiver means that your partner will not be kept in the dark regarding your medical status and other personal information hospitals keep confidential.

Creating a Will or Trust means you can nominate the person you want to act as executor of your estate upon your death, and who the beneficiaries of your property will be, regardless of whether you have a marriage license or not.

Executing a financial power of attorney gives your partner the power to make financial decisions if you are unable. This is especially important if you have mingled finances and have been making joint decisions for years already.

Updating your life-insurance and IRA or 401(k) beneficiary forms allow you to name your partner as the sole and primary beneficiary of these proceeds. And if you’re still concerned, creating an irrevocable life insurance trust or a retirement trust will provide further protection and peace of mind.

These documents are the bare minimum you need to achieve the peace of mind that comes with knowing that your chosen representative will be able to speak for you, and inherit from you, in the event of unforeseen circumstances.

I understand non-traditional estate planning because I am a part of a non-traditional family. I understand how important it is to know that the right person will be by your side if anything happens, and that your partner and children will be taken care of when you are gone.  I can help you achieve the security and peace of mind that many traditionally married couples take for granted.  To learn more, please contact my office today.


Thursday, August 19, 2010

Welcome To Unique Family Law

Welcome to Unique Family Law and thanks for reading my first blog post.  This post is a brief introduction to my firm and an explanation of what you can expect from this blog.  I represent unique families, from GLBT families to unmarried couples to blended families.  We each have unique needs that the traditional legal system was not designed to protect.

The legal landscape is fast-changing with regard to the laws that affect unmarried, GLBT or blended families from the legalization of gay marriage in Iowa to Minnesota’s innovative Transfer on Death Deed or Hennepin County’s newly established Co-Parent Court for unmarried parents.  Through this blog, I plan to cover new advancements as well as established law that touch on the lives of unique families by addressing such questions as:

Why do I need a will?

Is a trust really necessary?

Why do I need to have a HIPAA waiver if I have a health care directive?

What’s so bad about probate anyway?


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