Minneapolis Estate Planning and Probate Lawyer Blog

Wednesday, November 9, 2011

Proper Estate Planning for Your Retirement Accounts

Retirement Accounts and Estate Planning

For many Americans, retirement accounts comprise a substantial portion of their wealth. When planning your estate, it is important to consider the ramifications of tax-deferred retirement accounts, such as 401(k) and 403(b) accounts and traditional IRAs. (Roth IRAs are not tax-deferred accounts and are therefore treated differently). One of the primary goals of any estate plan is to pass your assets to your beneficiaries in a way that enables them to pay the lowest possible tax.

Generally, receiving inherited property is not a transaction that is subject to income tax. However, that is not the case with tax-deferred retirement accounts, which represent income for which the government has not previously collected income tax. Money cannot be kept in an IRA indefinitely; it must be distributed according to federal regulations. The amount that must be distributed annually is known as the required minimum distribution (RMD). If the distributions do not equal the RMD, beneficiaries may be forced to pay a 50% excise tax on the amount that was not distributed as required.

After death, the beneficiaries typically will owe income tax on the amount withdrawn from the decedent’s retirement account. Beneficiaries must take distributions from the account based on the IRS’s life expectancy tables, and these distributions are taxed as ordinary income. If there is more than one beneficiary, the one with the shortest life expectancy is the designated beneficiary for distribution purposes. Proper estate planning techniques should afford the beneficiaries a way to defer this income tax for as long as possible by delaying withdrawals from the tax-deferred retirement account.

The most tax-favorable situation occurs when the decedent’s spouse is the named beneficiary of the account. The spouse is the only person who has the option to roll over the account into his or her own IRA. In doing so, the surviving spouse can defer withdrawals until he or she turns 70 ½; whereas any other beneficiary must start withdrawing money the year after the decedent’s death.

Generally, a revocable trust should not be the beneficiary of a tax-deferred retirement account, as this situation limits the potential for income tax deferral. A trust may be the preferred option if a life expectancy payout option or spousal rollover are unimportant or unavailable, but this should be discussed in detail with an experienced estate planning attorney. Additionally, there are situations where income tax deferral is not a consideration, such as when an IRA or 401(k) requires a lump-sum distribution upon death, when a beneficiary will liquidate the account upon the decedent’s death for an immediate need, or if the amount is so small that it will not result in a substantial amount of additional income tax.

The bottom line is that trusts typically should be avoided as beneficiaries of tax-deferred retirement accounts, unless there is a compelling non-tax-related reason that outweighs the lost income tax deferral of using a trust. This is a complex area of law involving inheritance and tax implications that should be fully considered with the aid of an experienced estate planning lawyer.



Friday, November 4, 2011

Minnesota Seeks Federal Approval of Medicaid Changes

I have recently been approached by several people seeking assistance on an increasingly common situation: what to do with a parent who suddenly needs living assistance.  One thing to note for these clients is that they are not alone. According to the statistics related by the department of human services, 557,000 Minnesota residents received Medical Assistance (Minnesota’s Medicaid program).

In the past Medicaid assistance has meant receving money to put a loved one into institutionalized care. Originally, Medicare would not pay to keep someone out of instituionalized care. But that is changing as people seek to care for loved ones in a more familiar environment. Recognizing this trend, Minnesota’s Human Services Commissioner, Lucinda Jesson, is set to requestapproval from the federal government for large scale changes - a so called "global waiver" - that would allow the state to have increased flexibility in how it can spend federal human-services funds.

In a recent interview, Ms. Jesson stated that the waiver would allow Minnesota to use Medicaid funds to pay for home and community-based services first.  She believes that people would rather stay in their homes and communities than go to a facility.  While there is currently a system of exceptions that allow members of certain populations to remain in their homes or communities, it is very difficult to determine which programs cover what population. Ms. Jesson feels that, if given the chance, Minnesota could design a better system.

The hope is that under a new program, the Minnesota Medical Assistance program would have the ability to serve people at their level of need by offering more services overall.  For instance, offering Meals on Wheels or personal care attendants to seniors instead of requiring that the person needing such services be institutionalized. Ms. Jesson predicts that these changes would, ultimately, save Minnesota money as it costs 3 times more to have someone in a nursing home than to care for that person in his or her home.

The DHS plans to have its proposal ready to submit to the federal government in early 2012. If this is of interest to you, please note that there will be a public comment period later this fall.




Thursday, October 27, 2011

Property Ownership: Property Titling and Your Estate Plan

I recently met with a client to retitled a home so that an ex partner would no longer be on the deed.  But, upon conducting a record's search, we learned that the client had never added the ex to the title.  It was still titled solely in my client's name. This would have been great news except that my client had paid the ex a significant amount of money to "buy back" the title to the home. Post relationship issues aside this is a good example of how titling of your property is an important issue that must be addressed during the various stages of your life. It can be affected by a new relationship, break up, incapacity or death.

Titling of assets is an especially important issue for nontraditional famlies where the law will never assume that someone unrelated by blood or marriage is entitled to an interest in an asset.  Further, if you are in a second marriage and have kids from a prior relationship, absent clear evidence (i.e. will or trust) of your intent, the Minnesota intestacy statute dictates how your assets wiill be distribued to your current spouse and prior children.

The way you title your assets is a crucial part of your estate plan.  Below we will review the ways in which you may own property.

Coordinating Property Ownership and Your Estate Plan

When planning your estate, you must consider how you hold title to your real and personal property. The title and your designated beneficiaries will control how your real estate, bank accounts, retirement accounts, vehicles and investments are distributed upon your death, regardless of whether there is a will or trust in place and potentially with a result that you never intended.

One of the most important steps in establishing your estate plan is transferring title to your assets. If you have created a living trust, it is absolutely useless if you fail to transfer the title on your accounts, real estate or other property into the trust. Unless the assets are formally transferred into your living trust, they will not be governed by the terms of the trust and the purpose of the trust will fail.  Any property not titled in the name of the trust, and that is not jointly held, will be subject to probate.  If you have a proper will then then that property may still go to your chosen beneficiary through the probate process. But, if you do not have a will, or the will is outdated, that asset may not go to the person you would have chosen if someone had asked.  Well - I am asking now.  Who should get your stuff?

Even if you don’t have a living trust, how you hold title to your property can still help your heirs avoid probate altogether. This ensures that your assets can be quickly transferred to the beneficiaries, and saves them the time and expense of a probate proceeding. Listed below are two of the most common ways to hold title to property; each has its advantages and drawbacks, depending on your personal situation.

Tenants in Common: When two or more individuals each own an undivided share of the property, it is known as a tenancy in common. Each co-tenant can transfer or sell his or her interest in the property without the consent of the co-tenants. In a tenancy in common, a deceased owner’s interest in the property continues after death and is distributed to the decedent’s heirs. Property titled in this manner is subject to probate, unless it is held in a living trust, but it enables you to leave your interest in the property to your own heirs rather than the property’s co-owners. The drawback is that the co-tenant may now share ownership of the property with someone they don't know, or worse, don't like. This can lead to a host of issues that will be discussed in a later post specificlly addressing the issues of  all types joint ownership of property.

Joint Tenants:  In joint tenancy, two or more owners share a whole, undivided interest with right of survivorship. Upon the death of a joint tenant, the surviving joint tenant(s) immediately become the owners of the entire property. The decedent’s interest in the property does not pass to his or her beneficiaries, regardless of any provisions in a living trust or will. A major advantage of joint tenancy is that a deceased joint tenant’s interest in the property passes to the surviving joint tenants without the asset going through probate. But, Joint tenancy has its disadvantages such as susceptability to creditors or the inability of any one owner being able to sell his or her interest in the property. 

Make sure your estate planning attorney has a list of all of your property and exactly how you hold title to each asset, as this will directly affect how your property is distributed after you pass on.  One way to handle this is to give your estate planning attorney the autority to discuss your plans with your financial advisor and/or insurance agent. Automatic rules governing survivorship will control how property is distributed, regardless of what is stated in your will or living trust. So, take care to review how your property is titled today!



Friday, October 21, 2011

Financial Friday: Check Your Beneficiary Designations

Unique Estate Law brings you another post from financial advisor, Jay Dworsky.  This week he discusses the importance of properly filling out, and timely review of, beneficiary designation forms. This is a crucial part of your estate plan and you should work with both your estate planning attorney and a financial advisor to ensure that your plans are not thwarted by imporoper forms for  your life insurance policy or retirment plans.

What is a beneficiary designation?

September was life insurance awareness month. If you didn’t buy that policy you’ve been thinking about, at the very least check your beneficiaries.  A beneficiary is the recipient of funds, property, or other benefits, as from an insurance policy or will. If you own a life insurance policy or participate in a retirement plan, such as an IRA, 401(k) plan, or 403(b) plan, you are asked on the application to name a beneficiary to receive the proceeds of your plan at your death. A beneficiary designation allows you to transfer the proceeds without going through probate. You can choose your spouse, a child, another adult, a charity, a trust, a partner, or your estate as a beneficiary. If you're married, however, the law may restrict your choice. Certain retirement plans require you to name your spouse unless he or she signs a form waiving this right.

How are some advantages of beneficiary designations?

  • If you own a life insurance policy or a retirement account, you get to name the beneficiary of the proceeds from those accounts
  • You are able to avoid the expense, delay, disruption, and lack of privacy of court proceedings
  • ?It is easy to do - simpley fill out a form
  • Simple to set up, change designations, costs nothing
  • Avoids probate; proceeds automatically pass to your beneficiary after your death
  • You own the property until your death
  • You can change the beneficiary at any time, subject in some cases to certain spousal rights
  • Trumps your will or Minnesota intestacy laws
  • Difficult to challenge

What else should I know about beneficiary designations?

  • Retirement plan proceeds frequently are subject to income tax
  • Proceeds of retirement plans or insurance contracts may be subject to estate tax
  • Choice of beneficiary is a factor in determining how quickly the funds of retirement plans are distributed after you die
  • Some plans don't allow alternate beneficiaries
  • You lose control of the funds payable under a retirement plan or insurance contract after your death, unless you designate a trust as beneficiary

In summary, please take the time to ensure your beneficiary designation forms are set up properly.  This is a simple - free - way to know that your assets are going to your chosen beneficiaries.  Having these in place allows your heirs to avoid probate for any assets directed through these forms and will trump your will or intestacy statutes so that you can direct the funds to anyone (with some restrictions on retirement assets if you are married as noted above). 



Tuesday, October 18, 2011

Gay Couples, Health Care Benefits and Taxes

As you know, gay couples do not have access to many of the benefits that come with legalized marriage. Because of the Defense of Marriage Act (DOMA) the federal government does not recognize gay marriages - even for those who are married in states in which it is legal. As a result, the federal tax code does not recognize same-sex unions.

So, the Tax Code treats the value of employer-provided healthcare benefits for a civil union or domestic partner as ‘imputed income’ to the employee. This means that employees who elect domestic partner benefits must pay income tax on the value of those benefits. So, while many companies offer health insurance coverage for same sex partners, the employees who take advantage of that benefit - just as their straight colleagues do - pay more for it.

But a growing number of companies are attempting to combat this injustice by covering the extra costs that same-sex couples pay for these health benefits through what's known as a "tax gross-up." There term tax gross-ups refers to the practice of employers making employees whole for additional taxes owed, thereby ensuring that employees receive the true dollar amount promised to them as compensation.

Companies such as Google, Bank of America, Barclays, Cisco, Discovery Channel and the Klimpton Hotel chain have already agreed to reimburse U.S. employees whose health benefit for same-sex partners or spouses are treated as taxable income by the IRS. And yesterday, Morgan Stanley announced that it will begin reimbursing employees for the extra taxes they pay on health insurance for their same-sex partners starting January 1, 2012.

Does your company offer a gross up? Check with your HR department today to be sure that you don't miss out on benefits that may be available to you.  And if they don't offer a gross up - ask them why.

Please note that the Bucks blog at the New York Times keeps an updated list of the companies that offer a tax gross up.



Monday, October 17, 2011

What’s Involved in Serving as a Personal Representative in a Minnesota Probate?

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.



Thursday, October 13, 2011

Probate Process, Part V: Should You Choose Informal or Formal Probate?

As stated in my prior posts, there are many different paths to choose when an estate needs to go through probate in Minnesota.  Perhaps the most key decision is whether to take the formal or informal path. The terms informal and formal refer to the type of procedure used to appoint a personal representative to handle the decedent’s affairs and to accept a Will for probate.
Informal probate is the most commonly used form, and is easiest for parties to use when the assets are straightforward and when everyone involved gets along. The formal probate process is required in many situations such as:

  • problems with the will
  • unknown heirs
  • missing will
  • minor heirs
  • high probability for dispute between heirs
  • when there are expected to be problems with the administration.
  • if the estate is insolvent (meaning there is more debt than assets)

Further, there are situations where formal probate is strongly recommended or even required. For instance, if there is no one trustworthy to act as personal representative, it might be better to proceed formally to ensure court oversight of the process. For nontraditional families, formal probate may offer a way to officially resolve disputes so as to avoid later challenges to the distribution of assets.  On the other hand, the court may not be on the side of relationships outside of blood or marriage. Understandably, many nontraditional families may be wary of court involvement in family business.

The informal probate process

The informal probate process commences when an applicant presents an application to a registrar instead of a judge. The application asks the registrar to appoint the personal representative and accept the will, if there is one. The registrar then approves the estate to proceed informally and makes sure the paperwork (e.g the will, petition for informal probate, affidavit of acceptance by personal representative, list of interested persons) is complete. The registrar is not involved between when the estate is approved and when the final accounting is due. This process has less oversight by the court and additional costs from hearings are not incurred.

The formal probate process

The formal process starts with a probate attorney filing a petition with the court on behalf of a petitioner asking a judge to: 1) determine the heirs of the deceased; 2) verify the validity of the will; and 3) appoint a personal representative.  Counties differ on whether the petitioner and attorney in a formal probate must appear in front of a district court judge so check with a probate attorney to verify the requirements in your county. After deciding to file for formal probate, a petitioner must also determine whether the estate should be supervised, meaning the court must sign off on any distributions to heirs before they are made, or unsupervised, meaning the personal representative does not need the court to approve anything before closing the estate.

Upon receipt of the petition for formal probate, the court reviews the paperwork and approves the Personal Representative. At that point, the personal representative is able to work to resolve all outstanding issues in the estate. Keep in mind that commencing a formal probate proceeding provides the petitioner with access to the judge later on if a judge’s signature is required on matters subsequent to the appointment of a personal representative. The formal process is generally more expensive due to consistent attorney intervention in obtaining the court’s approval and signature and in attending any required hearings.

The probate process can be complicated and confusing so it is a good idea for family members to meet with an experienced probate attorney to assist with making a decision on which probate process to pursue. Further, to minimize court involvement and ensure your "stuff" goes to the people of your choice, you must have a will.  Don't leave things to chance - or the State - and don't leave your loved ones with the added stress, and expense, of trying to figure out what you wanted.  Protect your family with an estate plan designed to limit hassle, delay and expense so decisions like choosing informal versus formal probate are easy allowing those left to focus on more important matters.


Monday, October 10, 2011

UPDATE: Obama Offers Relief for Same-Sex Couples Who Need Medicaid Benefits


I recently attended a conference with David Godfrey the Medical Assistance (Medicaid) Director for Minnesota.  I asked him if there were plans to implement the policy advocated by the HHS allowing the well partner of a gay couple the same ability to protect assets as married straight couples have under current law.  Specifically, under current law, in cases where an ill spouse receives Medical Assistance to pay for an assisted living facility, the well (community) spouse may remain in the couples' home.  Gay couples have no such protection as gay marriage is not allowed in Minnesota. 

Mr. Godfrey responded to my inquiry by stating that he is "in discussions with the Commissioner" on this topic and they would like to find a way to offer to gay couples some asset protection where one partner is on Medical Assistance and the other is well.  But, so far, they haven't made any progress and are unsure how to proceed with the issue given the current legislative session.

According to the Williams Institute, not one state has taken the HHS up on its offer to protect gay seniors by allowing a well partner to remain in the couple's home if the other one becomes ill and requires assistance. 

Once again the state of Minnesota will not take care of you and your loved ones in sickness or death, so you must take control to protect yourself and your family.


The Department of Health and Human Services (HHS), under White House direction, issued new guidelines to state directors of Medicaid programs regarding how Medicaid benefits may be administered for same-sex couples. The guidelines state, in part, that medicaid agencies are within their jurisdiction to help ensure same-sex partners can remain together in shared housing.

Medicaid care for long-term care is only available after an individual has run out of money to pay for his or her own care. In return for providing assistance, the state can take possession of the person’s house as a lien. But, federal law prohibits imposing this lien if beneficiaries are married to someone of the opposite-sex who’s still living in their home. The new guidance clarifies that states can offer this protection to the healthy partner of a Medicaid recipient in a same-sex relationship.

The new rules allow states to extend the same protection to remain in the home to a same-sex partner. While it doesn’t require state agencies to provide this relief – keep in mind that DOMA is still the law of the land -  it’s still a step forward in aiding more accepting states to grant relief to same-sex partners. Further, it shows that the Department of Health & Human Services continues to examine ways to offer more protections to same-sex couples while DOMA remains federal law. One step forward is better than none, right?

Friday, September 30, 2011

Financial Friday: Children and Your Family's Financial Future

Today's Unique Estate Law brings you a Financial Friday post by Jay Dworsky on the topic of the emotional and financial cost of raising children and ways to ensure a better financial future for your family.

Our children often times can be our greatest pleasure and frustration all in the same minute. One thing for sure is they will always be our greatest responsibility and probably our most expensive commitment.
We are charged with divine responsibility from the minute of conception. Often parents (both new parents and veteran caregivers) cannot conceive of being in charge of the health and well being of another human until the baby arrives.

As our children travel this long and never-dull road from infancy to adulthood, we nurture them, worry about them, discipline them and, of course, love them. Most of all, we try to protect them. We want them to grow up in a stable world, one in which they are physically safe, emotionally nurtured and financially secure. We would do anything in their power for the sake of their children so they can receive the best life has to offer.

The cost of raising a child

According to Forfiled, “The United States Department of Agriculture estimates that the average nationwide cost of raising one child from cradle to college entrance at age 18 ranges from $205,960 to $475,680, depending on income. (Source: Expenditures on Children by Families, 2009) Then, when they turn 18, add in college expenses, and your financial outlay can get even worse. How much worse? According to the College Board, for the 2010/2011 school year, the average cost of one year at a four-year public college is $20,339 (for in-state students), while the average cost for one year at a four-year private college is $40,476. Even if those numbers don't go up (and they have increased each year for decades), that would come to $81,356 for a four-year degree at a public college, and $161,904 at a private university.”

Fortunately, as long as we remain alive we somehow find a way to provide for our children. We know from the real life stories, like the widows of 911 victims, the baby is on her way whether we are there or not. It may not be appropriate cocktail-party conversation but the fact is things happen and we need to plan for them. Remember we brought this child into the world and his or her life goes on whether ours does or not.

Review your life insurance coverage

Life insurance is one of the most effective ways to protect your family from the uncertainty of premature death. Life insurance can help assure that a preselected amount of money will be on hand to replace your income and help your family members--your children and your spouse—maintain their standard of living. With life insurance, you can select an amount that will help your family meet living expenses, pay the mortgage, and even provide a college fund for your children. Best of all, life insurance proceeds are generally not taxable as income.


Wednesday, September 28, 2011

The Probate Process, Part IV: Choosing the Proper Probate Process

As discussed in my prior post, the personal representative starts a probate proceeding by filing an application or petition with the probate court.  But, prior to commencing probate, the personal representative must make a decision on what type of probate process to pursue.  Minnesota provides several different types of probate proceedings to address the variety of issues and needs which might arise. The type of proceeding to pursue depends on such issues as determining the decedent’s heirs, the validity of a will, the types of assets in the estate and their value, the potential for disputed claims, and the desire to have a court oversee the personal representative’s actions. When more than one type of proceeding is permissible, it is important to select the one that best fits the specific needs of the decedent’s estate. There are five common types of probate proceedings in Minnesota.  This post will discuss three of them and the next post will address the remaining two.

Collection by Affidavit for Small Estates

There is a special procedure provided for small estate without any real estate holdings (currently at $50,000 or less). Under this procedure, known as Collection by Affidavit, a personal representative is not appointed but, instead, the person entitled to receive the property signs a legal form known as an affidavit.  In short, the affidavit states that the person signing the affidavit is legally entitled to receive the decedent’s assets. When the properly executed affidavit is presented to the person in possession of the property, that person is then authorized to deliver the property and be fully discharged of any further responsibility regarding the property. This process can be complicated by the existence of creditors’ claims and therefore should not be done without legal counsel. Please note that Collective by Affidavit is can’t be used to transfer real estate. So, if the estate contains real estate, please contact an attorney to properly transfer the property.

Determination of Descent

If a person died more than three years ago and no probate proceeding was ever started, a determination of descent proceeding is typically required in order to transfer the decedent’s probate property. No personal representative is appointed. Instead, an attorney files a Petition for Determination of Descent with the court who then issues a decree ordering the property to be transferred according to the decedent’s will or, if no will, by statutes. This procedure is commonly used where the decedent is still in title to real property long after his or her death and the property was never transferred to the appropriate individuals.

Summary Administration

Some probate assets are exempt from the claims of creditors. When all the probate assets of the estate are exempt from creditors and the value of the assets do not exceed certain limits specified by law, summary administration may be available. Summary administration avoids a lengthy administration as no one needs to give notice to creditors. The statutes authorizing summary administration are quite restrictive. Because of this, it is infrequently available for a decedent’s estate.

Monday, September 12, 2011

The Probate Process, Part III: Initiating Probate


When last I blogged, I spoke about “wills.”  In this next part of this series on probate, I will explain how to initiate the probate process.

Step 1: Locate a will

This step in the journey begins with locating a will as the will contains the decedent’s instructions on the persons to be involved in the probate process.  Specifically, the will should nominate a personal representative to carry out the deceased’s wishes and provide the names of those chosen to receive assets.

Please note that these steps are largely the same whether or not a will is located.  What’s different then?  The difference is in the outcome.  With a will, the deceased’s stated wishes rule the day.  Without a will, the Minnesota State Legislature’s wishes trump any unwritten desires the deceased may have had.

Step 2: Choose the type of probate proceeding that’s most appropriate.

Next, a decision must be made as to the type of probate needed to carry out the person’s last wishes.  The types of probate are formal versus informal and supervised versus unsupervised.  We will discuss each of the types of probate in a later post in this series, but just know that the type of probate process chosen largely depends on how much court oversight may be needed in carrying out the decedent’s wishes. 

Step 3: Filing with the court

Once the decision is made as to whether to proceed formally or informally, an interested person (i.e. one who has a tangible interest in the outcome of the process) must file a petition/application with the probate registrar/court together with the original will.  Most likely, the person nominated as personal representative in the will files these documents. 

The  probate court will then review will to verify that it meets the requirements to be a valid legal will.  If there is doubt about the signature on the will, those who witnessed its execution may be forced to appear in court. As explained in prior posts, this can be avoided with the use of a self-proving affidavit.

The probate court will also look to the will to determine the deceased person’s choice for personal representative.  If there is no will, then the courts will appoint a personal representative.  The court will then issue a Notice of Probate.

 Step 4: Provide Notice of Probate

Upon receipt of the Notice from the court, the personal representative must provide that Notice to all heirs, regardless of whether they are named in the will, and to all those listed – individuals and charities – to receive assets.

The personal representative must also publish notice of the probate for two weeks in an approved newspaper. It is through this announcement that creditors are informed of the deceased’s death.  They have four months to announce claims to the monies belonging to the deceased.   Proof of publication and notice must be filed with the court. A later post will discuss claims and challenges to an estate.

Step 5: The Court Appoints a Personal Representative

Once the court accepts all the filings and verifies compliance with other requirements (e.g. notice and publication), the personal representative will be appointed with proof being provided by a document called the Letters Testamentary.  This document provide authorization to the personal representative – and reliance by institutions -  to move forward in handling the deceased’s legal and financial matters.

The next post will address the various types of probate proceedings and the factors involved in determining the best way to proceed.

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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.

9.3Chris Tymchuck

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