Minneapolis Estate Planning and Probate Lawyer Blog

After the death of the Owner, the following documents must be filed with the county recording office in which the Transfer on Death Deed was originally recorded:

1. An Affidavit of Identity and Survivorship, which identifies that the Grantee Beneficiary or Beneficiaries survived the deaths of all Owners by at least 120 hours.
2. Certified Copies of Death Certificates for each Owner.
3. A Medical Assistance Clearance Certificate issued by the county agency in which the real property is located for each Owner.

You own property in your name alone and want to be sure that it goes to the beneficiary of your choice without the expense and delay of probate.  So, you decide to use a Transfer on Death Deed (“TODD”) to achieve this purpose.

But what happens if you change your mind after you have executed and filed the deed with the county?  Can you cancel or change the TODD?

Yes. The Deed does not do anything to your rights over the property during your lifetime.  It only takes affect upon your death.  Therefore, nothing is set in stone until after death.  You may, at any time, change the beneficiary or cancel the deed altogether.
 

If you are a property owner and wish to use a transfer on death deed (“TODD”) to transfer that property without the hassle of probate, you must

1. Choose a beneficiary or beneficiaries
2. Execute a valid deed that expressly states that it is effective only upon your death
3. Record the deed in the county in which the property is located prior to your death.

A few things to note.  If the property is jointly owned then all owners must sign the deed.  And as #3 above states, it is not enough to execute the deed - you must also record it with the proper county.

We all know the feeling.  You are hired at a new job and show up for your first day all scrubbed up and ready to work.  Then you spend your first day – at least – filling out endless forms.  You are suddenly faced with forms for insurance, retirement, pension, parking permits, sexual harassment policies, dress codes and codes of conduct.

Perhaps you diligently fill out each form in final by the end of that first day and properly turn it into HR.  Perhaps not.  If you fall within the latter category – as many of us do – please be sure that you DO NOT overlook any form that requires a so-called beneficiary designation.  If an employee is married, then her spouse will automatically be listed as the beneficiary on any life insurance or retirement accounts.  But, if the employee is not married or wishes to have a beneficiary other than her spouse, she must be sure to include that persons name as the beneficiary on all such forms.

Any assets with a beneficiary designation will pass to the beneficiary without the hassle, or expense, of going through the probate process.  The intended beneficiary may avoid going to court and proving that the employee intended to leave the account to her.

Caution – your beneficiary designations trump your will.  So if your current partner is listed as the beneficiary  in your will but your life insurance designation still lists someone else (like your ex), guess who gets the insurance money?  That’s right – your ex. A good rule of thumb is to check your designations every year during your open enrollment period.

In a previous post I wrote about how difficult it is for parents to choose guardians for their children; but most parents, even if they are unsure about who they want to serve as guardians, are positive in the knowledge of who they don’t want caring for their children. You hope that creating a nomination of guardians will ensure that your child ends up in loving and capable hands if anything should happen to you, but every once in a while a situation arises where someone unsuitable—or even dangerous—will petition for guardianship.  Luckily, there are steps you can take to prevent you children from falling into the wrong hands.

If you’ve already executed (or are planning to execute) a Nomination of Guardians then you’ve taken the first step. But beyond that, you can execute something called an Exclusion of Guardians (also known as an Anti-Nomination of Guardians). In this document you name the person or people who should under no circumstances receive guardianship of your children. In the document you may want to state the reasons why your child should be kept out of the care of this person, but it is not always necessary.

Oftentimes the excluded guardian is a member of the extended family, and parents fear that executing so strong a document might be hurtful or break the peace. If this is the case then you can request that the Exclusion of Guardians be kept confidential. This means that unless and until the excluded guardian tries to gain guardianship over your children it can be stored privately, and there is no need for anyone except you and your attorney to be aware of its existence.

An Exclusion of Guardians may seem like a drastic measure, but there are many valid reasons to execute an Exclusion of Guardians; a history of abuse, financial irresponsibility, mental illness, alcoholism, or other more personal reasons. How are judges to know if a seemingly stable relative is unfit to serve as guardian unless you tell them? This is exactly what an Exclusion of Guardians does.

If you feel strongly about this issue please call my office for more information. You hope the document will never need to be used—never be seen by any eyes other than your own—but when it comes to your children you are always better safe than sorry.

If you have kids – YOU MUST HAVE A VALID WILL.  A will is where you still have some say in who will raise your child(ren) even after your gone.  You use a will to speak when you are no longer able to in order to tell the court who you believe would be the best choice to act as guardian to your kid(s) if you (and any other parent) are no longer around.

Choosing people to serve as guardians of your children is one of the most difficult decisions you will have to make—but it’s also one of the most important.  This is especially true for nontraditional families, who may not always have the advantage of biological parentage on their side.  Likewise, it is a difficult thing to contemplate if you are a single parent.

Many parents are so paralyzed by the fear of making the wrong choice of guardians for their children that they keep putting it off, hoping that one more day (or one more week, or month) will bring an epiphany of decision.  Further, partners may disagree about whom to choose.  But delaying the process and making no decision can end up being worse than making the wrong decision.

If something happens to you and you have not nominated guardians for your children then it is quite possible that your children could be put in the care of the state Social Services until a judge can appoint guardians for them, and even then there’s no guarantee the judge will place them with the people you would have chosen. This is especially true if you would prefer to pick a guardian that is not related to you by blood or marriage.

Here are few qualities to consider that may make the decision-making process a little easier:

Age: How old do you consider to be too old (or too young) to be a guardian? You might think that your aging parents are an option as guardians—but only as a last resort.

Religion/Politics: Views on religion and politics are often indicative of a moral and world view in general.  You may not find someone whose beliefs match yours exactly, but you probably know which ethical issues are deal-breakers for you and your partner.

Parenting Style: Is a consistent parenting style important?  Perhaps you think that your brother and sister-in-law have a different discipline style than you do, but are loving parents, and are therefore people you are comfortable nominating as back-up guardians.

Location: Do you want your children to remain in their familiar school and city?  If you choose permanent guardians who will have to travel from a distant location consider also naming temporary guardians who live nearby.

Family and Finances: The inheritance you leave will likely help your chosen guardian with the financial aspect of raising your child, but you will still want to consider the family and financial situation of your guardian.  Will your only child suddenly have to adjust to having siblings?  Will your guardians need to move to a new home to accommodate their larger household?

Finding someone to replace you as a parent is impossible, but there are good and loving people in your life who may serve as a close second.  Consider people for each of the above categories and make a list.  After deliberation, you might realize that the people you feel the most comfortable asking to be guardians of your children are your dear friends, the ones you met at the parent’s club, and with whom you spend most weekends and holidays. Hopefully you will also find one or two people to name as back-up guardians as well.  Please know that this nomination isn’t permanent.  You may change your mind at any time by drafting a new will.

Coming up with your list of guardians may be the hardest thing you ever do, but creating a nomination of guardians is the best thing you do for your child.

Of all the discussions surrounding our estate plan, the issue of appointing a guardian has been the most stressful for my partner and me.  We are both attorneys and still had a difficult time working through the estate planning process. because of questions like these.  Family?  Well, our parents are aging and generally not in a position to chase around a 3-year-old.  My siblings are a lot younger and in the process of figuring out their own lives.

Friends?  Most of our friends who actually want children, have toddlers of their own.  And, let’s face it, in these difficult economic times, no one is rolling in money.  How important is location?  If such a catastrophic event occurred, our daughter’s life would be shattered enough, would we want her taken from her home, school and community?  Or is it more important that she be cloaked in the comfort of familiar people and things?  Who will raise her with the beliefs and values that we have worked so hard to instill?

The truth is that no one else can be us.  But, a good estate plan gives the guardians we choose a fighting chance to raise her according to our wishes.  We have spoken to the guardians about what is important to us and we have ensured that our plan leaves instructions, and assets, for her continued care.  As difficult as these questions are, we worked through them and came up with a guardian plan that gave both of us peace of mind that our daughter will be taken good care of in the event of a catastrophe.

UPDATE: The new hospital rules went into effect yesterday.  You can now choose your visitors.

Starting in January you will have the right to choose who can visit you in the hospital.  That’s because the Centers for Medicare & Medicaid Services (CMS) finally responded to a prior Presidential Memorandum by announcing a new rule that would allow patients to determine who may visit them while in any hospital that accepts Medicare or Medicaid.

The new CMS rule states that hospitals are required to explain to patients their right to choose who can visit them during hospital stays, regardless of whether the visitor is a family member, spouse or domestic partner. The rule will be effective 60 days after publication.

This rule offers some relief for anyone wanting to be visited by someone outside the accepted traditional family model. No longer will a disapproving hospital staffer have the power to deny visitation by your unmarried partner, stepchild or best friend. But keep in mind that the new rule only helps if you are able to tell the hospital who you want as a visitor.  It will not:

1. Help if you are unable to speak for yourself
2. Grant anyone the right to make medical decisions on your behalf; or
3. Require hospitals who do not accept Medicare or Medicaid to do anything.

So, if you are unconscious when brought to the hospital, your partner may still be unable to visit. Please ensure that your wishes regarding medical care and visitation are honored – get a Health Care Directive now.

My prior post explained what a Power of Attorney is and how it works.  But you need to know more about this powerful tool.  For instance, how do you create one?  And what powers does it grant to your agent?  Whom should you choose as your agent?

How do you create a power of attorney?

Under Minnesota law a valid POA must be:

1. In writing
2. Signed by you in front of a notary public
3. Dated appropriately
4. Clear on what powers are being granted.

By following the requirements above, you will create a limited power of attorney.  But you also have the ability to grant more or less power to your agent and control the duration and how the POA becomes effective by using a durable or springing POA.

Durable POA

A durable power of attorney remains in effect after you become incapacitated so that your agent may continue to act on your behalf.  In order to create a durable power of attorney, the document must include a statement such as: “This power of attorney shall not be affected by incapacity or incompetence of the principal.”   In other words, the POA must be clear that the powers granted to your agent continue upon incapacity.

Springing POA

Alternatively, you may create a springing power of attorney, which doesn’t take affect until after you become incapacitated.  This is a safe choice if you do not want to give your agent the immediate power to handle your matters but you want to be sure that you have someone to take care of things if you are incapacitated.  For instance, single parents may not have someone to whom they want to grant the immediate power to write checks or withdraw money but whom they do trust to handle these matters upon incapacitation.  To be a springing POA, the document must state that it is effective only in the event that you are incapacitated.

What powers can you grant to your agent?

In Minnesota there are two primary POA options: 1) the form created by statute, known as the ‘statutory short form power of attorney’; or 2) the common law power of attorney.  The difference between the two mainly comes down to the type and amount of power you want to give to your agent over your financial matters.

Minnesota Statutory Short Form POA

Under Minnesota’s statutory short form power of attorney you simply complete the form “as is” and check a box next to the specific power listed to allow your agent to handle any or all of your financial matters related to a limited list of financial matters.

You still have the power to restrict the duration, powers granted and way in which the POA becomes effective. And, of course, you do not need to check all the boxes.

But, Minnesota’s short form has its limits, especially for those who are unmarried and wish to be sure their needs are taken care of in the event of incapacity.  For instance, the short form does not give your agent the power to create, amend or terminate a trust.  For these expanded powers you need to have your attorney draft a common law POA.

Common Law POA

The term “common law power of attorney” merely refers to any POA that does not conform to the statutory short form.  In other words, there is the statutory short form and then there is everything else.  Due to the limited flexibility of the statutory short form, I always use a common law form, especially for my nontraditional families who are unable to rely on the law to protect their interests.  As explained in prior posts, persons who are unrelated by blood or marriage may find it impossible to obtain court approval to handle matters for their loved ones.

Keep in mind that being married does not give couples the automatic right to handle all of their spouse’s financial affairs.  If one of you is incapacitated, the other spouse will need a POA to access information related to your 401k or to sell jointly held real estate.  Whether married or not, be sure that if you become incapacitated, your matters will be handled by someone you trust – get a POA now.