Grieving the loss of a loved one is a difficult and challenging process under any circumstance. Add a need to probate the decedent’s estate and the endeavor can be overwhelming. Probate administration is dictated by Minnesota statute and can be challenging to navigate for those unfamiliar with the process.
Whether nominated by the decedent’s will or family consensus, the job of the personal representative is oftentimes demanding and in many ways thankless. Hartley Law Office provides decades of probate experience to ensure the process is made understandable and efficiently administered.
Click on the links below for further probate administration information or contact Hartley Law Office to schedule a free initial consultation.
A trust and will share a similar function in that both documents distribute a person’s assets upon death. A will distributes probate assets. A probate asset is titled in the decedents’ name alone. Probate asset examples include a home owned exclusively by the decedent or a financial account or life insurance policy that fails to name a beneficiary. Probate assets require assistance from a probate court to transfer title. A will does not dictate the distribution of non-probate assets. A non-probate asset passes title automatically upon the owner’s death and therefore, does not need assistance from a probate court. Examples include real estate owned by two or more persons as joint tenants and financial accounts and life insurance that name a beneficiary. Importantly, if a will directs the distribution of a non-probate asset, the titling or beneficiary designation of the non-probate asset has priority over the will language.
A trust in an estate planning context allows for the management and ultimate distribution of assets that have been transferred to the trust. A trust can be irrevocable, meaning the person creating the trust, referred to as the Settlor, cannot amend, revoke or otherwise control the trust assets after the trust has been created and funded. Irrevocable trusts are often used to reduce the value of the Settlor’s estate for tax reduction purposes. In most estate planning instances, a revocable trust is used. A revocable trust can be amended or revoked at any time and the Settlor retains full control over the trust assets until mental incapacity or death.
A trust typically appoints the Settlor as the initial trustee and primary beneficiary. A successor trustee is also named and given the authority to step in and manage the trust assets if the initial trustee is unable to act or has passed away. The Settlor transfers ownership of assets or names the trustee or successor trustee of the trust as primary beneficiary The transition of trust assets from trustee to successor trustee creates non-probate assets; thereby avoiding the need to probate the Settlor’s trust estate. During the Settlor’s lifetime and mental capacity, the trust assets are controlled exclusively by the Settlor as the initial trustee and primary beneficiary.
Upon the Settlor’s mental incapacity or death, the successor trustee takes control of the trust assets as a fiduciary to the trust beneficiaries. The trust establishes a plan of distribution for specific gifts, personal effects and the residue of the trust estate. A trust can create additional trusts to address distributions to grandchildren or the continued ownership of a family cabin.
Trusts are typically more expensive to create than a will or certainly a transfer on death deed if probate avoidance is a primary consideration. The increased trust cost however, is considerably less than the costs and expense of a probate proceeding. Furthermore, a trustee is granted sole authority to administer the trust estate; thereby avoiding the potential for conflict and deadlock between transfer on death deed grantee beneficiaries. A trust also avoids issues created when the grantee beneficiaries own the property as tenants in common and one or more grantee beneficiary dies leaving minor children.
Depending upon a person’s assets and intentions, a trust can be an effective way to transfer assets upon death. Call or email Hartley Law Office for more information or to schedule a free initial consultation.
DETERMINATION OF DESCENT
In some instances, a probate is not commenced immediately following the decedent’s death. Perhaps a family member continued living in the decedent’s home or a surviving spouse was unaware the fifty year old deed to the house named the deceased spouse as sole title holder. It’s oftentimes years later when the house is being sold that the decedent’s unresolved interest in the property becomes an issue. If the decedent died more than three years prior, a determination of descent proceeding in the probate court will become necessary.
If no will has been probated in Minnesota or any other state, an interested person or assignee or successor of an interested person may file a determination of descent petition. Under Minnesota law, an interested person includes heirs, devisees, children, spouses, creditors, beneficiaries and anyone else have a claim against the decedent’s estate. The petition must be brought in the probate court of the county where the decedent resided or the county where the real or personal property is located. The court issues a notice of hearing on the petition that must be served upon all interested persons and published in a legal newspaper in the county where the matter has been brought for two consecutive weeks.
After filing the petition and prior to the hearing, the petitioner must submit an application for a clearance of medical assistance claims to the county agency in which the petition is pending. The county agency then determines whether the decedent or the decedent’s predeceased spouse received medical assistance giving rise to a claim. The county agency then issues a clearance for medical assistance claims stating that no medical assistance claims exists or that a claim exists and the total amount of the claim.
At the hearing, the court will hear testimony of the petitioner that proves the petition. The court will also ensure all medical assistance claims have been paid or are satisfied before entering a decree of descent assigning the real or personal property to the persons entitled to it pursuant to a will or Minnesota intestacy laws.
Contact Hartley Law Office for further information or to schedule a free initial consultation regarding determination of descent proceedings.
AFFIDAVIT FOR COLLECTION OF PERSONAL PROPERTY
Thirty (30) days after the death of a decedent, a successor of the decedent may present a certified
death certificate and an affidavit of the successor to any person indebted to the decedent, any
person having possession of tangible personal property such as financial accounts or a safe
deposit company controlling the right of access to the decedent’s safe deposit box. Successors
include those persons other than creditors that are entitled to property of a decedent under the
decedent’s Will or Minnesota law. An exception to the creditor exclusion allows a state or
county agency with a medical assistance claim against the decedent to utilize the affidavit to
recover personal property not exceeding $75,000.
Further requirements include:
The date of death value of the entire probate estate less any liens and encumbrances does
not exceed $75,000;
No probate action is pending or has been granted in any jurisdiction;
The claiming successor is entitled to the payment or delivery of the property;
Upon receipt, the person (individual, financial institution, e.g.) delivering the property is
discharged or released of liability to the extent the person dealt with a personal representative of
the decedent. The person is not required to ensure how the personal property is distributed,
inquire into the truth of any statement in the affidavit and must rely upon the representation in
the affidavit concerning the value of the entire probate estate. If for instance the financial
institution refuses to deliver the remaining funds in a checking account, the bank will be
compelled to act upon the successor proving their right to the property in a judicial proceeding.
The bank is then accountable to any personal representative or other person having a superior
Contact Hartley Law Office for further information or to schedule a free initial consultation
regarding affidavits for collection of personal property.
At Hartley Law Office, we specialize in Probate Administration, providing dedicated legal representation to estates and their executors, also known as personal representatives, throughout the entire probate process.
The personal representative, typically designated in the decedent’s will, carries the responsibility of effectively managing the estate during probate. With numerous obligations to fulfill, personal representatives often seek the assistance of our experienced attorneys to ensure compliance with all pertinent laws and regulations.
Our firm offers comprehensive support to personal representatives, assisting them in fulfilling their legal duties. This includes meticulously documenting and safeguarding the estate’s assets, such as real estate, personal property, bank accounts, investment portfolios, and insurance policies. We also facilitate communication with heirs, identify creditors, settle estate debts, and handle the necessary probate submissions.
Furthermore, our attorneys collaborate with personal representatives in preparing the final account of the estate, which provides a comprehensive overview of the decedent’s assets and debts. This account also proposes a fair distribution of property to the decedent’s rightful heirs. In cases where the decedent had an estate plan that incorporated a will, we ensure adherence to its terms, while establishing and administering any trusts outlined in the plan.
Lastly, our legal team supports personal representatives in the preparation and filing of the decedent’s final income tax return. Additionally, we assist in fulfilling any estate tax obligations, ensuring a smooth resolution of all tax matters.
At Hartley Law Office, our goal is to guide personal representatives through the probate administration process, providing them with the necessary expertise and guidance to successfully navigate this complex legal terrain.
To provide clarity on the subject of probate administration, we at Hartley Law Office have compiled a list of important definitions related to this topic:
Probate Administration: Also known as estate administration, probate administration is the court-supervised process of verifying and distributing an individual’s assets after their passing.
Last Will and Testament: A Last Will and Testament is a legally binding document that outlines an individual’s final wishes upon their death. In Minnesota, wills typically go through probate, with certain exceptions discussed later in this article.
Probate Litigation: Probate litigation, also referred to as estate litigation, involves formal legal disputes that arise during the probate process. Examples include challenges to the validity or modification of a will before the decedent’s death.
Decedent: The term “decedent” simply refers to an individual who has passed away. Personal Representative: A personal representative is a legally appointed individual responsible for overseeing the administration of an estate.
Executor: An personal representative is named in a will and entrusted with the responsibility of managing the financial obligations of a deceased person.
Trust: Trusts differ from wills as they can be established to provide ongoing financial support to beneficiaries during their lifetime, rather than solely upon the individual’s death.
Trustee: A trustee is an individual designated to manage and ensure the proper administration of a trust, adhering to established guidelines.
Beneficiary: Beneficiaries are individuals named in an estate plan who are designated to receive specific assets from an estate after the individual’s passing.
At Hartley Law Office, we aim to provide comprehensive information and assistance regarding probate administration. Our team of experienced professionals is dedicated to guiding you through the process, addressing any legal concerns, and ensuring that the wishes of the decedent are carried out efficiently and in compliance with the law.