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Minneapolis/St. Paul Lawyer

 

Attorney William Seeley has 32 years of experience in drafting Wills and Trust Agreements, as well as representing clients in PROBATING THE ESTATE OF A DECEASED LOVED ONE OR FRIEND.

Do you have a valid will?  Only about 25% of Americans have wills.  We all spend a lifetime earning a living, setting aside savings for family emergencies or our retirement.  The average middle class American retires with a “nest egg” of $300,000 or more.  Yet most Americans never get around to having any attorney prepare their Will.  The Will is the signed, witnessed and written document that states which persons or organizations should get your assets in what percent AFTER YOU DIE.   Maybe because most of us don’t want to think about our death, we avoid this certain reality by never having a Will prepared.  Whatever the reason, there are several powerful reasons why YOU SHOULD HAVE A VALID WILL PREPARED BY AN ATTORNEY NOW!  Let me start by answering common concerns that clients have shared with me over the years.

  1. Why can’t I just write down which persons I want to get my assets when I die?  Many States have recognized the validity of a holographic (e.g. handwritten) will, IF IT IS CLEARLY STATED AND SIGNED IN THE PRESENCE OF TWO WITNESSES.  The biggest problem with holographic wills is that non-attorneys are often not clear about how they write their Wills.  Often the Will is not attested properly.  It rarely contains an “Attestation” clause, which requires that it be submitted to the Probate court, that notices to potential beneficiaries be sent or published and that a hearing be held.  The cost of going through this legal procedure FAR EXCEEDS COST OF HIRING AN ATTORNEY TO PREPARE YOUR WILL. 

  2. The cost of probating a Will costs too much.  First of all, if all of your assets go to your surviving spouse, there is no need for your surviving spouse to probate your will in most situations.  When it is necessary to Probate your will, our law firm charges fees based on the amount of legal work necessary – not the dollar value of estate assets.

  3. If I have minor children, can I simply write a letter stating my preferences for the person who should be the legal guardian for my children?  While such a letter may be useful to the Probate Court, first the letter must be found and authenticated.  The Probate hearing and cost of hiring an attorney to ‘prove up’ the authenticity of such a letter, which no doubt will require the testimony of friends or relatives who are familiar with your handwriting and family situation, will certainly cost much more than hiring an attorney to prepare a will which also contains a Guardianship- Trust provision.  In many situations the person(s) you want to name as the Guardian of your children will be different than the person or Trust Department you want to be the Trustee to manage your assets for the benefit of your minor children.

  4. Experienced attorney’s are trained to listen to your concerns about how you want your estate assets distributed after your death, and to create a valid Will (and or Guardianship – Trust) that will implement your wishes.  

       

LEGAL STEPS IN PROBATING A WILL

LAST ILLNESS CIRCUMSTANCES:  Our law firm is often contacted by clients shortly before a family member or friend’s death.   If a person is suffering in the final stages of a terminal illness, we advise family members to locate and review their signed will.  If the person does not have a will, we can quickly meet with the family and ill person to determine who they want to give their assets in what percentages. We can quickly draft a will for the person to review and sign.  Here truly “time is of the essence.”  Ideally, clients should make their estate plans when they are healthy.  The problem with waiting until the “11th hour” is that people are often battling against a painful, terminal illness and find it difficult to focus on their estate assets.  In some situations if a client is heavily sedated, it is not possible for them to clearly communicate to their family or attorney what their desires are regarding distribution of their estate assets.

AFTER A PERSON’S DEATH , when our law firm is retained by a family member, we advise them to locate the signed Will and bring it to us for a review of the terms of the Will and/or Trust Agreement. If possible we prefer to meet with the person named in the will as the Personal Representative (“P.R.” or estate Executor).  In the initial meeting we work with the decedent’s family or the person appointed as P.R. to get a preliminary outline of the deceased person’s assets, liabilities and addresses of beneficiaries listed in the Will.  There may be persons named as beneficiaries who died before the deceased person. We review the Will to determine who should receive what percent of the estate’s net assets.  We meet with the named P.R. to assess their willingness to carry out the duties of a P.R.  Most wills name an alternative person to serve as P.R. if the first named person is not living, unwilling or unable to serve as the estate P.R. 

DECIDING THE BEST TYPE OF PROBATE TO USE:  In our initial meeting with family members and/or the P.R. we discuss the best type of probate method to use. In most situations we recommend that the estate be probated "informally." An Informal Probate does not require expensive Probate Court hearings required in a Formal Probate proceeding.  Formal Probate is required when there is a dispute over the validity of a Will, when there is an 'omitted' child who claims that they are entitled to a share of the estate assets or when one of the beneficiaries seeks to remove the named Executor, often claiming that they are incompetent or biased.

WHERE SHOULD THE WILL BE PROBATED?   If the deceased person was a resident of Minnesota, under Minnesota state law, the will can be probated in the county in which the deceased person resided when they died, or the county in which they owned property.  In one estate probated by our law firm, the deceased person resided in Florida; however her only surviving sister lived in Minnesota.  Because she owned stock in a publically traded company located in Hennepin County, Minnesota, we were able to probate her estate in Hennepin County, Minnesota.  This saved the executor the expense of traveling to Florida to hire a Florida attorney and presenting the Petition to be appointed as Executor by a Florida Probate Court.  

ADVISING CLIENTS ON WHICH TYPE OF PROBATE METHOD TO USE:  The next question facing the person appointed as Executor for the estate is: Should the "Informal Probate" or "Formal Probate" method be used when probating the estate?  When using either the Informal or Formal Probate method, the deceased person’s Last Will or Testament document is filed with the Probate Court in the county in which the person died or owned property.  Every will should appoint an Executor (also known as a "Personal Representative ") who is responsible for locating all assets and liabilities of the decedent. 

WHAT IS THERE IS NO VALID WILL?  Several common scenarios are a decedent dies: 1) without a will; 2) with a will that has been executed but cannot be located; and 3) with a will that contains handwritten modifications that effectively void the will.  If any of the above occurs, then the decedent’s assets must be probated under the Uniform Probate Act and this jurisdiction’s intestate probate rules.  In these situations, our law firm can represent the decedent’s spouse, parents, siblings or other relatives to determine who is entitled to receive a share of the decedent’s assets after paying legitimate claims against the estate property.   

DISTINGUISHING PROBATE FROM NON-PROBATE ASSETS:  As your probate attorney, we will assist you in dividing Probate Assets from Non-probate Assets.  For example, if the decedent owned a Life Insurance Policy that named beneficiaries, this is a Non-Probate Asset which is not classified as an estate asset.  To transfer a Non-Probate asset to the named beneficiary, the person(s) named as the beneficiary (or their attorney) must provide a certified copy of the decedent’s Death Certificate and other documents  required by the insurance company plus proof of the person's identity and address.  Because very specific documentation is required, it is often more cost effective to hire a probate attorney to assist in providing required documents and preparing any redemption forms necessary to transfer assets to the beneficiary.  Probate estate assets include bank accounts, stocks, bonds, other securities, personal and real property owned by the decedent. The estate Executor is charged with accounting for and distributing all estate assets after paying legitimate creditor claims of the deceased for any unpaid bills.  The majority of these unpaid bills are often medical bills related to the deceased’s last illness, other family bills, home mortgages, utility bills and funeral bills. 

PROBATING THE ESTATE:  After deciding what probate method best fits the situation facing the named Executor, our office prepares the required petition documents and files them with the Probate Court.  We provide the Probate Court with the needed information to get the required legal notice published.  Then we petition the Probate Court to issue what is known as "Letters Testamentary" formally appointing the named Executor.  We assist the Executor in sorting through all assets and liabilities of the estate.  We prepare a notice letter to all persons (or organizations) listed in the Will as beneficiaries.  Often the Executor prefers that our law firm handle inquiries by creditors or estate beneficiaries, since this legal expense will be paid from estate assets and because most Executors are inexperienced in dealing with estate claims, or simply do not have time to deal with claims -- which can at times be complicated and stressful.   

FOUR MONTH TIME LIMIT ON MOST CREDITOR CLAIMS:   One of the legal benefits of probating an estate is what is known as the published legal notice of a person’s death and the Court's appointment of an Executor for the decedent’s estate.  After this legal notice is published in a legal newspaper for two consecutive weeks, most creditors have only four (4) months to file a claim against the Estate, or their claim will be barred.  The legal notice will state that anyone who objects to the Court appointment of a Personal Representative must file their objection with the Probate Court. (Exceptions to the 4 month time limit on creditor claims include last illness medical bills, tax obligations, legal bills relating to probating the estate, and secured claims, such as the mortgage holder of real estate owned by the deceased person.)

DEALING WITH ESTATE CREDITORS AND OTHER MANAGEMENT ISSUES:  Because our law office is experienced in dealing with creditors, we can assist the estate Executor in distinguishing legitimate from unsupported claims and negotiating substantial discounts from medical providers.  In a recent Probate for a single woman's estate where the P.R. lived outstate and had little knowledge of her assets or liabilities, we saved the Estate over $100,000 in medical bills by first documenting that the decedent was eligible for Medicare Part A hospital coverage and then negotiating an average discount of 35% from other medical providers.  Our office  worked closely with the Executor (who lived out of state) in securing home insurance, renewing her auto insurance and lapsed license tabs. We even sold her barely used vehicle at market value.  Finally, our office worked closely with the Trust Department of the bank managing her trust assets to facilitate the payment of unpaid bills, taxes and other estate expenses. 

PREPARING ESTATE PROPERTY FOR SALE:  When consulted we are able to recommend reliable real estate agents, home repair contractors and private estate sale firms to sell estate personal property, autos and real estate.  To realize top dollar for real estate, it is important that the property be cleaned and essential repairs be done before putting it on the market.  In a recent probate handled by our law firm, the 3 story, 100 + year old home had not been remodeled since the 1980's, and required major repairs to return it to marketable condition.  The lot was in an ideal location in Minneapolis, but housing prices were at low ebb when the house was put on the market in the spring of 2011.  This Old House sorely needed "essential repairs,"  including plumbing, electrical and exterior-interior cleanup.  After consulting with the client and real estate agent, we decided that to obtain the highest, fair market price for this ‘grand old home’s’ that prospective buyers would be aided with creative architectural plans for potential future remodeling.  Our law firm located and negotiated a contract with a reputable architect and home remodeler for a nominal amount, which assisted the real estate agent in selling the home more quickly at full market value.  The architect prepared several remodeling designs as an illustrative marketing tool for potential home buyers. The savings in negotiating discounts on outstanding medical bills along with the architectural remodeling designs more than paid for our firm's legal fees in probating the entire estate over a one year period!  This is an example of the innovative, cost effective probate service provided by our law firm.                         

WRAPPING UP THE ESTATE:  After consulting with the Executor, when our law firm is confident that all estate assets and liabilities have been identified; after real estate and personal property is sold or distributed under the terms of the will; after individual and estate tax returns are prepared and filed, we then recommend closing out the estate.  Our law firm prepares the notice to beneficiaries of the final distribution of estate assets and the Executor’s intent to close the Estate.  We then request an order from the Probate Court discharging the Executor.  If an unforeseen claim or asset turns up after closing the estate, we can re-open the estate if necessary.  Each estate has its own unique facts and considerations.  Our law firm stands ready to assist you in this difficult time.  In most situations we can guide you through the entire estate process within one year of your loved one’s death.  Do not hesitate to call us at (612) 379-2440 for a free initial thirty minute consultation regarding estate planning or probating an estate.

Prepared by William Seeley, Attorney at Law
February 23, 2012

 


 

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