Questions Answered by Scott Maki

Q: What happens if we can't locate my mom's will after she passes?

1 Answer | Asked in Estate Planning for Minnesota on
Answered on Dec 11, 2018
Scott Maki's answer
Unfortunately, if you cannot find her Will, her estate will be treated as if there never was a Will. Her estate will then follow the MN rules of Intestate Succession.

Here is a link to the MN Rules, if that helps: https://www.revisor.mn.gov/statutes/cite/524.2-101

Thanks for the question and Best Wishes!

Q: What need to be done to protect my property from state.

1 Answer | Asked in Estate Planning for Minnesota on
Answered on Aug 15, 2018
Scott Maki's answer
Thank You for your question. The best way to ensure your heirs inherit your property while protecting it from creditors - especially medical providers and the like, is to transfer it into an Irrevocable Trust.

The Trust will then own the property, not you. This is important because if you have any control over the property, then you creditors will have access to it as well.

Please note, even if you tranfer ownership of your property into an Irrevocable Trust, you can still...

Q: Can I leave all my property to my children and protect from creditors, hospitals...etc.

1 Answer | Asked in Estate Planning for Minnesota on
Answered on Aug 15, 2018
Scott Maki's answer
Thank You for your question. The best way to ensure your heirs inherit your property while protecting it from creditors - especially medical providers and the like, is to transfer it into an Irrevocable Trust.

The Trust will then own the property, not you. This is important because if you have any control over the property, then you creditors will have access to it as well.

Please note, even if you tranfer ownership of your property into an Irrevocable Trust, you can still...

Q: Q: Can my special needs relative receiving SSI pay me for assisting him with his mom's final arrangements.

1 Answer | Asked in Estate Planning and Social Security for Minnesota on
Answered on Jul 19, 2018
Scott Maki's answer
Thank You for your question.

I actually answered it the first time you posted it last week... But in case you missed it, here is my answer again:

The short answer: Yes. Assuming there was a Will, and your relative was named Executor, he is free to seek whatever reasonable assistance is needed to carry out his duties.

Being an Executor is work, as are all the duties necessary to carry his responsibilities. As long as you are performing tasks directly related to settling...

Q: Can my special needs relative receiving SSI pay me for assisting him with his mom's final arrangements.

1 Answer | Asked in Estate Planning and Social Security for Minnesota on
Answered on Jul 17, 2018
Scott Maki's answer
Thank You for your question. The short answer: Yes. Assuming there was a Will, and your relative was named Executor, he is free to seek whatever reasonable assistance is needed to carry out his duties. Being an Executor is work, as are all the duties necessary to carry his responsibilities. As long as you are performing tasks directly related to settling the estate, you BOTH should be getting paid - from Estate funds (it is understandable that he may not want to accept a fee since it is his...

Q: Can I leave all of my property to just one of my children?

1 Answer | Asked in Estate Planning for Minnesota on
Answered on May 11, 2018
Scott Maki's answer
The short answer is Yes, you can leave all of your property to just one child. However, in order to accomplish that, you will need to specify those wishes clearly in properly drafted estate planning documents.

Generally, it is assumed that if a decedent doesn't have a spouse, that he/she would want their property distributed evenly among their first generation of heirs (their children, and/or their children's heirs if they pre-decease). This distribution is known as 'per stirpes'....

Q: I've heard we should consider putting someone's house in trust before you put them in assisted care

1 Answer | Asked in Estate Planning for Minnesota on
Answered on Apr 21, 2018
Scott Maki's answer
Thanks for your question. The answer likely depends on WHEN they enter assisted care.

The best bet is often to transfer a home into an Irrevocable Medicaid Asset Protection Trust, but there are exceptions (have a spouse in remaining in the home, have an adult child who has been living in the home for at least 2 years who prevented the person from entering a long-term care facility BECAUSE they were that persons caretaker, or they have a disabled child). Additionally, in all other cases,...

Q: What are the tax benefits/disadvantages of selling land in MN before vs. after the owner's death.

2 Answers | Asked in Estate Planning for Minnesota on
Answered on Mar 31, 2018
Scott Maki's answer
Thanks for your question. And it was good for you to ask BEFORE selling the property, because there IS a big tax disadvantage to selling the property now - it's called "step-up in basis."

If your mother sells her home now and does not buy a replacement, she will likely lose the homeowners exemption for capital gains on the sale.

If they only paid $1 for the land, then her "tax basis" on the property is $1. Therefore, if land the land is now worth $50,000 (just a hypothetical...

Q: What takes precedence at death, the will or the papers from financial planning?

2 Answers | Asked in Estate Planning for Minnesota on
Answered on Feb 13, 2018
Scott Maki's answer
It depends on the asset. Here are some examples:

-If the person created a Trust as part of their financial plan, the Trust controls all assets named in the Trust.

-If a Trust was NOT created then:

--If there was real estate, then MN REQUIRES the Will to go through probate if it was either in his/her name alone or as a "tenant in common" with someone else.

--If the financial papers did things known as Probate Avoidance techniques, then the financial papers; such...

Q: Is it illegal to deposit money into my deceased father’s account so the mortgage is paid with automated withdrawal?

1 Answer | Asked in Estate Planning for Minnesota on
Answered on Jan 27, 2018
Scott Maki's answer
Thank You for the question!

No, it is not illegal to ADD money to an account. However, keep accurate records of when, how much and why.

But this raises some important questions: who is handling your deceased father's estate? Did he have a Will, and is there an Executor? Are you the Executor? Is this just a measure to maintain the assets until the Executor (or Administrator, if he didn't have a will) is appointed?

The Executor has a duty to protect all assets of the...

Q: Quit claim deed in regards to living trust

1 Answer | Asked in Estate Planning for Minnesota on
Answered on Jan 22, 2018
Scott Maki's answer
"Successor" trustee just designates who will be trustee of the living trust in the FUTURE - after the original grantor of the living trust dies or becomes incapacitated.

However, when the original grantor does or becomes incapacitated, your sister will then BECOME "trustee" and no longer be the "successor trustee" for the purposes of trust administration (the "trustee" is NOW, the "successor trustee" is the in the FUTURE).

I hope I understood your question and helped to...

Q: A personal care agreement was added to an irrevocable trust under an amendment created by trustee.

1 Answer | Asked in Estate Planning for Minnesota on
Answered on Jan 11, 2018
Scott Maki's answer
If the Trust is indeed irrevocable, the GRANTOR typically cannot change/cancel the Trust without the consent of all the Beneficiaries (at a minimum - the Trust documents may not even allow that).

However, after assets are transferred into the irrevocable Trust, the TRUSTEE then assumes control of those assets - but only as directed within the Trust documents themselves. Therefore, any attorney would need to see the actual Trust documents to see if the Trustee was given the "discretion"...

Q: If a couple is married, can a husband leave a wife out of his will - including his shared of any assets jointly owned?

1 Answer | Asked in Estate Planning for Minnesota on
Answered on Dec 22, 2017
Scott Maki's answer
The answer for Minnesota is No, you cannot completely disinherit your spouse.

Rather than me including the MN Statute, here is the link to the MN Elective Share Statute:

https://www.revisor.mn.gov/statutes/?id=524.2-202

You will see it also refers to the "augmented estate" so here is the link to that definition:

https://www.revisor.mn.gov/statutes/?id=524.2-203

Sorry, I cannot make it clearer, but the statutes are pretty straight-forward (for as far as...

Q: how can i prove the last will and testament is not true that my estate has been taken from me by my fathers family,

1 Answer | Asked in Family Law, Real Estate Law and Estate Planning for Minnesota on
Answered on Dec 14, 2017
Scott Maki's answer
Hello, Thank You for your question! Unfortunately, the work you need to do is with the Arizona court where this was handled, not in a Minnesota court. But regardless, to get started, you will need a copy of the Will. Luckily, a Will that went through probate is a matter of public record (I am assuming here that the Will went through Arizona's probate system). Here is how you get a copy:

Step 1:

- IF the Will went through Probate in Arizona, locate the probate court that handled...

Q: My cousin died intestate. She was a Minnesota resident. She has no living immediate family; parents, sibling deceased;

2 Answers | Asked in Estate Planning for Minnesota on
Answered on Dec 14, 2017
Scott Maki's answer
Thank You for your question! Minnesota has set out in Statute the order of preference when determining descendants if a Minnesota resident (or someone who has an interest in real estate in Minnesota) dies without a Will (known as "Intestate"). These rules are called "Intestate Succession." Below, you I have included an exact copy of Minnesota's intestate succession order of preference. As you will see, Minnesota law treats everyone in each succession generation equally - alive OR deceased - IF...

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