Minnesota Estate Planning Questions & Answers

Q: My mother is going in Assisted living. She will pay until her money runs out then go on Elderly waiver.

1 Answer | Asked in Estate Planning for Minnesota on
Answered on Feb 6, 2019
Joshua Damberg's answer
Medical Assistance laws, including Elderly Waiver (EW), are incredibly complicated and can have harsh penalties if there are any financial issues or reporting mistakes. Also important to remember is that each state has its own Medicaid laws (Medical Assistance in MN), so you cannot rely on an attorney in New York to advise upon laws here in Minnesota or vice versa. Depending upon your mother's age, health care needs, and financial circumstances, Elderly Waiver may or may not be the appropriate...

Q: Does the principle have to be present at a TX bank, if both co-agents of a DPOA want to modify the principles account?

1 Answer | Asked in Contracts, Estate Planning and Family Law for Minnesota on
Answered on Feb 6, 2019
Joshua Damberg's answer
Generally, the answer to this is no. The Principal should not need to be present for his or her Attorney(s)-in-Fact to use the Power of Attorney document. In light of the recent epidemic of misuse of POAs and the exploitation of the elderly, many banks have attempted to institute additional policies and layers of red tape. So long as the Power of Attorney was validly executed, the bank SHOULD recognize it. You and/or your cousin may need to push back against bank policy and make the institution...

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: I'm 78, own no property, have no debts, and am relatively healthy. Do I still need to make a will?

1 Answer | Asked in Estate Planning for Minnesota on
Answered on Dec 11, 2018
Joshua Damberg's answer
The answer to this question depends on what you would like to happen with your assets after you pass away. Minnesota does have a default estate plan for individuals who die without a Will. This process is called Intestacy. Basically, Minnesota law will assume that your closest living relatives are the people you would have selected to inherit from you if you would have made a Will. If you want someone other than your closest family to inherit from you, such as a more distant relative, a friend,...

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: I received moneys from a will. I signed the check and there was a disclaimer that this was final payment from the estate

1 Answer | Asked in Estate Planning for Minnesota on
Answered on Aug 7, 2018
Stefan Dunkelgrun's answer
it depends. If you are the named beneficiary of the life insurance policy, the payment should go directly to you, and not through the estate. If the estate is the beneficiary of the life insurance policy, then the estate would receive the payout and distribute it to the appropriate heirs

Q: I am curious about an inheritance that my husband got under the stipulations he doesn’t get it till we are divorced

1 Answer | Asked in Estate Planning for Minnesota on
Answered on Aug 7, 2018
Stefan Dunkelgrun's answer
Such a stipulation would be null and void as against public policy

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: I live with my father who doesn't have a will - if he dies, will I get to stay in our condo?

1 Answer | Asked in Estate Planning for Minnesota on
Answered on Jun 1, 2018
Ben F Meek III's answer
The answer will depend on many things, only one of which is your father's having a Will. First, if the condo is subject to a mortgage, the mortgage will have to be satisfied. So, your father could leave you the condo and if his Will provides for payment of his debts and he has other assets sufficient to pay off the mortgage, the condo would presumably be yours free from the mortgage (after it is paid off). If he does not have other assets sufficient to pay the mortgage, you would have to pay...

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 8, 2018
Kenneth V Zichi's answer
Depends on what those 'papers' are. A beneficiary designation for a specific account? Then it is what controls.

Notes from a discussion? That means little.

To provide a real answer however, you're going to need to speak with a local attorney who can read EVERYTHING and make a judgment about what controls.

--This answer is provided for informational purposes only and does not create an attorney - client relationship. If you need legal advice you should consult with a...

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...

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