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Minnesota Estate Planning Questions & Answers
1 Answer | Asked in Estate Planning for Minnesota on
Q: My Mother recently died before she could set up a supplemental needs trust for me. Can a third party still do this?
Nina Whitehurst
Nina Whitehurst answered on Feb 26, 2020

If your mother died without a will or trust or if her will or trust provides for outright distribution of your inheritance to you, then the best you can do is create your own first party supplemental needs trust if you are still young enough to be eligible. There are other options such as a pooled... Read more »

1 Answer | Asked in Elder Law, Estate Planning and Probate for Minnesota on
Q: Need a lawyer for neglect and Financial Explotation of vulnerable adult. He's his own gaurdian, but needs advocate.
Corwin Kruse
Corwin Kruse answered on Jan 27, 2020

You will need an attorney who specializes in Estates, Trusts, and Probate.

1 Answer | Asked in Estate Planning and Probate for Minnesota on
Q: What is the legal procedures of obtaining a death certificate in the state of Minnesota

ok what the deal is when my dad passed away I had to sign for a release of a death certificate of my dad with the funeral home for my stepbrother who is not a biological son of his. But yet they gave my dad's girlfriend 10 death certificates without me signing for the release of any death... Read more »

Joshua Damberg
Joshua Damberg answered on Dec 23, 2019

Obtaining a death certificate in Minnesota is a pretty simple process. The Office of Vital Records is responsible for maintaining death records. Each county has its own office location.

To receive death certificates you must complete an application requesting the certificates, provide valid...
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1 Answer | Asked in Family Law, Estate Planning and Child Support for Minnesota on
Q: Can my husband keep my children from me if there is no custody or visitation through the courts
Tammy Lyn Wincott
Tammy Lyn Wincott answered on Dec 18, 2019

Usually, until a court order is established either parent is entitled to possession of the child. Some states give the mother possession depending on the age of the child. Seek the advice of a family law attorney as soon as possible.

1 Answer | Asked in Estate Planning and Probate for Minnesota on
Q: If an estate is in a trust but worth over 2.1 million in WA is it required to go to probate? We are being told it is and

Are confused

Joshua Damberg
Joshua Damberg answered on Nov 19, 2019

I'm unsure why this is posted in the Minnesota jurisdiction, but the answer should generally be "no". A Trust is a vehicle designed specifically to avoid probate, no matter where it is created or where the person who created it (called the Settlor or Trustor) passes away.

The issue MAY be...
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1 Answer | Asked in Estate Planning and Probate for Minnesota on
Q: Can an obvious mistake of naming a long-time estranged adopted grandchild as beneficiary to a trust be corrected?

My 79 yo father created a revocable trust in 2015, he was original trustee. Trust named his 6 children as equally-divided beneficiaries, & the "beneficiary's issue" if the child has died. My brother died March, 2019; my father died August, 2019. My brother married twice. No marriage produced... Read more »

Nina Whitehurst
Nina Whitehurst answered on Nov 14, 2019

That mistake is probably going to be difficult if not impossible to correct. This is why estate plans should be reviewed and updated periodically. The only way for any attorney to be able to provide you with definitive advice would be to review the actual wording of the trust instrument. This is... Read more »

1 Answer | Asked in Estate Planning for Minnesota on
Q: My wife is not fit to make financial decisions. Does she also need a durable financial power of attorney and a will?

We have very little money and possessions. If I die first, I want her to have the benefit of any finances remaining. I will soon be assigning an executer and durable power of attorney and just want her to be taken care of.

Nina Whitehurst
Nina Whitehurst answered on Oct 13, 2019

To complies your goal of leaving everything to your wife, a wil gets the job done but if she is not good with handling her finances trust is far superior because it avoids probate and her inheritance could remain in trust under professional management.

If you are concerned about her...
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1 Answer | Asked in Estate Planning for Minnesota on
Q: I am a personal representative for my mother's estate and have a question on dividing it up.

I have three other siblings whom three of us had borrowed money in the past. I borrowed $6,000 in 1983 and paid it back nine months later. I have a sister that borrowed $5,000 in 1975 and never paid it back. This is noted in the will.

Can I charge her interest on the amount or at least... Read more »

Nina Whitehurst
Nina Whitehurst answered on Sep 26, 2019

This question really cannot be answered without reviewing the precise language in the will and the promissory note evidencing the $5,000 loan. The question about whether the loan bears interest is actually a little more complicated than you think. It gets even more complicated if there is no note... Read more »

1 Answer | Asked in Estate Planning for Minnesota on
Q: Can a conservator elect to remove designated beneficiaries of annuity accounts and then roll them into an estate and wh

My grandmas conservator chose to remove beneficiaries of investment annuity accounts and transfer them into her estate for probate. My grandma already had assets in her estate to cover any expenses, and after she was deemed incompetent by the court, her attorney submitted a new will and sealed it... Read more »

Nina Whitehurst
Nina Whitehurst answered on Sep 6, 2019

There might have been legitimate reasons, but it sure does sound fishy to me. If I were you, I would hire a local probate attorney and petition the court to appoint you executor and to probate her previous will or, if you can't find it, to probate her estate as an intestate estate. That will get... Read more »

2 Answers | Asked in Estate Planning and Elder Law for Minnesota on
Q: Is there any way to protect a family property from a potential Medicaid claim in MN? what are options for transferring?

This is a lake property. In past years we ran it as a resort. For 20 years I worked (unpaid) at the resort. I feel I have a vested interest in the property. My parents want to transfer the property to me and move to senior living. We met with an attorney. She gave us two options. My parents could... Read more »

Nina Whitehurst
Nina Whitehurst answered on Aug 30, 2019

An irrevocable trust that does NOT reserve to the settlor the ability to change beneficiaries but it still classified as a "grantor" trust, the assets of which are includable in your parents' estate, would solve your problem with respect to ensuring you get the property eventually and don't lose... Read more »

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1 Answer | Asked in Estate Planning and Real Estate Law for Minnesota on
Q: Can a title be transferred to a Trust at closing after a seller has pre-signed paperwork?

The seller won't be at closing and pre-signed all paperwork but the title needs to be transferred to a trust without ever being put into the name of the buyer. It needs to go directly into a Trust. Can this be possible if the seller pre-signed?

Nina Whitehurst
Nina Whitehurst answered on Aug 24, 2019

If the seller has already signed the deed to the buyer, then no, not without having the seller sign a deed directly to the trust instead, and if you are going to do that, then there are other papers that will need to be signed and some redone as well. There needs to be an assignment of escrow from... Read more »

1 Answer | Asked in Estate Planning and Probate for Minnesota on
Q: Adopted sister and possible lack of a will

She was adopted as a baby and is now 42. If she doesn't have a will, or that her wishes are spelled out, will her biological mother/siblings be entitled to what she owned after she passes away, or would it go to her adopted family?

Joshua Damberg
Joshua Damberg answered on Aug 20, 2019

If someone passes away without a Will, they are deemed to have died Intestate. Minnesota then sets forth a "default estate plan" for the person. This default plan basically sets forth that the persons closest living family members have priority to act as the Personal Representative (or Executor)... Read more »

1 Answer | Asked in Estate Planning and Probate for Minnesota on
Q: My sister aka executer of my dad's will is not giving me my portion dad has a pension in one account for $35k and $35k

In his personal bank account. She said that in a few years when she is in a lower tax bracket then she would give it out. Nothing went to probate and has done not followed thru with her fiduciary duties. He passed in 2017. Can creditors come this late collect any monies?? This has been difficult... Read more »

Joshua Damberg
Joshua Damberg answered on Aug 15, 2019

This question should be reviewed in detail by a probate attorney. The largest issue here is probate assets versus non-probate assets. While your sister may be the Executor of the Will, this only extends to probate assets (or assets in your father's name alone with no beneficiary designations when... Read more »

1 Answer | Asked in Estate Planning for Minnesota on
Q: I am presented with receipt and release to release the executor. I don't trust her. Do I have to sign?

I don't have a formal complaint. But what if I find out months after I sign that she stole from the estate?.

Joshua Damberg
Joshua Damberg answered on Aug 15, 2019

Prior to signing a receipt and release of the Executor (or Personal Representative), a beneficiary of the estate has the opportunity to review a detailed accounting of the estate. An accounting should set forth the probate assets and the payments made by the estate. These payments can include... Read more »

1 Answer | Asked in Criminal Law, Estate Planning, Landlord - Tenant and Probate for Minnesota on
Q: What Minnesota law was broken if a deceased person's property was removed before 30 days had passed?

Nothing was filed in Probate. No executor nor representative was appointed. As far as I can tell, no one had a legal right to even enter the deceased person's apartment, let alone remove all property.

Thomas C Gallagher
Thomas C Gallagher answered on Jul 16, 2019

As a criminal defense lawyer, I don't know which, if any, such law exists. Perhaps it does. When someone claims a law, unless it's a criminal law I generally ask them for the Statute citation number. Then we can read it online. If the problem relates to disposition of the personal property of a... Read more »

1 Answer | Asked in Estate Planning for Minnesota on
Q: My mother is going in Assisted living. She will pay until her money runs out then go on Elderly waiver.

She needs me to help pay until her house sells. Will they come back on me if she repays me from the house sale?

Please respond to

Joshua Damberg
Joshua Damberg answered on Feb 6, 2019

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... Read more »

1 Answer | Asked in Contracts, Estate Planning and Family Law for Minnesota on
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?

My cousin and I are both the agents (acting jointly) for our Aunt, who's 79 yrs old, on a durable power of a attorney.

The Principle has diminished mental capacity, is a US citizen currently living in the Philippines. One agent is in Nevada, the other agent is in Minnesota. Only one agent... Read more »

Joshua Damberg
Joshua Damberg answered on Feb 6, 2019

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... Read more »

1 Answer | Asked in Estate Planning for Minnesota on
Q: What happens if we can't locate my mom's will after she passes?
Scott Maki
Scott Maki answered on Dec 11, 2018

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...
Read more »

1 Answer | Asked in Estate Planning for Minnesota on
Q: I'm 78, own no property, have no debts, and am relatively healthy. Do I still need to make a will?
Joshua Damberg
Joshua Damberg answered on Dec 11, 2018

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... Read more »

1 Answer | Asked in Estate Planning for Minnesota on
Q: What need to be done to protect my property from state.

I have one house and one town home. I want to make sure that 100% of my property will go to my children only. Not to the state or medical bills or creditors.

Scott Maki
Scott Maki answered on Aug 15, 2018

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...
Read more »

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